Weekly Newsletter 016/2019

Weekly Newsletter 016/2019



Kenya Law

Weekly Newsletter


Section 9(1)(e) of the Victim Protection Act, which requires accused persons to disclose and supply the victims with the evidence they intended to rely on, declared unconstitutional.
Joseph Nduvi Mbuvi v Republic
Criminal Revision 4 of 2019
High Court at Machakos
G V Odunga, J
February 26, 2019
Reported by Mathenge Mukundi & Beryl Ikamari
Download the Decision
 
 
Constitutional Law-fundamental rights and freedoms-right to a fair trial-rights of an accused person-whether the prosecution could claim entitlement to access the evidence that the accused intended to rely on during the defence hearing-Constitution of Kenya 2010, article 50(2)(j).
Constitutional Law-fundamental rights and freedoms-fair hearing-rights of an accused person-whether the accused person had a reciprocal duty that required the disclosure and supply of the evidence that he intended to rely on during the defence hearing to the prosecution- Constitution of Kenya 2010, article 50(2)(j).
Jurisdiction-jurisdiction of the High Court-the revisionary jurisdiction of the High Court-invocation and purpose of the revisionary jurisdiction of the High Court-whether the revisionary jurisdiction of the High Court could only be invoked with respect to final adjudications in criminal proceedings and not those relating to interlocutory applications-Criminal Procedure Code (Cap 75), sections 362, 364 & 367.
Constitutional Law-constitutionality of a statutory provision-constitutionality of section 9(1)(e) of the Victim Protection Act-constitutionality of the right to be informed in advance about the evidence of the defence and prosecution and to access it as part of the rights of the victim-where the Constitution did not provide for such a right-whether the statutory provision violated the accused's right to be presumed innocent until proven guilty-Constitution of Kenya 2010, article 50(2)(j); Victim Protection Act, No 17 of 2014, section 9(1)(e).
 
Brief Facts:
The application for revision arose from the Senior Resident Magistrate Court ruling, in which the Court placed the applicant on his defence and directed the applicant to supply the prosecution with the witness statements and any other evidence the defence intended to rely on at the defence hearing. The Court went further and made orders geared towards compelling the defence witnesses to record their statements and furnish the prosecution therewith within 14 days.
 
Issues:
  1. Whether section 9(1)(e) of the Victim Protection Act was unconstitutional in that it required an accused person to provide the evidence he intended to rely on in advance to the victim, and it therefore violated the accused’s right to be presumed innocent until proven guilty.
  2. Whether an accused person was obliged to disclose its statements and documentary evidence to the prosecution and the victim.
  3. Whether the prosecution had the right to be informed in advance of the evidence the accused intended to rely on, and to have reasonable access to that evidence.
  4. Whether the revisionary jurisdiction of the High Court could be invoked with respect to a decision on an interlocutory application while criminal proceedings were still pending at the Lower Court.

Relevant provisions of the law
Constitution of Kenya, 2010
Article 50(2)(j);

(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
 
Victim Protection Act, No 17 of 2014
Section 9(1)(e);

 (1) A victim has a right to-

...
be informed in advance of the evidence the prosecution and defence intends to rely on, and to have reasonable access to that evidence;

Held:

  1. The object of the revisionary jurisdiction of the High Court was to enable the High Court, in appropriate cases, whether during the pendency of the proceedings in the Subordinate Court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if it was still ongoing, should proceed.
  2. Section 362 of the Criminal Procedure Code provided that the High Court's revisionary jurisdiction could be exercised with respect to any criminal proceedings. Any criminal proceedings included interlocutory proceedings and the High Court's jurisdiction could be exercised with respect to a final adjudication, a decision on an interlocutory application and also to determine the regularity of any proceedings of any such subordinate court.
  3. Section 362 as read together with section 364 of the Criminal Procedure Code stated that the High Court had power to call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court. Therefore, it was clear that the High Court had revisionary jurisdiction to hear the application.
  4. The revisionary jurisdiction should not be invoked so as to micro-manage the Lower Courts in the conduct and management of their proceedings for the simple reason that if every ruling of the Lower Court were to be subjected to the revisionary jurisdiction of the Court, floodgates would be opened and the Court would be inundated with applications thus making it practically impossible for the Lower Courts to proceed with any case to its logical conclusion. Revisionary jurisdiction should only be invoked where there were glaring acts or omissions but should not be a substitute for an appeal. Parties should not argue an appeal under the guise of a revision.
  5. Article 50(2) of the Constitution which provided for an accused person’s right to be informed in advance of the evidence the prosecution intended to rely on, and to have reasonable access to that evidence. That right could only be exercised by the accused person.
  6. The prosecution could not rely on article 50(2) of the Constitution as a basis for seeking to be informed in advance of the evidence the accused intended to rely on and to have access to it.  That right could only be exercised against those who had unlimited capacity and resources to deprive individual Kenyans of their life, liberty and security of the person. It was the state that had the capacity to deprive individuals of their rights guaranteed under the Constitution. Therefore, the Court had to rigorously enforce, against the state, the fundamental rights and freedoms of the individual guaranteed by the Constitution.
  7. There should be no question of reciprocal rights, or a level playing or any such theory as between the accused person and the state. No statute should give the state such privileges, and the Constitution, did not give the prosecution such powers. Additionally, those rights should not be given through the inherent power of the Court.
  8. Whereas article 50(1) of the Constitution provided for fair hearing generally, that right could not be stretched to confer upon the prosecution the right to be informed in advance of the evidence the accused intended to rely on, and to have reasonable access to that evidence or reciprocity of statements.
  9. Article 50(9) of the Constitution empowered the Parliament to enact legislation providing for the protection, rights and welfare of the victims of offences. On the other hand, section 9(1)(e) of the Victim Protection Act provided that a victim had a right to be informed in advance of the evidence the prosecution and defence intended to rely on, and to have reasonable access to that evidence. The rights of victims should not be extended to encompass the right to be informed in advance of the evidence that the accused intended to rely on and to access it.
  10. There was a presumption of innocence that the Constitution bestowed upon an accused person, there could be no case that an accused person would be expected to disclose in advance. To the extent therefore that section 9(1)(e) of the Victim Protection Act expected that an accused would in advance inform the victim of the evidence he intended to rely on, and to give reasonable access to that evidence, the provision clearly contravened both the spirit and the letter of the Constitution and to that extent it was null and void.
Application allowed. The orders issued by the Trial Court were declared illegal and improper and set aside.
Kenya Law
Case Updates Issue 016/2019
Case Summaries

JURISDICTION Circumstances in which a court can grant final orders at an interlocutory stage

Oksana Investment Supplies Ltd v Alice Wanjiru Wamwea [2019] eKLR
Civil Case E121 of 2018
High Court at Nairobi
Mary Kasango, J
March 5, 2019
Reported By Flora Weru and Kakai Toili

Download the Decision

Jurisdiction-jurisdiction of the Environment and Land court- jurisdiction involving disputes in land-where a party sought vacant possession of land-whether the Environment and Land Court had jurisdiction to determine a dispute where a party sought vacant possession of land-Environment and Land Court Act section 13
Civil Practice and Procedure-orders-final orders-granting of final orders-granting of final orders at an interlocutory stage-whether final orders could be issued at the interlocutory stage of a suit- circumstances in which a court could grant final orders at an interlocutory stage

Brief facts:
The plaintiff purchased the suit property through a public auction. Prior to that auction the property was owned by the defendant. The plaintiff obtained a loan, from NIC Bank, to purchase the property. It was averred that the defendant having knowledge of that purchase had failed to vacate the property and as a consequence the plaintiff was unable to service the loan of NIC Bank. It was on that ground the plaintiff prayed the Defendant be evicted from the property
The plaintiff instituted the suit against the defendant praying for vacant possession of the suit property and a prayer for rent arrears, for unspecified amount, from the date of auction of the property to date and interest at bank rate. The plaint was simultaneously filed together with a notice of motion dated October 17, 2018. In the notice of motion, the plaintiff sought to restrain the defendant from receiving the rent of the property and restrain the defendant from dealing with the property. It also sought that the rent be paid into the plaintiff’s loan account. It further sought that the Court issues an order of vacant possession of the property.

Issues:

  1. What circumstances can a court grant final orders at an interlocutory stage?
  2. Whether the Environment and Land Court had jurisdiction to determine a dispute seeking vacant possession of land.
  3. Whether final orders can be issued at an interlocutory stage of a suit.Read More..

Relevant Provisions of the Law
Civil Procedure Act CAP 21
Section 6;
No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
Explanation.—the pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court

Environment and Land Court
Section 13 (2);
In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court shall have power to hear and determine disputes—

(a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
(b) relating to compulsory acquisition of land;
(c) relating to land administration and management;
(d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
(e) any other dispute relating to environment and land.

Held :

  1. The dispute before the Court was one seeking vacant possession of the suit property. The plaintiff was the registered owner of the property, albeit the property was charged to the NIC Bank. Therefore the dispute was not one that fell within the ambit of section 13 of the Environment and Land Court Act.
  2. A close consideration of the prayers sought in the plaint and the prayers sought in the notice of motion dated October 17, 2018 revealed a remarkable similarity. The plaintiff, by its notice of motion dated October 17, 2018 sought for final orders as sought in the plaint.
  3. The Court should not grant interim relief which amounted to final relief and in exceptional circumstances where the Court was satisfied that ultimately the petitioner was bound to succeed and fact-situation warranted granting such a relief, the Court could grant the relief but it had to record reasons for passing such an order to make it clear as what were the special circumstances for which such a relief was being granted to a party. An order which resulted in granting of a major relief claimed in the suit ought not to be granted at an interlocutory stage.
  4. The plaintiff approached the Court, with the suit and the notice of motion, nine months after it purchased the property. There was nothing that would justify the issuance of final orders at interlocutory stage in view of that delay. The plaintiff filed a suit seeking eviction of the defendant and rental income and could not be entitled to seek the very same orders at interlocutory stage unless the plaintiff invoked the rules of procedure which entitled a party to enter of judgment. There could not be the application of section 99 of the Land Act; nor article 40 of the Constitution; and neither the application of section 26 of the Land Registration Act. Those provisions could be applicable at the trial.
  5. The argument that the instant suit was barred by virtue of Section 6 of the Civil Procedure Act Cap 21 could not be considered merely through evidence from the Bar. The Court needed to be moved in that regard.

Application dismissed
Orders

  1. The notice of motion dated October 17, 2018 was dismissed with costs to the defendant.
  2. The advocates representing the parties to within 30 days from the date of the judgment open a joint account into which the tenants at property L.R. 209/11395 (I.R. 53103) situated in Jonsaga area, Huruma, Nairobi County would deposit their rent until further orders of the Court.
  3. By the determination of the notice of motion dated October 17, 2018 it followed that the applications by notice of motion dated November 16, 2018 and November 28, 2018 were spent
APPEALS For an application of extension of time to be granted, the delay should be explained to the satisfaction of the Court.

Mombasa County Government v Kenya Ferry Services & 2 Others
Application 29 of 2018
Supreme Court of Kenya at Nairobi
M K Ibrahim, J B Ojwang, S C Wanjala, Njoki Ndungu & I Lenaola, SCJJ
February 25, 2019
Reported by Mathenge Mukundi

Download the Decision

Appeals -time within which to file a Supreme Court appeal-extension of time for the filing of an appeal-considerations of the Supreme Court in determining whether to extend time for filing an appeal-where it was alleged that the delay in filing an appeal was caused by delays in obtaining typed proceedings from the Court of Appeal and a change of advocates-whether the Supreme Court would extend the time allowed for the filing of the appeal-Supreme Court Act, No 7 of 2011, sections 21(2) & 24(1); Supreme Court Rules, 2012, rules 33(6).

Brief facts:
The genesis of the application was a disagreement between the County Government of Mombasa and the National Government as to who should control the revenue generated from the collections paid by the users of the ferry services. The applicant through their agents, allegedly invaded the 1st respondent’s facilities, forcefully took over the same, and started collecting revenue from the users. That prompted the 1st respondent to file a constitutional petitionin the High Court at Mombasa.
The petition was allowed in favour of the 1st respondent. The High Court declared that the 1st respondent’s right to the protection of its property was breached by the applicant and that the applicant’s actions to take over the ancillary activities, powers, duties, and obligations of the 1st respondent were unlawful.
Aggrieved by the decision of the High Court, the applicant filed an appeal at the Court of Appeal, the Appellate Court upheld the decision of the High Court and dismissed the appeal with costs to the 1st respondent. The applicant sought to file an appeal at the Supreme Court but there was a delay in filing the appeal occasioned by delays in obtaining typed proceedings from the Court of Appeal. As a result, the applicant approached the Supreme Court seeking extension of time within which to file an appeal before the Court.

Issues:

  1. Whether the Supreme Court should extend time for the applicant to file its appeal, where the delay was alleged to be caused by obtaining the typed recordings of the Court of Appeal.
  2. What were the considerations of the Supreme Court when determining an application for extension of time within which to file an appeal? Read More..

Held :

  1. The Supreme Court’s discretion to extend time was indeed unfettered. It was incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there were any extenuating circumstances that could enable the Court to exercise its discretion in favour of the applicant. The following were the underlying principles that a Court should consider in exercising such discretion:
    1. extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party, at the discretion of the Court;
    2. a party who sought extension of time had the burden of laying a basis, to the satisfaction of the Court;
    3. whether the Court should exercise the discretion to extend time, was a consideration to be made on a case- to- case basis;
    4. where there was a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;
    5. whether there would be any prejudice suffered by the respondents, if extension was granted; and,
    6. whether the application had been brought without undue delay.
  2. The Court emphasized the need for the applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court. Delay caused by difficulties in getting typed proceedings was not a prima facie panacea whenever it was pleaded. Each case had to be determined on its own merit and all relevant circumstances considered.
  3. There was no certificate of delay from the Deputy Registrar of the Court of Appeal. Further, the applicant had not annexed the typed proceedings and the decree to confirm that they were obtained late.
  4. Assuming the proceedings and the decree were annexed and indeed obtained late, it was still noteworthy application was filed more than two months after obtaining the typed proceedings. The applicant had not provided a satisfactory explanation for the two-month delay. The applicant had attempted to explain the delay by attributing it to change of advocates but did not annex the notice of change of advocates nor explain the exact date within which the change occurred. The Court did not find the explanation satisfactory.
  5. The applicant did not pursue the procedure provided for under rule 33(6) of the Supreme Court Rules which allowed for filling of the requisite documents late, but without leave of Court. Having filed the notice of appeal on April 30, 2018, the last day for filling the Appeal was May 29, 2018. Thereafter, the applicant had a further fifteen days (until June 12, 2018) to file a supplementary record without leave. Therefore, the applicant ought to have filed the appeal and the record with the documents that were available to demonstrate some diligence, then later seek leave of Court to file the supplementary record out of time. Consequently, the applicant had not satisfactorily explained the inordinate delay of two months upon receipt of the typed proceedings.
  6. The applicant prayed that, as a result to the prayer for grant of extension, the petition of appeal annexed to the application be admitted and deemed to have been filed within time. The Court interrogated the record and found that there was no petition annexed to the application. Hence, in the absence of the petition, no further findings should be made on that prayer.

Application dismissed. The applicant should bear the cost of the application.

CRIMINAL PROCEDURE Driving under the influence of alcohol becomes an offence only when the driver cannot properly control the motor vehicle.

George Wambugu Thumbi v Republic
Criminal Appeal 1 of 2018
High Court at Nyeri
T M Matheka, J
March 4, 2019
Reported by Mathenge Mukundi

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Criminal Procedure-plea taking-unequivocal plea-correct procedure applicable to plea taking-whether a response of "it is true," to a charge constituted an unequivocal plea, where the ingredients of the charge were not explained.
Criminal Procedure-charge sheet-duplicity of charge-where in one count, an accused was charged with the offence of driving under the influence of drink and drinking when driving or in charge of a public service vehicle-effect of placing different offences in one count-Traffic Act (Cap 403), sections 44 & 45(1).
Jurisdiction-jurisdiction of the High Court-appellate jurisdiction of the High Court under section 348 of Criminal Procedure Code-whether the High Court had jurisdiction to hear and determine an appeal of an accused person who had pleaded guilty and had been convicted on that plea by a subordinate Court-Criminal Procedure Code (Cap 75), section 348.

Brief Facts:
The appellant was charged with the offence of driving under the influence of alcohol. He was a public service vehicle(PSV) driver and the motor vehicle was stopped because it appeared to be haphazardly driven. The appellant was smelling of alcohol and when the Alco blow test was conducted the level exceeded the permitted scale, and therefore, he was arrested and later charged. He pleaded guilty to the charges. The trial Court found him guilty and he was fined Kshs 100,000/- in default one year in prison, and also his PSV license was suspended for a period of 6 months.
The appellant filed an appeal seeking that the conviction be quashed, the sentence be set aside, on the grounds that his plea was not unequivocal, the conviction was based on inadmissible, insufficient and inconclusive facts, and that the sentence was harsh and excessive.

Issues:

  1. What were the ingredients to be proved that the accused person was incapable of proper control of the said motor vehicle?
  2. Whether during plea taking the accused person stating that “it is true” should be considered as entering a plea of guilty.
  3. Whether during plea taking the prosecution should have read to the accused person all the ingredients constituting the offence.
  4. Whether the appellant was prejudiced by the double charge which placed two offences under section 44 and section 45(1) of the Traffic Act with the different ingredients in the same charge sheet.
  5. Whether the High Court had jurisdiction to hear and determine an appeal of an accused person who pleaded guilty and was convicted on that plea by a subordinate court? Read More...

Relevant Provisions of the Law:
Traffic Act Cap 403
Section 44;
Driving under influence of drink
(1)Any person who, when driving or attempting to drive, or when in charge of a motor vehicle on a road or other public place, is under the influence of drink or a drug to such an extent as to be incapable of having proper control of the vehicle, shall be guilty of an offence and liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding two years or to both.
(2)A person convicted of an offence under this section shall, without prejudice to the power of the court to order a longer period of disqualification, be disqualified, for a period of twelve months from the date of conviction, for holding or obtaining a licence.

Section 45(1);
Prohibition of drinking when driving or in charge of public service vehicle
(1) Any person who, when driving or in charge of, or during any period of duty in connexion with the driving of, a public service vehicle or a commercial vehicle, drinks any intoxicating liquor shall be guilty of an offence and liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding two years or to both.

Held:

  1. The prosecution was required to show that the appellant took the alcohol while on duty as drinking while on duty was completely prohibited. The ingredients would have included specifics of where and when he drunk the intoxicating liquor; to what extent was he drunk; a medical report clearly stating that the accused person was under the influence of a drink to an extent that he was incapable having proper control of the vehicle was an essential element of the offence
  2. The court observed that the accused person had admitted that it was true he had taken alcohol but the previous night. Hence, it was still in his system at the time he was arrested. The prosecution was required to show that the appellant was so drunk that he could not exercise proper control of the said motor vehicle. The prosecution only produced Alco blow count, the law that stated that for PSV drivers the prescribed limit for alcohol was 0.00mg was not cited or disclosed to the trial Court.
  3. There was no evidence that was produced to show that the appellant was incapable of controlling the said motor vehicle. The prosecution submitted that the vehicle appeared to be driven ‘haphazardly’. What did that meant in reference to driving? Was it driven or it appeared to be driven? The facts as submitted were also vague. The failure by the prosecution to produce a medical report that the appellant was so drunk that he could not had a proper control of the said vehicle was fatal that the charges could not be said to have been proved.
  4. The procedure for calling upon an accused to plead required that the accused admit to all the ingredients of the offence charged before a plea of guilt could be entered against him. The words “it is true” standing on their own did not constitute an unequivocal plea of guilt. When an accused person responded “it is true” to a charge read to him, the accused person should be asked to what exactly he was saying was true.
  5. During plea taking, the charge and all the essential ingredients of the offence should have been explained to the accused in his language or in a language he understood. The accused own words should be recorded and if they were an admission, a plea of guilty should be recorded. It was desirable that every constituent ingredient of the charge be explained to the accused before being required to admit or deny the charge.
  6. Section 348 of the Criminal Procedure Code which provided that no appeal was allowed in a conviction arising from a plea of guilty, except to the extent and legality of the sentence, was not an absolute bar to challenging such a conviction on any other ground. The appellant was entitled to appeal to the High Court. As the High Court had the jurisdiction to entertain the appeal.
  7. Section 44 and section 45(1) of the Traffic Act ought to have been used individually as each section provides a substantive offence by itself. Each of them is self-contained and did not need the support of ‘as read with’ from the other. Section 44 gives the ingredients of the offence and the penalty. It left no room to be read with any other provision of the law. While section 45(1) was very specific. It addressed the person who was driving or was in charge of a public service vehicle.
  8. The offence under section 44 of the Traffic Act was driving under the influence of drink. To prove the offence, it was necessary to establish that the accused person was driving, attempting to drive or in charge of a motor vehicle on a road or public place while under the influence of a drink or drug and that he was incapable of having proper control of the vehicle.
  9. The prosecution provided Alco blow evidence that showed that the accused exceeded the prescribed drinking limit for drivers. It did not provide evidence to show that the appellant was incapable of controlling the motor vehicle. The ingredients of offences provided for under sections 44 and 45(1) of the Traffic Act were not proved.
  10. The appellant was prejudiced by the double charge which the prosecution placed two offences with different ingredients in the same charge sheet. That is, the offences under section 44 and section 45(1) should not be joined together as, their ingredients are different, also their penalties. On the basis of that it could not be said that the plea was unequivocal.

Appeal allowed. The plea of guilty set aside; the conviction was quashed and the sentence was set aside.

EVIDENCE LAW Supreme Court overturns the acquittal of two Iranian nationals convicted of terrorism related offences.

Republic v Ahmad Abolfathi Mohammed & Another
Petition 39 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
March 15, 2019
Reported by Mathenge Mukundi

Download the Decision

Evidence Law-confession and admission-difference between an admission and a confession-information obtained from an accused person during police interrogations-discovery of exhibits and further evidence from information offered to the police by an accused person-whether that information was either a confession or admission, which had to be taken in accordance with the law for it to be admissible-Evidence Act (Cap 80), sections 17 & 25.
Evidence Law-production and effect of evidence-burden of proof-burden of proving circumstances which, included facts especially within the knowledge of an accused person, that entailed an exception, exemption or qualification in relation to an offence-whether the burden of proving such circumstances was different or similar to the making of a confession or an admission-Evidence Act (Cap 80), sections 17, 25A & 111(1).
Evidence Law-circumstantial evidence-probative value of circumstantial evidence-claim that the finding of explosives in an open golf course, in which the accused persons were spotted, included an co-existing circumstances wherein any other person could have accessed the golf course and placed the explosives there-whether circumstantial evidence showed a complete chain of events which pointed to the guilt of the accused persons.

Brief facts:
The respondents were Iranian nationals who came to Kenya on June 12, 2012 on a tourist/business survey visa. During the tour they stayed in a hotel in Mombasa for five days, where they visited various places at the coast, they later travelled to Nairobi and spent a few days. While on their way back to Iran, they were arrested by the Anti-Terrorist Police Unit on allegations of being in the country on a terrorism mission.
The respondents were later charged before the Chief Magistrate’s Court, at Nairobi with the following offences: committing an act intended to cause grievous harm contrary to section 231(f) of the Penal Code, preparation to commit a felony contrary to section 308 (1) of the Penal Code and being in possession of explosives namelyCyclotrimethylenetrinitramine (RDX)contrary to section 29 of the Explosives Act. The respondents pleaded not guilty to all the charges but upon trial, they were convicted as charged and sentenced to life imprisonment on the first offence, 10 and 15 years to the second and third offences respectively. The sentences were ordered to run concurrently.
Aggrieved by that conviction and the sentence imposed upon them by the Magistrate’s Court, the respondents appealed to the High Court, as the first appellate court. Upon re-evaluation of the evidence on record, the High Court upheld the findings of the trial Court on the respondents’ conviction. It, however, allowed their appeal against sentence holding that the respondents, having been charged with what essentially constituted inchoate offences in that their intentions were nipped in the bud, the sentence of life imprisonment was excessive. Consequently, the Judge set aside that sentence and substituted it with a composite term of fifteen years’ imprisonment.
The respondents were still aggrieved by the High Court’s findings and moved to the Court of Appeal on a second appeal. Before that Court, they raised 19 grounds of appeal which their counsel condensed into six broad grounds, the Court of Appeal allowed their appeal, quashed their conviction and set aside the sentence. It was that decision which provoked the Supreme Court appeal by the State.

Issues:

  1. Whether the information given to the police by an accused person that led to the recovery of the RDX explosives was admissible only under section 25A or also under the provisions of section 111(1) of the Evidence Act;Whether evidence emanating from a suspect leading to discovery of further evidence should be equated with a confession under section 25A of the Evidence Act.Whether there was an apparent conflict between sections 25A and 111(1) of the Evidence Act, with respect to evidence obtained by the police from an accused person; and
  2. Whether the fact that any person other than the accused persons had access to a crime scene where explosives were placed, broke the chain of the circumstantial evidence on record and meat that anyone else could have committed the crime. Read More...

Relevant Provisions of the Law:
Evidence Act (Cap 80)
Section 17;
Admissions defined generally
An admission is a statement, oral or documentary, which suggests any inference as to a fact in issue or relevant fact, and which is made by any of the persons and in the circumstances hereinafter mentioned.

Section 25;
Confession defined
A confession comprises words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence.

Section 25A;
Confessions generally inadmissible
(1) A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Inspector of Police, and a third party of the person’s choice.
(2) The Attorney-General shall in consultation with the Law Society of Kenya, Kenya National Commission on Human Rights and other suitable bodies make rules governing the making of a confession in all instances where the confession is not made in court.

Section 111(1);
Burden on accused in certain cases
When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:

Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist:
Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defense creates a reasonable doubt as to the guilt of the accused person in respect of that offence.

Held:

  1. It was a common practice and standard operating procedure in the criminal investigations for the police to confront the suspects with any report they received about the suspects’ commission or involvement in the commission of a crime and demand an explanation. If the explanation the suspect gave led to the discovery of further evidence or exhibits, the evidence should be admitted though with corroboration for a conviction to be sustained. Hence, the information that was volunteered by the 1st respondent that led the police to the recovery of the RDX explosive was generally admissible without invoking section 25A or section 111(1) of the Evidence Act.
  2. Where there was a confession an accused person would acknowledge the commission of an offence and could be convicted on the basis of that acknowledgement alone but in the case of an admission the accused person would acknowledge a fact from which guilt could be inferred but additional evidence would be needed to prove the commission of an offence.
  3. The Court of Appeal noted, quite aptly, that it was never the appellant’s case that the respondents had confessed to committing the offences that they were charged with. The Appellate Court therefore, could not rely on section 25A of the Evidence Act because the respondents did not make a confession in terms of sections 25 and 25A of the Evidence Act. Hence, the Court of Appeal erred in equating the information given by the 1st respondent that led to discovery of RDX explosives to a confession in terms of sections 25 and 25A of the Evidence Act.
  4. There was no an apparent conflict between sections 25A (1) and 111(1) of the Evidence Act. The two sections related to different scenarios and would result in different effects. Section 25A (1) of the Evidence Act was applicable only to the information obtained by the prosecution during the interview and interrogations of the suspects during criminal investigations, whereas, section 111 (1) of the Evidence Act dealt with the burden of proof and only came into play in the trial when the prosecution had proved, to the required standard of beyond reasonable doubt, that the accused person had committed an offence and part of the prosecution case comprised of a situation only “within the knowledge” of the accused person so that if he did not offer an explanation, he risked conviction.
  5. Circumstantial evidence was like any other evidence. Though, its probative value should be reasonable, and not speculative, inferences ought to be drawn from the facts of a case. In contrast to direct testimonial evidence, it was conceptualized in circumstances surrounding the disputed questions of fact. Circumstantial evidence should never be given a derogatory tag. For a conviction to be sustained on the basis of circumstantial evidence, the chain of events had to be so complete that it established the culpability of the respondents, and no one else, without any reasonable doubt.
  6. There had to be no other co-existing circumstances weakening the chain of circumstances relied on and the circumstances from which the guilt inference was drawn had to be of definite tendency and to precisely point toward the guilt of the respondents. The appellant proved that the respondents visited the country on a tourist/business survey visa and upon their short stay in the country they neither visited any tourist destination nor met with any investor. The only place they visited thrice was where the RDX explosives were recovered in a freshly dug hole, at which, they had been seen at dusk by golfers at a spot where it was rare to find members of the public at that time. Upon being asked by the golfers what they were doing there at that time, they casually stated that they were “looking”. The golfers left them thereat around 6:30pmin the evening.
  7. Although the golf course was not fenced or guarded and it was possible for any member of the public to have entered it and to place the RDX where it was found, that did not break the chain of events. The respondents did not offer any plausible explanation for their three visits at the spot where the RDX explosives were recovered or on how the 1st respondent obtained the information that he volunteered to the police and led to the recovery of the explosives.
  8. The respondents vehemently dismissed the alleged admission as a fairy tale concocted by the police to incriminate them. However, upon consideration of the record, and particularly the trial Court’s finding that there was no evidence on record to support the accused’s claim that after his arrest he was drugged and that he only came to his senses while in Court, as well as the statement by the 2nd respondent that the police treated them well, the trial Court and the first appellate court’s finding that the 1st respondent indeed led the police to the discovery of the RDX explosives, was correct. The act of the 1st respondent that led the police to where the RDX explosive was discovered was an admission of the respondents’ possession of that explosive. The police did not know the respondents. The police said that they acted on intelligence information. The use of intelligence or informers’ reports was standard and common practice and the police were not obliged to disclose their informers as that would hamper crime detection in the country.
  9. All the aspects of the evidence on record corroborated the appellant’s case that the 1st respondent led the police to the scene where the RDX explosives were dug out. That considered alone precisely pointed to the respondents as the people who planted the RDX explosives at the scene where they were found. There was no evidence of anyone else having previously planted anything in the Mombasa Golf Course and more specifically in the vicinity of Hole No. 9 where the RDX explosive was discovered. The respondents visited that spot at least thrice, the last visit having been a day before the recovery of the RDX explosive. Had the Court of Appeal considered all these factors, it would have come to a different conclusion.
  10. The Court of Appeal erred in holding that any admission made outside section 25A of the Evidence Act was inadmissible. It also erred in holding that the conviction in the case was based solely on circumstantial evidence. The 1st respondent’s act of leading the police to Hole No. 9 on the Mombasa Golf Club course where the RDX explosive was dug out, was an admission of a material fact which, coupled with the circumstantial evidence on record sealed the respondents’ guilt. In the circumstances the appeal had merits.

Per M K Ibrahim, SCJ (dissenting)

  1. It was imperative that the rationale for the enactment of section 25A of the Evidence Act was not lost. The reason behind its enactment showed why it was not in conflict with section 111 of the Evidence Act. The enactment was clearly prompted by the raging debate at the time of enactment which brought serious concerns as to the capability of the police to extract confessions without resorting to means that led to gross miscarriage of justice and grave human rights violations. Generally, confessions made by the accused person were not admitted in evidence unless they were made strictly in accordance with the law.
  2. The 1st respondent had special knowledge of where the substance was buried. The substance was buried in a hidden place. The only inference that the court could draw from the evidence adduced by the appellant was that it was the respondents who had buried the said substance in the place where it was found. That was circumstantial evidence. The law regarding circumstantial evidence was that the Court had to consider whether the exculpatory evidence adduced by the prosecution was inconsistent with the innocence of the accused and pointed to no one else other than the accused as the persons who committed the offence. The appellant established that it was the 1st respondent who escorted the police to the specific spot at the golf course where the explosive substance was recovered.
  3. In reaching at its decision, the High Court drew conclusions from the circumstantial evidence adduced by the prosecution and not the accused’s confession, for no confession was on record. The High Court concluded that both direct and circumstantial evidence placed the respondent within the proximity of the area where the RDX was buried and later recovered.
  4. The Court noted that the evidence of the appellants’ possession of the RDX was purely circumstantial because no witness saw them in possession of the substance or placing the same in the golf course. The evidence was emphatic that other than being at the golf course, the appellants were not in physical possession of any luggage orparcel. There was no other circumstantial evidence tying or linking the appellants to the RDX, the easy accessibility, without let or hindrance, of the golf course entailed strong co-existing circumstances that were capable of destroying the inference of guilt on the part of the appellants.
  5. The evidence was purely circumstantial and was not enough to prove the case as against the respondents to the required standard, which was proof beyond reasonable doubt. It was also imperative to note that while the police evidence was that the 1st respondent was the one who led them to the spot at Mombasa Golf Club where the RDX was discovered, that evidence was used to equally convict the 2nd respondent. That aspect was not picked up by either of the Superior Courts and was another reason militating against the case against the respondents. The prosecution evidence was never water-tight.
  6. With respect to public interest, it was a fact that the country had been a victim to several terrorist attacks, with the recent one being the ‘Dussit Hotel Complex Attack’. As a result, public interest and awareness in matters concerning terrorism had increased. Any alleged association of individuals with acts of terrorism was a matter that the public really frowned upon. Hence as expected, the matter attracted a lot of public interest and media coverage. To the public, the fact that the respondents were Iranians charged with acts of terrorism was enough to have them convicted and sentenced.
  7. The Court was required to strike a balance between the public’s interest and expectations on one hand, and the constitutional principles applicable within the criminal justice system on the other, the most fundamental principles being the presumption of innocence and the Rule of Law. The public’s perception on the seriousness of an offence should never be a factor in determining the guilt of an accused or his acquittal. There was a paradox at the heart of all criminal procedure, in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important constitutional protections of the accused persons became.
  8. The presumption of innocence served not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system. Reference to the prevalence and severity of a certain crime therefore did not add anything new or special to the balancing exercise. Although, the public resented and abhorred the respondents’ acquittal by the Court of Appeal, in determining the matter, the Court should only focus on issues that were before the Court of Appeal and the law. The gravity of the offence and the public sensitivity of the issue(s) ought not to be given emphasis to the exclusion of very important constitutional provisions and fundamental rights and freedoms, which the Constitution guaranteed to all persons, especially within the criminal justice system.
  9. The Court of Appeal correctly found that the chain of circumstantial evidence was broken and the evidence on record was not watertight or conclusive enough to sustain a conviction of the two respondents. The fact that the Golf Course was an open area, was not fenced and was accessible to any member of the public created a reasonable doubt as to the guilt of the two respondents in respect of the offence in question.
  10. S C Wanjala, SCJ (dissenting)

  11. The High Court and Court of Appeal interpreted sections 25A and 111(1) of the Evidence Act, as if they dealt with the same genre of evidence; confessions and admissions. The superior courts perceived a conflict between the two, in terms of the admissibility of certain evidence obtained from a suspect during investigations. However, the two sections of the Evidence Act did not deal with the same family of evidence. In fact, they were so unrelated, that there could hardly be any conflict between them
  12. A correct reading of sections 25A and 111 of the Evidence Act clearly showed that the two did not address similar, or even related evidentiary issues. Section 25A of the Evidence Act dealt with the process of searching for, collecting and admissibility of evidence.The process took place before a person was formally charged with a criminal offence, hence the requirement that a confession or admission should be made before a judge, a magistrate or a police officer not being an investigating officer of the rank of Inspector. Once charged, then the question of whether his confession or admission of fact was admissible arose. Section 25A of the Evidence Act mainly regulated the investigative process. Once a person was formally charged, he became an accused person, but the information he could have given, or a confession or admission he could have made during investigations, had to be subjected to the requirements of section 25A and any other related provisions of the Evidence Act, dealing with questions of admissibility of evidence, be it a confession or an admission.
  13. Section 111 (1) of the Evidence Act, did not address the process of searching for, collecting, or admissibility of evidence. The section dealt with the question of burden of proof in certain circumstances. The opening words of the section read “when a person is accused of any offence, the burden of proving….”. In other words, the section placed the burden of proving that an accused person was exempted from, or fell within an exception to the offence with which he was charged on him. For example, an accused person could have pleaded the defence of diplomatic immunity, and consequently, that he was exempted from the criminal charge. It had nothing to do with a confession or an admission of a fact, tending to the guilt of an accused. It was actually the other way round, meaning facts that would have brought an accused person within an exception, or qualification to, or exemption from, the law creating that charge. 
  14. Information provided by a suspect, which led to the discovery of material evidence did not fall within the provisions of section 111 (1) of the Evidence Act. Such information was of course relevant to the process of collecting evidence. However, if the information had the character of an admission or confession, it had to fall under the provisions of section 25A of the Evidence Act, for the latter, regulated the admissibility of a confession or any admission of a fact intending to the proof of guilt…” 
  15. It was no longer in question that for circumstantial evidence to justify the inference of guilt, it had to be watertight, in that the exculpatory facts had to be incompatible with the innocence of the accused. The circumstances taken cumulatively, should form a chain so complete that there was no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. The burden of proving the completeness of the chain always remained on the prosecution, it never shifted to the accused.
  16. As the Court of Appeal observed, the evidence on record indicated that the golf course was not fenced or guarded and that it was possible for any member of the public to have entered it and placed the RDX where it was found. In the absence of any other circumstantial evidence tying or linking the appellants to the RDX, the easy accessibility, without let or hindrance, of the golf course was strong co-existing circumstance that was capable of destroying the inference of guilt on the part of the appellants.  All that the Court ought to have done was to satisfy itself whether, the evidence on record supported the finding of guilt beyond any reasonable doubt. The evidence relied upon by the prosecution was not water-tight enough to prove the guilt of the accused beyond reasonable doubt. 

Appeal allowed, the respondents were to serve the remainder of their imprisonment term after which they would be repatriated to their country

JURISDICTION Requirement to be met before the decision of a single judge of the Supreme Court could be reviewed by a bench of five judges.

Tom Odhiambo Ojienda SC v Kenya Revenue Authority & The Law Society of Kenya [2019] eKLR
Petition (Application) 6 of 2019
Supreme Court at Nairobi
D K Maraga CJ &P; M K Ibrahim, J Ojwang, S Wanjala & I Lenaola, SCJJ
February 11, 2019
Reported by Flora Weru and Kakai Toili

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Jurisdiction-jurisdiction of the Supreme Court-special jurisdiction-jurisdiction to review the decision of a single judge of the Supreme Court by a bench of five judges-requirements to be met-what was the requirement to be met before the decision of a single judge of the Supreme Court could be reviewed by a bench of five judges-Supreme Court Act, section 24(2); Supreme Court Rules, 2012, rule 4(4)
Civil Practice and Procedure-orders-conservatory orders-application for conservatory orders-documents to be filed in support of an application for conservatory orders-petition of appeal-failure to file a petition of appeal-what was the effect of failure to file a petition of appeal in support of an application for conservatory orders, where an applicant sought conservatory orders at the Supreme Court against a decision of the Court of AppealBrief facts:
The applicant applied for conservatory orders to the Court against a decision of the Court of Appeal; however, the single judge of the Court dismissed the application holding that the application was not predicated upon a petition of appeal. Aggrieved by the decision the applicant filed the instant application on the ground that the single judge erred in holding that the application was not supported by a petition of appeal yet a petition of appeal was on record.

Issues:

  1. What was the requirement to be met before the decision of a single judge of the Supreme Court could be reviewed by a bench of five judges?
  2. What was the effect of failure to file a petition of appeal in support of an application for conservatory orders, where an applicant sought conservatory orders at the Supreme Court against a decision of the Court of Appeal?
  3. Read More..

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 163 (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 (5).

Supreme Court Act
Section 24 (2);
Any person dissatisfied with the decision of one judge in the exercise of a power under subsection (1) is entitled to have the matter determined by a bench of five judges.

Supreme Court Rules, 2012
Rule 3 (5)
Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders or give directions as may be necessary for the ends of justice or to prevent abuse of the process of the Court

.Rule 4(4)
A party aggrieved by the decision of a single Judge of the Court may file an application for review of the decision to the Court

.Rule 26(1)
A party who seeks to have an application heard on a priority basis shall file an application which shall be —

(a) accompanied by a certificate of urgency; and
(b) supported by an affidavit setting out the urgency.

Held:

  1. Section 24(2) of the Supreme Court Act, 2011 and rule 4(4) of the Supreme Court Rules, 2012 contemplated that decisions of a single judge of the Court could be reviewed by a bench of five judges.
  2. In an application for review, the applicant had to demonstrate how a single judge erred in making the impugned decision or how the said decision was clearly wrong as a result of which there had been an apparent injustice.
  3. Although the applicant filed a petition of appeal on February 7, 2019, seeking to appeal the ruling and order of the Court of Appeal which ruling and order was the subject of the application which was dismissed by the single judge, the petition was not before the judge neither was it traceable at the time she made her orders. The single judge did not err by holding that there was no petition of appeal on record and striking out the applicant’s notice of motion dated February 7, 2019. However, since there was a petition on record, the applicant was at liberty to file a fresh application as he wished.

Application dismissed
Orders

  1. The applicant’s notice of motion dated February 8, 2019 was dismissed.The applicant was at liberty to file a fresh application for conservatory orders as he deemed fit and the same to be determined on its merits.
  2. No orders as to costs.

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