Weekly Newsletter 014/2019

Weekly Newsletter 014/2019



Kenya Law

Weekly Newsletter


Supreme Court affirms the declared results for the gubernatorial election for Wajir County held on August 8, 2017.
Mohammed Abdi Mahamud v Independent Electoral & Boundaries Commission & 4 others
Petition 7 of 2018
Supreme Court of Kenya at Nairobi
D K Maraga, CJ & P, M K Ibrahim, J B Ojwang, S C Wanjala, Njoki Ndungu, I Lenaola, SCJJ
February 15, 2019
Reported by Beryl Ikamari & Mathenge Mukundi

Download the Decision
 

Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction of the Supreme Court under article 163(4)(a) of the Constitution-matters of constitutional interpretation and application-whether a question relating to a candidate's educational qualifications and eligibility to vie for the post of governor was a question of constitutional interpretation and application over which the Supreme Court had jurisdiction-Constitution of Kenya 2010, articles 163(4)(a), 180(2) & 193(1); Elections Act, No 24 of 2011, section 22(1)(b)(ii).

Electoral Law-pre-election disputes-disputes arising at the nominations stage-disputes that were capable of being resolved by the IEBC or Political Parties Disputes Tribunal (PPDT)-dispute relating to the eligibility of a candidate to contest in a gubernatorial election based on allegations of failure to meet the requisite academic qualifications-circumstances under which an election court could determine such a dispute.

Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction of the Supreme Court under article 163(4)(a) of the Constitution-matters that were not determined at the Court of Appeal-whether the Supreme Court could consider and make determinations with respect to matters that were left unresolved at the Court of Appeal-Constitution of Kenya 2010, articles 163(4)(a).

Electoral Law-gubernatorial elections-eligibility of candidates to contest for the post of governor-academic qualifications-claim that a declared winner in a gubernatorial election was not eligible to contest in the election as he lacked the requisite academic qualifications-whether the result of the election would be nullified.

Electoral Law-gubernatorial elections-deputy governor-whether the post of deputy governor was elective.


Brief facts:

The appellant filed his appeal to the Supreme Court challenging the Court of Appeal judgment that affirmed the annulment of the gubernatorial election for Wajir County. The appellant was declared as the governor-elect pursuant to the gubernatorial election for Wajir County, held on August 8, 2017.
Aggrieved by the declaration, the 1st and 2nd respondents filed an election petition at the High Court at Nairobi challenging the election, on the grounds, inter alia, that, contrary to section 22(2) of the Elections Act, he was not constitutionally and statutorily qualified to contest for the seat. The degree certificate he submitted to the Independent Electoral and Boundaries Commission (IEBC) for nomination to vie, was a fraud. The respondents also alleged that the conduct of the election was fraught with violence, intimidation and numerous illegalities and irregularities, which affected both the credibility and results of the election.
After hearing the election petition, the High Court found that, contrary to section 22(2) of the Elections Act, the appellant did not possess the requisite academic qualifications to vie in the election. That in the conduct of the election, the 3rd and 4th respondents committed several irregularities and illegalities (including compromising the principle of the secrecy of the ballot-where despite majority of the voters being unable to read and write; only four Form 32 were duly filled and submitted, meaning the other assisted voters were not recorded, and results posted on Form 37C were neither accountable nor verifiable.) The Court said that the irregularities affected both the credibility and the results of the election. The High Court nullified the appellant’s election as the governor of Wajir County, and directed the IEBC to hold a fresh election in strict accordance with the Constitution and the electoral laws.
Being dissatisfied with the trial Court decision, the appellant appealed to the Court of Appeal, mainly faulting the High Court for assuming jurisdiction in the pre-election nomination dispute which article 88 (4) (e) of the Constitution reserves for IEBC, and for determining that the appellant was not academically qualified to contest in the election. The appellant further faulted the trial Court, for finding that the irregularities and illegalities committed, impugned the credibility and affected the result of the election. The 3rd and 4th respondents also cross-appealed on similar grounds, but they mainly disputed the finding by the trial Court that the conduct of the election was fraught with irregularities and illegalities which undermined its integrity and affected the results of the impugned election.
The Court of Appeal after hearing the election petition appeal concurred with the High Court, that the appellant did not possess the requisite academic qualifications to contest in the election. Having declared so, the Court of Appeal considered the other grounds and the cross-appeal to be moot. Consequently, it dismissed the appeal with costs, and also dismissed the cross-appeal, with no order as to costs.
The Court of Appeal decision provoked the filing of two appeals before the Supreme Court. The first appeal, Petition No. 7 of 2018, filed on May 7, 2018, was by the appellant. The second appeal, Petition No. 9 of 2018, filed on June 5, 2018 the 3rd and 4th respondents. With the consent of the parties, those appeals were consolidated on June 11, 2018. The appeal at the Supreme Court challenged the Superior Courts’ findings that the election courts had jurisdiction to entertain pre-election nomination disputes, that the appellant lacked eligibility and/or the requisite academic qualifications to vie in the election and that the conduct of the election was fraught with illegalities and irregularities which undermined its integrity and affected its results. The appellant also faulted the Court of Appeal for failing to consider all grounds of the appeal and cross-appeal before it.
The Supreme Court allowed the appellant to adduce additional evidence on his academic qualification to contest in the election. It also allowed Ahmed Ali Muktar, the deputy governor of Wajir County, to be joined as an interested party in the appeal.

Issues:
  1. Whether the Supreme Court had jurisdiction to entertain the appeal.
  2. Whether the High Court, sitting as an election court, had jurisdiction to entertain a pre-election dispute arising from nominations, notwithstanding the provisions of article 88 (4) (e) of the Constitution, and section 74(1) of the Elections Act.
  3. Whether the Supreme Court had jurisdiction to determine issues that were not addressed by the Court of Appeal.
  4. Whether or not the appellant had the requisite academic qualification to vie for the position of governor for Wajir County.
  5. Whether the position of deputy governor was elective.
Held:
  1. Questions relating to eligibility to vie for the post of county governor were constitutional questions. Article 180(2) and 193(1) of the Constitution provided for that eligibility and it included satisfying educational requirements provided for in the Constitution or statute. Therefore the question as to whether the appellant met constitutional and statutory qualification necessary in order to vie for governor was a constitutional question.
  2. The High Court and the Court of Appeal considered whether the appellant was academically qualified to participate in the impugned elections. The issue on academic qualifications was an issue relating to constitutional interpretation and application which the Supreme Court could consider under article 163(4)(a) of the Constitution.
  3. The issue relating to whether the question on academic qualifications was a pre-election dispute, which the election courts had no jurisdiction to hear in light of article 88(4) (e) of the Constitution was also an issue of constitutional interpretation and application. The Supreme Court had jurisdiction to hear and determine it.
  4. The Supreme Court had the jurisdiction to hear and determine the appeal. The Superior Courts’ concurred that the impugned election was not conducted in accordance with the constitutional provisions, particularly, article 86 (a) of the Constitution and the Supreme Courtwas urged to determine whether the Superior Courts had jurisdiction to entertain pre-election disputes emanating from nominations article 88(4) (e) of the Constitution and the eligibility of a person to vie for the post of county governor under article 180(2) as read together with article 193(1) of the Constitution. There was no doubt that the Supreme Court had the jurisdiction to hear and determine the appeal.
  5. There were conflicting judicial opinions, on whether an election court had jurisdiction to determine pre-election disputes emanating from nominations notwithstanding the provisions of article 88(4) (e) of the Constitution and section 74 (1) of the Elections act. Nonetheless, the Election Court retained the jurisdiction to determine pre-election disputes.
  6. The Constitution had to be interpreted holistically and purposively and a court of law had to keep in mind the fact that the Constitution could not subvert itself. Every constitutional provision supported the other, and none could be read so as to render another inoperable.
  7. So as to ensure that article 88 (4) (e) of the Constitution was not rendered inoperable and to preserve the efficacy and functionality of an election court under article 105 of the Constitution, the following guiding principles were applicable:-
    1. all pre-election disputes, including those relating to or arising from nominations, should brought be for resolution to the IEBC or Political Parties Disputes Tribunal (PPDT), as the circumstances required, in the first instance;
    2. where a pre-election dispute had been conclusively resolved by the IEBC, PPDT, or the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under article 165 (3) and (6) of the Constitution, such dispute would not be the subject of a petition filed at the Election Court;
    3. where the IEBC or PPDT resolved a pre-election dispute, any aggrieved party could appeal the decision to the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under article 165 (3) and (6) of the Constitution; the High Court would have to hear and determine the dispute before the elections, and in accordance with the constitutional timelines;
    4. where a person knew or ought to have known of the facts forming the basis of a pre-election dispute, and chose through any action or omission, not to present the same for resolution to the IEBC or PPDT, such dispute would not be a ground in a petition to the Election Court;
    5. the action or inaction in (d) above would not prevent a person from presenting the dispute for resolution to the High Court, sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under article 165 (3) and (6) of the Constitution, even after the determination of an election petition;
    6. in determining the validity of an election under article 105 of the Constitution, or section 75 (1) of the Elections Act, an election court had power to look into a pre-election dispute if it determined that such dispute went to the root of the election, and that the petitioner was not aware, or could not have been aware of the facts forming the basis of that dispute before the election.
  8. Both the Election Court and the Court of Appeal wrongly assumed jurisdiction, in determining a pre-election dispute, regarding the academic qualifications of the appellant. The High Court should entertain such a matter only when sitting as a judicial review court, or exercising its supervisory jurisdiction under article 165 (3) and (6) of the Constitution.
  9. In the absence of a determination by the Court of Appeal on an issue, no appeal could properly lie before the Supreme Court in exercise of its appellate jurisdiction.
  10. The Supreme Court lacked the jurisdiction to hear and determine the issue as to whether or not the appellant had the requisite academic qualifications to vie for the position of Governor for Wajir County, which was a pre-election dispute.
D K Maraga, CJ & P, SCJI & Lenaola, SCJ  (dissenting)
Per D K Maraga, CJ & P, SCJI
  1. Questions relating to eligibility to contest in gubernatorial elections were questions of constitutional application and interpretation. Article 180(2) and 193(1) of the Constitution provided for qualification to be met in order for one to be eligible to contest for the post of governor. The Supreme Court could assume jurisdiction over the issue on eligibility to participate in the gubernatorial elections as both the High Court and the Court of Appeal considered it.
  2. A question on whether elections were not conducted in accordance with the Constitution and the law as the secrecy of the ballot was not observed contrary to article 81(1)(e) of the Constitution, was a constitutional question. It was considered at the High Court and was part of the High Court's determination.
  3. Article 193 (1) (b) of the Constitution as read together with section 22 (1) (b)(ii) of the Elections Act prescribed the academic qualification of a university degree in order to qualify for election to a gubernatorial position. A university degree was a prerequisite for election to the position of county governor.
  4. There was no compelling evidence ascertaining the legitimacy of the appellant’s academic certificates. There was no option available to the Court but to affirm the concurrent Superior Courts’ findings that the appellant did not possess the requisite academic qualifications to contest in the election and that his election was therefore null and void.
  5. Any dispute that questioned one’s qualification or eligibility to vie in an election was invariably a challenge about the integrity or validity of that election. As such, even though article 88(4)(e) of the Constitution vested IEBC with jurisdiction to handle that category of disputes, a purposive reading of other provisions of the Constitution would show that the elections courts were also vested with jurisdiction to entertain them. Where the Constitution provides for two or more methods of resolving disputes, none could exclude the other. Therefore in such cases, the decision of the forum that had constitutional finality in resolving the dispute would prevail.
  6. The vacancy in the position of a governor referred to in article 182 of the Constitution would arise after a successful and unchallenged election or after the same was duly upheld after a challenge. In case of an election petition challenging the election of the governor, the interested party’s contention that where the governor would be declared ineligible to hold office and the deputy governor would assume the position of Wajir county governor for the rest of the term, was untenable.
  7. The petitioner had the legal burden of proving allegations in an election petition. The 1st respondent bore the burden of proving that the appellant degree certificate was not genuine. Considering the evidence that was adduced before the trial Court, it was clear that the burden of proof was successfully discharged, and therefore, the evidentiary burden shifted to the appellant to rebut the challenge on the authenticity of his academic qualification.
  8. The election courts were vested with the overarching jurisdiction to determine the validity of an election. Nominations and determinations of qualification to vie were part of the continuum consisting in a plurality of stages that made up an election. Before the Election Court certified under section 83 of the Elections Act that an election was conducted in accordance with the constitutional principles on elections, it had to satisfy itself that the constitutional criteria for such an election had been met at every stage. The High Court, as the Election Court, had jurisdiction to determine the validity of a pre-election nomination dispute that questioned the appellant’s educational qualifications to contest in the Wajir County gubernatorial election.
  9. Sections 20 and 21(3) of the Supreme Court Act and rule 3(5) of the Supreme Court Rules, 2012 provided for assumption by the Supreme Court of the Court of Appeal’s jurisdiction to determine any issue it omitted or refused to determine. Those provisions unequivocally mandated the Court to assume the jurisdiction of a Superior Court and in the interests of justice, to make any appropriate orders that the Superior Court would or should have made. However, those provisions should be invoked sparingly.
  10. The evidence showed that the conduct of the election fouled the Constitution and affected the results of the election. Had the Court of Appeal considered the other grounds of the appeal, it would have reached the same conclusion as the trial Court.
  11. Even if it had been found that the appellant had the requisite academic qualification to vie in the election, the trial Court’s findings that the conduct of the Wajir County gubernatorial election violated the constitutional principles and affected the result of the election should have been affirmed. Accordingly, the High Court decision to nullify the election results should have been upheld.
    Per I Lenaola, SCJ (dissenting)
  12. Where the dispute before the IEBC was not conclusively determined on merits, then an election court would be obliged to hear and determine such a dispute, if it touched on the validity of an election under article 105(1)(a) of the Constitution. The complaint to the IEBC Dispute Resolution Committee on the academic qualifications of the appellant was dismissed for want of prosecution. The said Committee did not determine the merits of that complaint. Therefore, the Election Court in determining whether an election was valid, could look to issues arising during the pre-election period only to the extent that they had not previously been conclusively determined, on merits, by the IEBC and PPDT.
  13. The Supreme Court lacked jurisdiction to hear and determine matters that were not canvassed at the Court of Appeal. The appeal had to originate from a court of appeal determination where issues of contestation revolved around the interpretation or application of the Constitution. The appellant had to be faulting the Appellate Court on the basis of such an interpretation.
Appeal allowed. Parties were to bear their own costs.
Kenya Law
Case Updates Issue 014/2019
Case Summaries

JURISDICTION Supreme Court upholds the election of the Governor of Lamu County.

Timamy Issa Abdalla v Independent Electoral and Boundaries Commission & 3 others 2019
Petition 34 of 2018
Supreme Court of Kenya
D K Maraga CJ &P; M K Ibrahim, J Ojwang, S Wanjala, N S Ndungu, & I Lenaola, SCJJ
February 6, 2019
Reported by Flora Weru and Kakai Toili

Download the Decision

Jurisdiction- jurisdiction of the supreme Court-appellate jurisdiction-appellate jurisdiction in election petition appeals-principles to be considered-what were the principles to be considered by the Supreme Court before it could entertain an election petition- Constitution of Kenya 2010, article 163
Jurisdiction-jurisdiction of the Court of Appeal-appellate jurisdiction in election petitions- what was the scope of the Court of Appeal’s jurisdiction in election petition appeals-Constitution of Kenya 2010 article 164
Evidence Law-standard of proof-standard of proof in election petitions-the requirement that a party that made allegations had the burden to prove the allegations and the standard of proof applicable to such a party in election disputes -Evidence Act (Cap 80), section 107.
Statutes-interpretation of statutory provisions-interpretation of section 85A of the Elections Act- what was meant by the phrase ‘matters of law only’ as used in section 85A of the Elections Act-Elections Act, No 24 of 2011, section 85A

Brief Facts:
Following the August 8, 2017 general elections, the 3rd and 4th respondents were declared by the 1st respondent (IEBC) as the duly elected Governor and Deputy Governor respectively, for Lamu County. The appellant was aggrieved by the said declaration and filed a petition at the Trial Court challenging the results on the grounds that: the election was not conducted in accordance with the principles laid down in the Constitution, the Elections Act (the Act) and the Regulations made thereunder and that the election was fraught with massive illegalities and irregularities that affected the results of the elections. The appellant thus sought the nullification of the results and an order for fresh elections.
The Trial Court dismissed the appellant’s petition. Aggrieved by the Trial Court’s decision, the appellant filed an appeal at the Appellate Court which dismissed the appeal except in relation to the issue of costs. Aggrieved by the Appellate Court’s decision, the appellant filed the instant appeal. The 3rd and 4th respondents filed a notice of preliminary objection seeking the dismissal of the appeal with costs for being incompetent on the grounds, that the appeal did not raise any matter of constitutional interpretation or constitutional application among other grounds.

Issues:

  1. What were the principles to be considered by the Supreme Court before it could entertain an election petition appeal on electoral issues other than Presidential Election Petitions?
  2. What was the scope of the Court of Appeal’s jurisdiction in election petition appeals?
  3. What was meant by the phrase ‘matters of law only’ as used in section 85A of the Elections Act? Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 38;
1) Every citizen is free to make political choices, which includes the right—

(a) to form, or participate in forming, a political party;
(b) to participate in the activities of, or recruit members for, a political party; or
(c) to campaign for a political party or cause.

(2) Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—

(a) any elective public body or office established under this Constitution; or
(b) any office of any political party of which the citizen is a member.

(3) Every adult citizen has the right, without unreasonable restrictions— Constitution of Kenya, 2010

(a) to be registered as a voter;
(b) to vote by secret ballot in any election or referendum; and
(c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.

Article 81;
The electoral system shall comply with the following principles—

(a) freedom of citizens to exercise their political rights under Article 38;
(b) not more than two-thirds of the members of elective public bodies shall be of the same gender;
(c) fair representation of persons with disabilities;
(d) universal suffrage based on the aspiration for fair representation and equality of vote; and
(e) free and fair elections, which are—

(i) by secret ballot;
(ii) free from violence, intimidation, improper influence or corruption;
(iii) conducted by an independent body;
(iv) transparent; and
(v) administered in an impartial, neutral, efficient, accurate and accountable manner.

Article 86;
At every election, the Independent Electoral and Boundaries Commission shall ensure that—

(a) whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;
(b) the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;
(c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and
(d) appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.

Article 163 (3);
3) The Supreme Court shall have—

(a) exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140; and
(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.

4) 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

Article 164;
3)The Court of Appeal has jurisdiction to hear appeals from—

(a) the High Court; and
(b) any other court or tribunal as prescribed by an Act of Parliament

Elections Act No 24 of 2011
Section 83;
(1) A Court shall not declare an election void for non-compliance with any written law relating to that election if it appears that —

(a) the election was conducted in accordance with the principles laid down in the Constitution and in that written law; and
(b) the non-compliance did not substantially affect the result of the election.

(2) Pursuant to section 72 of the Interpretation and General Provisions Act, (Cap. 2), a form prescribed by this Act or the regulations made thereunder shall not be void by reason of a deviation from the requirements of that form, as long as the deviation is not calculated to mislead.

Section 85A;
(1)An appeal from the High Court in an election petition concerning membership of the National Assembly, Senate or the office of county governor shall lie to the Court of Appeal on matters of law only and shall be—

(a) filed within thirty days of the decision of the High Court; and
(b) heard and determined within six months of the filing of the appeal.

(2) An appeal under subsection (1) shall act as a stay of the certificate of the election court certifying the results of an election until the appeal is heard and determined.

Held:

  1. The Elections Act and the Regulations thereunder, were normative derivatives of the principles embodied in articles 81 and 86 of the Constitution, and in interpreting them, a court could not disengage from the Constitution. However, it could notbe construed as providing a blanket right of appeal to the Supreme Court in all election petition matters from the Appellate Court.
  2. Elections in general, drew legitimacy from the broad lines of the Constitution, and from the electoral laws. That generality, however, had to be crystallized into clearly-defined normative prescriptions, before the Court would take up an election appeal as a matter of course, by virtue of the terms of article 163(4) (a) of the Constitution. Certain principles emerged as follows:
    1. In election petitions, a party could not invoke the Court’s jurisdiction under article 163 (4) (a) of the Constitution, where the Trial Court had found that alleged irregularities and malpractices were not proved, as a basis then did not lie for an application or interpretation of the Constitution.
    2. The articles of the Constitution cited by a party as requiring interpretation or application by the Court, had to have required interpretation or application at the Trial Court, and had to have been a subject of appeal at the Court of Appeal; in other words, the article in question had to have remained a central theme of constitutional controversy, in the life of the cause.
    3. A party seeking the Court’s intervention had to indicate how the Court of Appeal misinterpreted or misapplied the constitutional provision in question. Thus, the said constitutional provision had to have been a subject of determination at the Trial Court.
    4. A party had to indicate to the Court in specific terms, the issue requiring the interpretation or application of the Constitution, and had to signal the perceived difficulty or impropriety with the Appellate Court’s decision.
  3. The Court had jurisdiction to hear and determine the instant matter. The scrutiny report, subject of the matter revealed some irregularities, which in the opinion of both superior courts, did not affect the results. The appellant contended that the interpretation by the Trial court and the Appellate Court were erroneous and that properly invoked the Court’s jurisdiction, as the Court was called upon to determine whether that interpretation was right.
  4. The appellant had throughout the litigation journey of the instant matter maintained that the election was not conducted in accordance with the constitutional principles. Particularly, that the relationship of the 4th respondent and the IEBC prior to the election rendered otiose the principles of impartiality, transparency and neutrality in elections as decreed by article 81 of the Constitution. Further, allegations of ungazetted officials being used to conduct the elections were matters of a constitutional nature that went to the integrity of the election. Thus emerged that at the core of the matter was the interpretation and application of article 81 of the Constitution that the superior courts accorded it.
  5. The appellant also alleged that the Appellate Court abdicated its jurisdiction by not re-evaluating evidence. That allegation went to the scope of the jurisdiction of the Appellate Court as constitutionally provided by article 164(3) of the Constitution vis-a-vis its jurisdiction under section 85A of the Elections Act. Thus, the Court had the requisite jurisdiction to hear and determine the matter.
  6. With specific reference to section 85A of the Elections Act, the phrase matters of law only, meant a question or an issue involving:
    1. the interpretation, or construction of a provision of the Constitution, an Act of Parliament, subsidiary legislation, or any legal doctrine, in an election petition in the trial court, concerning membership of the National Assembly, the Senate, or the Office of County Governor;
    2. the application of a provision of the Constitution, an Act of Parliament, subsidiary legislation, or any legal doctrine, to a set of facts or evidence on record, by the trial court in an election petition in the trial court concerning membership of the National Assembly, the Senate, or the Office of County Governor;
    3. the conclusions arrived at by the trial court in an election petition in the trial court concerning membership of the National Assembly, the Senate, or the Office of County Governor, where the appellant claimed that such conclusions were based on no evidence, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were so perverse, or so illegal, that no reasonable tribunal would arrive at the same; it was not enough for the appellant to contend that the trial court would probably have arrived at a different conclusion on the basis of the evidence.
  7. The appellate jurisdiction of the Appellate Court under section 85A of the Elections Act was a special jurisdiction from its general appellate jurisdiction. That jurisdiction was restricted to matters of law only.Article 164 of the Constitution established the Appellate Court whose jurisdiction was succinctly spelt out in article 164 (3) and its jurisdiction was to hear appeals from the Trial Court and any other court or tribunal as prescribed by an Act of Parliament. Section 3(1) of the Appellate Jurisdiction Act, further espoused the jurisdiction of the Appellate Court and provided that the Appellate Court should have jurisdiction to hear and determine appeals from the trial court in cases in which an appeal lay to the appellate court under any law.
  8. While the Appellate Court, as the first appellate court, would generally re-evaluate evidence of the Trial Court, under section 85A of the Act, that jurisdiction was qualified and restricted. The evaluation anticipated was the evaluation of the conclusions of a trial Court on the basis of the evidence on record. In focus therefore were the conclusions contained in the judgment under appeal and relating them to the evidence on record; whether the conclusions were reasonably drawn from the evidence. The Appellate Court did not and should not, under section 85A re-evaluate evidence and reach its own conclusions
  9. There was no fault on the part of the Appellate Court. It aptly appreciated the limits of its jurisdiction and on each issue held that either the Trial Court’s conclusions were supported by evidence on record, or in most cases, that the Trial Court was right in its conclusion that the irregularity had not been proved, or it had not been shown how the irregularity affected the results. Consequently, Appellate Court exercised its jurisdiction correctly and at no time did it abdicate it.
  10. The Appellate Court aptly appreciated the limits of its jurisdiction and on each issue held that either the Trial Court’s conclusions were supported by evidence on record, or in most cases, that the Trial Court was right in its conclusion that the irregularity had not been proved, or it had not been shown how the irregularity affected the results. Consequently, the Appellate Court exercised its jurisdiction correctly and at no time did it abdicate it.
  11. An application for scrutiny and recount was made and a restricted scrutiny ordered on February 2, 2018. The exercise was done and a Report filed in Court on February 12, 2018. A scrutiny report should not be ignored, though its contents were not binding on the Court. It should be considered, evaluated and either accepted or dismissed.
  12. The Trial Court considered the scrutiny report, thus the appellant’s claim that the Trial Court ignored the scrutiny report were baseless. The report was considered and the irregularities therein appreciated. However, in the opinion of the Trial Court, those errors were minor and could not affect the outcome of the election. The fact that a court’s conclusions on a scrutiny report were against a party was no ground for contesting its consideration. Indeed, the Appellate Court did not consider the scrutiny report. However, it fell into no error as that was a factual issue and it deferred to the Trial Court’s findings.
  13. The two Limbs of section 83 of the Elections Act should be applied disjunctively. A petitioner who was able to satisfactorily prove either of the two limbs of the section can avoid an election. A petitioner who was able to prove that the conduct of the election in question substantially violated the principles laid down in the Constitution as well as other written law on elections, would on that ground alone, void an election. He would also be able to void an election if he was able to prove that although the election was conducted substantially in accordance with the principles laid down in the Constitution as well as other written law on elections, it was fraught with irregularities or illegalities that affected the result of the election.
  14. The interpretation of section 83 of the Act was not an issue before the appellate Court. Before the Appellate Court was the consideration of whether section 83 had been correctly applied by the Trial Court, which issue the Appellate Court held in the affirmative. Upon perusal of the Judgment of the Appellate Court, the Appellate Court fell into no error when it upheld the Trial Court’s application of section 83 of the Act.
  15. Article 81 of the Constitution was a foundational provision as far as the exercise of the sovereign will of the people of Kenya was concerned. At its heart was the burning quest to provide a framework that would enable the people of Kenya to exercise or delegate their sovereignty, which was expressly recognized in article 1 of the Constitution, in accordance with their true free will. To that end, the election management body was under a constitutional obligation not only to deliver free, fair and impartial elections, but also to be seen to do so.
  16. A restrictive interpretation of the principle of impartiality in article 81 of the Constitution could cripple the IEBC and/or infringe the political rights of the citizens. It was a fact that in conducting elections, IEBC, drew its officials from the local community, the same community from which aspiring leaders and candidates to these elective posts came from. A total bar on people who previously worked with IEBC from participating as candidates in elections would have a chilling effect on democracy and the rule of law. It would amount to curtailing the right enshrined in article 38 of the Constitution particularly the right to be a candidate for public office, or office within a political party of which the citizen was a member and, if elected, to hold office. The risk of conflict of interest was legally recognised and mitigated by the requirement for such an employee to resign six months to the election. However, once allegations of lack of impartiality, transparency, fairness and/or improper of influence were proved, then such an election could not stand the test of validity under section 83 of the Act.
  17. The appellant’s allegations that the elections were not conducted in accordance with the constitutional principles of impartiality, transparency, and neutrality were without merit. As a general rule, costs followed the event but the court had the discretion in awarding costs. There was no sufficient reason to depart from that general principle.

Petition dismissed
Orders

  1. The notice of preliminary objection dated September 21, 2018 was disallowed.
  2. The petition of appeal dated September 10, 2018 was dismissed.
  3. For the avoidance of doubt, the declaration of the result of the election by the Independent Electoral and Boundaries Commission in respect of the Governor for Lamu County was affirmed.
  4. The appellant to bear the costs of the respondents
CRIMINAL LAW A victim impact statement is not mandatory but a court can receive and consider it if the court considered it appropriate

Tobias Wanjala Kalenda v Republic [2019] eKLR
Criminal Appeal 147 of 2016
High Court at Bungoma
L. A. Achode J
January 17, 2019
Reported by Flora Weru and Kakai Toili

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Criminal Law-participants in criminal proceedings-victims-victim impact statement- whether a victim impact assessment was mandatory in a criminal suit-Criminal Procedure Code section 329; Victim Protection Act No. 17 of 2014 Section 12
Evidence Law-witnesses-prosecution witnesses-calling of witnesses in a criminal trial-number of witnesses to be called-whether there was a particular number of witnesses required to prove an offence in a criminal trial -Evidence Act (CAP 80) section 143
Criminal Law-obtaining through false pretence-elements-what were the elements required to prove the offence of obtaining money by false pretence -Penal Code section 313
Criminal procedure-judgments-structure of judgments-content and mode of delivery of judgments- what were the legal requirements of a judgment with regard to its content and mode of delivery- Criminal Procedure Code section 168 & 169
Criminal Law-prosecutions-institution of prosecutions-persons authorized to institute prosecutions-police officers-police officers of the rank of inspector-whether police officers of the rank of inspector could institute prosecutions-Constitution of Kenya, 2010, article 157; Office of the Director of Public Prosecutions Act, sections 2 &20

Brief facts:
The appellant and his co accused were alleged to have conspired to defraud the complainant of Kshs. 600,000/- by use of delivery invoices by falsely pretending that a consignment of fertilizer worth Kshs. 600,000/- had been delivered to the complainant. It was further alleged that the appellant fraudulently obtained Kshs. 600,000/-by falsely pretending that he delivered the consignment of fertilizer. The appellant and his co-accused were charged with the offence of conspiracy to defraud in count 1 and the appellant was charged alone with the offence of obtaining money by false pretence in count 2. The appellant and his co-accused were acquitted in count I. However, appellant was found guilty in count II, and ordered to pay the complainant the entire amount of Kshs. 600,000/- in monthly installments of Kshs. 30,000/- and in default to serve three years imprisonment.

Issues:

  1. Whether a victim impact assessment statement was mandatory in a criminal suit.
  2. Whether there was a particular number of witnesses required to prove an offence.
  3. What were the elements required to prove the offence of obtaining money by false pretence?
  4. What rank of police officers could institute prosecutions?
  5. What were the legal requirements of a judgment with regard to its content and mode of delivery?Read More...

Relevant Provisions of the Law
Criminal Procedure Code
Section 168;
(1) The judgment in every trial in a criminal court in the exercise of its original jurisdiction shall be pronounced, or the substance of the judgment shall be explained, in open court either immediately after the termination of the trial or at some subsequent time, of which notice shall be given to the parties and their advocates, if any: Provided that the whole judgment shall be read out by the presiding judge or magistrate if he is requested so to do either by the prosecution or the defence.
(2) The accused person shall, if in custody, be brought before the court, or, if not in custody, be required by the court to attend, to hear judgment delivered, except where his personal attendance during the trial has been dispensed with and the sentence is one of a fine only or he is acquitted.
(3) No judgment delivered by a court shall be invalid by reason only of the absence of a party or his advocate on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their advocates, or any of them, the notice of the day and place.
(4) Nothing in this section shall limit in any way the provisions of section 382.

Section 169;
1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by or under the direction of the presiding officer of the court in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.
(2) In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law under which, the accused person is convicted, and the punishment to which he is sentenced.
(3) In the case of an acquittal, the judgment shall state the offence of which the accused person is acquitted, and shall direct that he be set at liberty.

Section 329C;
(1) If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender.

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.

Penal Code
Section 312;
Any representation, made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false or does not believe to be true, is a false pretence

Section 313;
Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanor and is liable to imprisonment for three years.

Evidence Act
Section 143;
No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.

Victim Protection Act No. 17 of 2014
Section 12;
(1) A victim of a criminal offence may make a victim impact statement to the court sentencing the person convicted of the offence, in accordance with section 329C cap.75 of the Criminal Procedure Code and that statement may be considered by the court in determining the sentence of the offender

Held:

  1. The charge sheet indicated that the offence occurred in the year 2014 at Mena Coffee Factory while the evidence tendered by the prosecution witnesses including the bank statements indicated that the appellant obtained the sum of money in the year 2013. However, that did not occasion any injustice to the appellant since the tender contract produced before the Trial Court showed that the contract was for the year 2013/2014. In any event, the discrepancy was one curable under section 382 of the Criminal Procedure Code. False pretence was defined under section 312 of the Penal Code as any representation, made by words, writing or conduct, of a matter of fact, either past of present, which representation was false in fact, and which the person making it knew to be false or did not believe to be true.
  2. A scrutiny of the evidence on record demonstrated that the prosecution proved that the appellant obtained the sum of Kshs. 600,000/- from the complainant. Further that the sum of money was transferred from the complainant’s bank account to an account held by a company, owned by the appellant. The payments were for the delivery of a supply of 206 bags of fertilizer. PW3, who was tasked with acknowledging receipt of supplies and signing the delivery notes, testified that the 206 bags of fertilizer were never supplied. The offence of obtaining by false pretence was proved by the prosecution against the appellant to the required standard.
  3. A look at the Trial Court’s judgment delivered showed that the Trial Court considered both the appellant’s defense and submissions in analyzing the evidence to arrive at its conclusion that the prosecution had proved the case against the appellant to the required standard. No particular number of witnesses was required for the proof of any fact in the absence of any provision of law to the contrary as provided under section 143 of the Evidence Act.
  4. The Court could not ascertain the value of the evidence which would have been tendered by the prosecution witnesses who were not availed or stated for a fact that they would have added to the evidence already on record, which, was sufficient to prove the charge against the appellant. Therefore, it had not been shown that the failure to call certain witnesses did not occasion an injustice to the appellant’s case. A prosecution assistant was defined under section 2 of the Office of the Director of Prosecutions Act (ODPP Act) to mean an officer in the National Police Service gazetted as a public prosecutor.
  5. The Constitution granted the Director of Public Prosecution (DPP) power to gazette a police officer with the relevant experience and expertise as a prosecution assistant to exercise prosecutorial powers on his behalf. Further, under the Constitution (repealed), police officers of the rank of inspector could be gazetted to prosecute matters on behalf of the state. The police officers who prosecuted the matter were of the rank of inspector. Therefore the argument that the charges were instituted by an incompetent institution was baseless and misguided.
  6. There were two limbs in section 168(1) of the Criminal Procedure Code;
    1. the judgment in every trial in a criminal court in the exercise of its original jurisdiction shall be pronounced; and
    2. the substance of the charge shall be explained.

    The use of the word “or” in section 168(1) made the two limbs disjunctive and expressed a choice between the two which were mutually exclusive possibilities.

  7. The Trial Court judgment was delivered in open court on May 27, 2016 in the presence of the advocate for the appellant. The judgment complied with section 169 of the Criminal Procedure Code as it contained all the key requirements namely:-
    1. points of determination;
    2. the decision thereon;
    3. reasons for the decision; and
    4. it was dated and signed.

    The judgment was compliant with the legal requirements of its content and mode of delivery.

  8. Section 329C(1) of the Criminal Procedure Code allowed a court, if it considered it appropriate to do so, to receive and consider a victim impact statement at any time after it convicted and before it sentenced an offender. Section 12(1) of the Victim Protection Act provided that a victim of a criminal offence could make a victim impact statement to the court sentencing the person convicted of the offence, in accordance with section 329C of the Criminal Procedure Code and that statement should be considered by the court in determining the sentence of the offender. A reading of section 329 of the Criminal Procedure Code and the provisions of the Victim Protection Act demonstrated that a victim impact statement was not mandatory but the court could receive and consider it if it considered it appropriate. Further that it was applicable where an offence had been committed and the impact was an economic one as in the instant case. The Trial Court properly convicted the appellant based on sound evidence.

Appeal dismissed, conviction and sentence imposed upon the appellant confirmed.

CONSTITUTIONAL LAW There is no automatic right of appeal to the Supreme Court in election matters from the Court of appeal

Lenny Maxwell Kivuti v Independent Electoral and Boundaries Commission & 3 others
Petition 35 of 2018
Supreme Court of Kenya
D Maraga CJ and P; M K Ibrahim, J B Ojwang, S C Wanjala, & I Lenaola, SCJJ
February 30, 2019
Reported by Kadzo Jali and Ian Kiptoo

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Constitutional Law-jurisdiction of the Supreme Court-appellate jurisdiction of the Supreme Court-matters involving constitutional interpretation and application-claim that elections matters from the court of appeal involved application and interpretation of the Constitution-whether there was an automatic right of appeal to the Supreme Court in election matters from the Court of appeal-Constitution of Kenya, 2010, articles 81, 83, and 164(3)(a)
Electoral Law-recount and scrutiny-recount and scrutiny reports-scope of recount/scrutiny report-purpose of a scrutiny report-whether a court could rely on the hand written notes of a Court’s Registrar, which did not form part of the Scrutiny and Recount Report, in determining an election petition

Brief facts:
The matter before the Court was an appeal from the judgment and decree of the Court of Appeal which had set aside the Judgement of the High court that had nullified the election of the 3rd respondent as the Governor for Embu County.
The petitioner contended that the Court of appeal misinterpreted the provisions of section 83 of the Elections Act; violated the petitioner’s rights under articles 38, 81, 86 and 87 of the Constitution of Kenya, 2010 (Constitution) by failing to consider material evidence relied on by the election Court; misinterpreted and misapplied the provisions of articles 38, 81, 86, 87 and 180 of the Constitution by failing to consider the Registrar’s Report; exceeded the scope of its jurisdiction in election petition pursuant to article 87(1) of the Constitution and section 85A of the Elections Act.
On the other hand, the 3rd respondent moved the Court through a notice of motion for orders to strike out the appeal for lack of jurisdiction under article 163 (4) (a) of the Constitution, sections 15 (1) (2) and section 17 of the Supreme Court Act on the basis that the appeal did not involve the interpretation or application of the Constitution.

Issues:

  1. Whether there was an automatic right of appeal to the Supreme Court in election matters from the Court of appeal.
  2. Whether a court could rely on the hand written notes of a Court’s Registrar, which did not form part of the Scrutiny and Recount Report, in determining an election petition.
  3. Whether the elections for the seat of Governor of Embu were conducted in compliance with the Constitution and Electoral Laws. Read More..

Relevant Provisions of the Law
Elections Act
Section 83
“No election shall be declared void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the constitution and in that written law or that non-compliance did not affect the result of the election.”

Held:

  1. Under article 163(4)(a) of the Constitution an appeal from the Court of Appeal to the Supreme Court would lie as of right in matters involving constitutional interpretation and application. The Court’s repeated authoritative pronouncements in that regard and the principles from the precedents would suffice, as a guide, to litigants who sought to invoke the Supreme Court’s appellate jurisdiction. Those principles were applicable in equal measure to electoral disputes that had escalated to the Court of Appeal. However, it appeared that the Court may have established some kind of exception, regarding election petitions, in so far as the scope of article 163 (4) (a) was concerned in the Munya, Outa and Kidero decisions.
  2. Those pronouncements by the Supreme Court were not only jurisprudentially sound, but conceptually logical as they aptly captured the architecture of the 2010 Constitution. However, the Munya, Outa and Kidero decisions should not be taken to mean, that somehow, they gave a carte blanche for admitting appeals, from the Court of Appeal to the Supreme Court in election petitions.
  3. The Munya case was the first one, in which both the High Court and Court of Appeal had to grapple with the meaning, scope, and applicability of articles 81 and 86 of the Constitution as they tested the integrity of that particular election. It was concluded, that the issue of the applicability of articles 81 and 86 of the Constitution, in so far as determining the accuracy and verifiability of that particular election was alive, throughout the proceedings in the two Superior Courts. As the parties had taken opposite views on how the two courts had navigated that fundamental question, the Supreme Court decided, that it had to weigh it under article 163 (4) (a) of the Constitution.
  4. The petition of appeal did not meet the threshold to be admitted under article 163(4) (a) of the Constitution, examination of the proceedings at the trial Court and Court of Appeal had not established that the determination of the petition turned on the interpretation and application of the Constitution. What the petitioner was doing was to introduce constitutional questions in his memorandum of appeal that none of the two Superior Courts dealt with in arriving at their decisions. The Court was being invited to interpret provisions of the Constitution in a vacuum, a task for which the Court could hardly have been established. There had to be a real controversy relating to how the Appellate Court interpreted and applied the Constitution to trigger the Supreme Court’s jurisdiction under article 163 (4).
  5. The Court assumed jurisdiction over the petition because it involved the application of the verifiability test under article 86 of the Constitution, in regard to the Recount/ Scrutiny Report and therefore fell within the ambit of article 163(4)(a) of the Constitution.
  6. An order for scrutiny or re-count could be made following a request by any of the parties, at any stage, after the filing of a petition, before the determination of the petition. However, the party applying for an order of scrutiny, had to establish a basis for such a request by way of pleadings, affidavits, or evidence adduced during the trial. The trial Court, in issuing an order for scrutiny or recount should ideally confine itself to the specifics of the application.
  7. A trial Court could issue an order for scrutiny or recount suo motu, if it considered that such an order, could aid it in arriving at a just and fair determination of the petition. However, that discretion had to be exercised sparingly, and should be informed by the pleadings or evidence. The trial Court should record the reasons for such an order, always bearing in mind that, at the end of the day, the case belonged to the petitioner.
  8. A scrutiny or recount exercise was to be triggered by an application by any of the parties to the dispute. If made suo motu, it should still be informed by the pleadings and evidence adduced during the hearing. The scrutiny or recount exercise was not meant to be a fishing expedition to aid the petitioner. It was intended to aid the Court in verifying and establishing the validity of the vote. It followed that the trial Court ought to confine itself to the claims that necessitated the scrutiny or recount in the first place. Were the Court to have the liberty of making conclusions from the scrutiny report, that were not based on the pleadings, that would open a Pandora’s box whereby courts of law, would be turned into automatic sounding boards for election losers.
  9. Parties were entitled to make submissions on the content of the scrutiny or recount report. The submissions were intended to solidify or controvert the claims on which the scrutiny or recount exercise was based. The submissions were not meant to introduce new evidence that went beyond the scope of the petition. The trial Court should consider those submissions just as any others made during the hearing.
  10. In addition, a scrutiny or recount report was that which was prepared by the Registrar, signed by all the parties, and formally tabled before Court. The report should confine itself to the claims on which the order for scrutiny was based, or the specific directions given by the trial Court, when issuing the order for scrutiny suo motu. Any document that was not so prepared and signed ought not to be considered as part of the Scrutiny Report. The Scrutiny Report formed part of the proceedings of the Court.
  11. Based on the law, purpose and process of scrutiny, the Deputy Registrar’s hand written notes were not part of what was formally tabled before the Court. The contents of the hand written notes clearly introduced matters that could not have been responded to by the respondents as they were not part of the pleadings. It was also obvious that the hand written notes were not part of the Scrutiny and Recount Report properly so understood.
  12. What was before the Court of Appeal, was not necessarily the veracity of the contents of the handwritten notes by the Deputy Registrar, but whether the said notes could be considered as forming part of the Scrutiny Report. Such a question was clearly not one of fact but of law. Secondly, the Court of Appeal had to interrogate the contents of the handwritten notes to determine their admissibility.
  13. As parties were bound by their pleadings, it was quite in order for the Appellate Court to determine whether, the contents of the hand written notes derived from the pleadings. Such an inquiry was not meant to question the Trial Court’s findings of fact, but to determine whether the evidence on which it relied was admissible or not. That question was a matter of law and properly within the Appellate Court’s jurisdiction. Therefore, the Court of Appeal did not act in excess of its jurisdiction.
  14. Under section 83 of the Elections Act, non-compliance of any written election law did not warrant an election to be nullified as long as it did not affect the result of the election. While there was a variance in the total tally of the votes, all three figures signaled the 3rd respondent as the winner and as such, the issue of tallying could not suffice to vitiate the election.

Appeal dismissed
Orders:

  1. Declaration of the result of the election by the Independent Electoral and Boundaries Commission in respect of the Governor for Embu County was upheld.
  2. At the High Court, costs would be borne as follows: the Petitioner would bear his own costs and those of the 3rd Respondent. The 1st Respondent [IEBC] would bear its own costs. At the Court of Appeal and the Supreme Court, Each Party would bear its own costs.
APPEALS Standard of proof and test to justify a conviction of the offence of causing death by dangerous driving

Paul Thiga Ngamenya v Republic
Criminal Appeal 23 of 2017
High Court at Machakos
G V Odunga, J
October 3, 2018
Reported by Ian Kiptoo

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Appeals-first appellate courts-analysis and re-evaluation of evidence-evidence adduced before a trial court-whether there was a set format that a first-appellate courts ought to conform in analyzing and re-evaluating evidence adduced before a trial court
Criminal Law-offences-causing death by dangerous driving-standard of proof-objective test-what was the applicable test in determining the standard of proof whether an accused person was liable for dangerous driving under section 46 of the Traffic Act-Traffic Act, section 46
Evidence Law-witnesses-prosecution witnesses-claim that the prosecution did not call two witnesses which amounted to suppression of evidence-whether failure by prosecution to call all witnesses in a transaction amounted to suppression of evidence- Evidence Act, section 143
Criminal Law-sentencing-concurrent and consecutive sentences-where the offences occurred during the same act-objectives of sentencing-whether the trial Court erred by imposing a sentence to run consecutively for the two counts of the offence of causing death through dangerous driving-Criminal Procedure Code, section 7 and 14; Judiciary of Kenya Sentencing Policy Guidelines, page 15 para 4.1

Brief facts:
The appellant was charged in the Principal Magistrate’s Court with two counts of the offence of causing death by dangerous driving contrary to section 46 of the Traffic Act. Cap 403 Laws of Kenya. The appellant was found guilty and fined Kshs 200,000.00 on each count and in default the appellant was sentenced to serve one (1) year imprisonment with the sentences running consecutively.
Aggrieved by the said decision the appellant appealed to the Court against the said conviction and sentence claiming that the Trial Court relied on the contradictory evidence with respect to the evidence of over-speeding and that the sentence was manifestly excessive.

Issues:

  1. Whether there was a set format that first-appellate courts ought to conform in analyzing and re-evaluating evidence adduced before a trial court.
  2. What was the applicable test and standard of proof in determining liability for dangerous driving under section 46 of the Traffic Act?
  3. Whether failure by a prosecution to call all witnesses in a transaction amounted to suppression of evidence.
  4. Whether the trial Court erred by imposing a sentence to run consecutively for the two counts of the offence of causing death through dangerous driving.Read More..

Relevant Provisions of the Law
Traffic Act Cap 403 Laws of Kenya
Section 46
Any person who causes the death of another by driving a motor vehicle on a road recklessly or at a speed or in a manner which is dangerous to the public, or by leaving any vehicle on a road in such a position or manner or in such a condition as to be dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road, shall be guilty of an offence whether or not the requirements of section 50 have been satisfied as regards that offence and liable to imprisonment for a term not exceeding ten years and the court shall exercise the power conferred by Part VIII of cancelling any driving licence or provisional driving licence held by the offender and declaring the offender disqualified for holding or obtaining a driving licence for a period of three years starting from the date of conviction or the end of any prison sentence imposed under this section, whichever is the later.

Evidence Act
Section 143
No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.

Held:

  1. Even though the State conceded the appeal, it did not follow that in those circumstances the Court had to allow the appeal since the Court had the duty to put the evidence to a fresh scrutiny and arrive at its own determination.
  2. Being a first appeal, the Court was, as a matter of law, enjoined to analyse and re-evaluate afresh all the evidence adduced before the lower Court and to draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses. However, it had to be stated that there was no set format to which a re-evaluation of evidence by the first Appellate Court should conform.
  3. The extent and manner in which evaluation could be done depended on the circumstances of each case and the style used by the first Appellate Court. First appellate courts were expected to scruitinise and make an assessment of the evidence but that did not mean that the Court of Appeal should write a judgment similar to that of the trial. Therefore, while the length of the analysis could be indicative of a comprehensive evaluation of evidence, nevertheless the test of adequacy remained a question of substance.
  4. Section 46 of the traffic Act and provisions couched in similar terms had been the subject of judicial pronouncements in Kenya and in other jurisdictions where it was stated that the standard of proof and the test to justify a conviction of the offence of causing death by dangerous driving had to not only be a situation which, viewed objectively, was dangerous, but there had to also be some fault on the part of the driver causing that situation. The question therefore was not just whether or not there was a dangerous situation, but whether the appellant also played a part in causing the situation to be dangerous.
  5. The test to the applied when considering whether or not a driver was said to have been driving in a dangerous manner was that, if in fact a man adopted a manner of driving which the jury thought was dangerous to other road users in all the circumstances, then on the issue of guilt it mattered not whether he was deliberately reckless, careless, momentarily inattentive or even doing his incompetent best.
  6. Section 46 of Kenya’s Traffic Act was similarly worded like the English Act that stated that “any person who caused the death of another by driving a motor vehicle on a road recklessly or at a speed or in a manner which was dangerous to the public ….” Section 46 of the Traffic Act was absolute in terms of liability. It did not matter that the driver thought that he was driving as best as he could in the circumstances. If the court was of the opinion that he was driving dangerously, then he would be found guilty of the offence of dangerous driving.
  7. There was evidence from the passengers who were in the matatu that the said vehicle was being driven at a high speed. Even though the exact speed was not disclosed, there was evidence that arising from the impact the matatu was extensively damaged. That evidence did not match with the appellant’s contention that the vehicle was moving slowly and that he was going uphill at a speed of between 40-45 km/h.
  8. It was not uncommon for vehicles being driven at reasonably slow speed to be able to be controlled even where there was a tyre burst. Even discounting the evidence of PW1 and PW9 (wrongly named PW8), there was evidence from PW2 and PW3 that the appellant was overlapping on the left side off the road when he suddenly came upon the stationary lorry and due to the speed its attempt to abruptly come back to the road was thwarted by a lorry that was behind it forcing it back and to hit the stationary lorry.
  9. The act of the appellant in overlapping and going off the road onto the path of the cyclists thus “overtaking” vehicles on the left side was a dangerous manoeuvre itself hence the driver’s degree of negligence or care was irrelevant. It was dangerous because he ought to have known that even if there was no obstacle in the form of a stationary vehicle there was a possibility of colliding with a cyclist or a pedestrian.
  10. By driving at a high speed, where he was not supposed to drive in the first place, amounted to falling below the care or skill of a competent and experienced driver in circumstances where the other drivers exercised patience and were bidding their time waiting for the traffic flow to open up. It did not matter that the appellant felt that the fault was slight, or that it was a momentary lapse and in the “normal matatu mania” no danger would have arisen from it.
  11. Assuming that the lorry was on the road, the accident would have been substantially caused by the appellant and the prosecution did not have to prove that the dangerous driving was the sole cause of death if it was the substantial cause of it. If the lorry was on the road and the appellant’s vehicle had a tyre burst, and there was no evidence of that, there was no evidence that the appellant attempted to veer off the road to avoid colliding with the lorry.
  12. Under section143 of the Evidence Act, there was no particular number of witnesses who were required for proof of any fact unless the law so required. The prosecution was not duty bound to call all persons involved in the transaction and his failure to call them was not necessarily fatal unless the evidence adduced by him was barely sufficient to sustain the charge. However where the prosecution in the course of its investigations unearthed evidence favourable to the defence, it was under obligation to disclose the same and ought not to suppress the same in order to get a conviction.
  13. The terrain under the current prosecutorial regime had changed. The discretion given to the DPP was not absolute but had to be exercised within certain laid down standards provided under the Constitution and the Office of the Director of Public Prosecutions Act. Some of those principles were the interests of the administration of justice, impartiality, promotion of public confidence in the integrity of the Office, the need to discharge the functions of the Office on behalf of the people of Kenya and the need to serve the cause of justice, prevent abuse of the legal process and public interest. The office of the Director of Public Prosecution was also required to promote constitutionalism. Some of the principles of constitutionalism were to be found in article 10 of the Constitution and those included transparency and accountability.
  14. There was no evidence that the statements of the turn boys were taken and that they were favourable to the appellant. As regards the photographs, it had not been contended that the same were in fact favourable to the appellant’s case. The appellant’s case seemed to be that that evidence “might” have been favourable to him. The rough sketch plan, the fair sketch and the legends were produced. It was not mandatory in such kind of matters that photographs be taken and produced if their purpose could well be served by the said plans. In such circumstances, it could not be stated with certainty that the prosecution suppressed the evidence favourable to the appellant.
  15. What was alleged as amounting to inconsistencies, contradictions and discrepancies were the fact that PW1 and PW9 stated that the appellant was over-speeding while they were not eye witnesses to the accident. Whereas there were minor discrepancies in the evidence of the witnesses, such minor discrepancies were common. Whether or not discrepancies in the evidence of witnesses had the effect of discrediting that evidence would depend upon the nature of the discrepancies that was to say, whether or not the discrepancies were trifling. The contradictions pointed out were not so material as to vitiate the conviction. Therefore, the conviction of the appellant was grounded on sound evidence and should not be disturbed.
  16. The offence of causing death by dangerous driving was not an ordinary type of crime. While it could not be given an aura of protection by putting it in a glass case of its own, the people who committed the offence did not have a propensity for it, neither was it a type of crime committed for gain, revenge, lust or to emulate other criminals. In a case of causing death by dangerous driving, a custodial sentence did not necessarily serve the interests of justice as well as the interest of the public. There were of course cases where a custodial sentence was merited, for example, when there was a compelling feature such as an element of intoxication or recklessness.
  17. Section 14 of the Criminal Procedure Code provided for circumstances in which a court could direct sentences to run concurrently or consecutively whereas section 7 provided that surbodinate courts of the first class could pass any sentence authorized by law for any offence triable by that court. As a general principle, the practice was that if an accused person committed a series of offences at the same time in a single act/transaction a concurrent sentence would be given. However, if separate and distinct offences were committed in different criminal transactions, even though the counts could be in one charge sheet and one trial, it was not illegal to mete out a consecutive term of imprisonment.
  18. The series of offences which the appellant faced were committed at the same time in a single act/transaction. Therefore the Trial Court ought to have imposed a concurrent sentence. With respect to the cancellation of the appellant’s driving licence, it was clear that the accident did not arise through momentary inattention or misjudgement but was a result of a selfish disregard for the safety of other road users or his passengers or with a degree of recklessness.
  19. The Court considered the fact there had been a sharp rise in the prevalence of road traffic accidents in Kenya most of which were caused by recklessness on the part of the drivers. Overlapping had become the order of the day for matatus in Kenya. One way of curbing such reckless loss of lives and limbs by people who were only interested in financial gain was to impose a sentence whose objective was geared towards retribution, deterrence and denunciation.

Appeal partly allowed
The consecutive sentence imposed was substituted with a concurrent sentence in so far as the period to be served was concerned, the fine imposed and the disqualification would however remain undisturbed; Right of appeal 14 days

CONSTITUTIONAL LAW County governments cannot levy for single business permit from the members of the medical profession except for pharmacists

Peter Ndungu Mbugua & 39 others v County Assembly of Nyandarua & 2 others [2018] eKLR
Judicial Review Application 8 of 2017
High Court at Nyahururu
R V P, Wendoh, J
October 16, 2018
Reported by Chelimo Eunice

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Constitutional law – levels of government – county government – functions of county governments – function of county governments to impose tax-when could county government levy taxes-single business permit –a claim that county governments would not levy for single business permit from members of the medical profession who pay licensing fees to their respective regulatory bodies-whether county governments would levy for single business permit from members of the medical profession– whether there was a difference between pharmacists selling pharmaceutical products and the other members of the medical profession who offered services only-Constitution of Kenya, 2010 articles 185, 209(3) and (4).
Civil practice and procedure – res judicata –where it was claimed that the question whether pharmacists were liable to pay trade licenses, aside from paying licensing fees to their respective regulatory bodies was re judicata-whether the matters raised in the instant petition were res judicata for addressing the issues raised in the Kenya Pharmaceutical Association & another v Nairobi City County and the 46 other County Governments & another [2017] eKLR (Petition No. 97 of 2016).
Words and phrases – definition of the word profession – A vocation requiring advanced education and training especially one of the three traditional learned professions – law, medicine and the ministry - Black’s Law Dictionary, 10th Edition.
Words and phrases – definition of the word profession – paid occupation, especially one involving training and a formal qualification - Concise Oxford English Dictionary, 12th Edition.

Brief facts:
The applicants, who were members of the medical profession offering health care services, including nurses, clinical officers, pharmacists, doctors, laboratory technicians sought to quash the respondents’ decision purporting to levy for single business permit from the members of the medical profession within Nyandarua County. They contended that they were licensed by their professional bodies to offer services, that the said bodies regulate their operations, that they pay licensing fees to their respective regulatory bodies, that the monies were collected on behalf of the National Government; that the action of County Government of Nyandarua purporting to levy single business permits from them was unconstitutional and amounted to double taxation.
Respondents opposed the application, arguing among others, that it was an abuse of the court process, that courts had already made decisions to the effect that professions like pharmacy ought to pay single business permit, and that it did not amount to double taxation; that in so far as the applicants purported to include pharmacists in the application, the issue had been determined.

Issues:

  1. Whether the application was properly before the Court by way of a judicial review.
  2. Whether the application was res judicata as regards pharmacists whose case was determined in Kenya Pharmaceutical Association & another v Nairobi City County and the 46 other County Governments & another [2017] eKLR (Petition 97 of 2016).
  3. Whether county governments would levy for a single business permit from members of the medical professional bodies except for pharmacists. Read More..

Held:

  1. Judicial review orders were meant to be issued against public bodies or public officers when they acted beyond their powers or acted without powers (ultra vires) or if they acted illegally. They lay where rules of natural justice had been flouted. The applicants alleged that the respondents acted ultra vires their powers. The applicants’ application could not fail merely because it was by way of judicial review. The applicants were properly before the Court.
  2. Article 185 of the Constitution bestowed powers on the county assembly to enact laws and such laws included the levying of taxes and charges. Article 209(3)(c) of the Constitution on the other hand empowered counties to impose any other tax that was authorized to impose by an Act of parliament. At article 209(4) of the Constitution, both the national and county government would impose charges for the services they provided. Indeed, article 260 of the Constitution defined legislation to include an Act of Parliament or a law made under authority conferred by an Act of Parliament; or a law made by an assembly of a county government. It followed therefore that the laws made by the County Government of Nyandarua were legislation. That included section 4 of the Finance Act that was under challenge.
  3. Pharmacy was a profession, but to the extent that it also involved selling of pharmaceutical products, it was a trade as opposed to a profession such as law or architecture which rendered services only.As regards pharmacists, therefore, the issue of payment of trade licenses was res judicata and they should not have been part of the application.
  4. Since 2010, there were two layers of government, national and county government. The national government had its own mandates and levies taxes on some functions. However, some taxes were levied by the county government in areas where the services fell within the county and where there were no similar taxes levied by the national government. Once the national government levied a particular tax, the same could not be levied by the county government. In the instant case, the medical doctors, nurses, clinical officers already paid their regulatory bodies for their yearly certificate in order to practice their professions. Pharmacy profession was different from the other professions like law or architecture or medicine.
  5. The applicants being professionals, were regulated by the relevant professional bodies. Their functions were regulated by the national government where they paid the said bodies in order to be issued with an annual practicing certificates confirming that they were qualified for the year in question in order to carry out their activities for the year.
  6. In the fourth schedule to the Constitution, among the services devolved to the county government was trade development and regulation which included trade licensing but excluding regulation of professionals. The county government was therefore prohibited from issuing regulatory licenses.
  7. By demanding single business permit from the applicants (save for pharmacists), the same was oppressive and the respondents were acting outside their powers.

Orders;

  1. An order of certiorari to call into the Court and quash the decision of the respondents to levy single business permit from the members of the medical profession within Nyandarua County except for pharmacists was issued.
  2. An order of prohibition to bar the respondents from implementing their decision to levy single business permit from members of medical professional within Nyandarua County except for pharmacists was issued.
  3. Costs were to be borne by the respondents.

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