Weekly Newsletter 018/2019

Weekly Newsletter 018/2019



Kenya Law

Weekly Newsletter


Disparaging remarks made by an advocate, directed to a court, through oral and/or written submissions amount to professional misconduct
Republic v Ahmad Abolfathi Mohammed and another
Petition 39 of 2018
Supreme Court at Nairobi
D K Maraga CJ & P; M K Ibrahim, J B Ojwang, S C Wanjala, N Njoki & I Lenaola, SCJJ
March 15, 2019
Reported by Ian Kiptoo
Download the Decision
 
Advocates-professional misconduct-obligations of an advocate-where an advocate made disparaging remarks in both oral and written submissions-disparaging remarks towards authority of a court-what was the duty of an advocate towards the Court, the Public and the profession as a whole in the course of a trial-whether disparaging remarks made by an advocate through oral and written submissions amounted to professional misconduct-Advocates Act, sections 55 and 56; Law Society Act, section 4
 
Brief Facts:
The matter before the Court was an appeal from the Judgment of the Court of Appeal. However, in the course of the trial the judicial task of hearing counsel and deliberating upon the relevant issues was besieged by scenarios of conduct bordering on contempt which the Court had to signal, reprimand, and for the future, prescribe lines to be adhered to by any advocate canvassing his or her client’s case.
 
Issues:
  1. What was the duty of an advocate towards the Court, the Public and the profession as a whole in the course of a trial?
  2. Whether disparaging remarks made by an advocate, directed to a court, through oral and/or written submissions amounted to professional misconduct.
Relevant Provisions of the Law
Advocates Act
Section 56
 “Nothing in this Act shall supersede, lessen or interfere with the powers vested in the Chief Justice or any of the judges of the Court to deal with misconduct or offences by an advocate, or any person entitled to act as such, committed during, or in the course of, or relating to, proceedings before the Chief Justice or any judge.”
 
Supreme Court Act, 2011 (Act No. 7 of 2011)
Section 28

 “(1) A person who

 (a) assaults, threatens, intimidates, or wilfully insults  a judge of the Supreme Court… during a sitting or attendance in Court….; or
 (b) wilfully interrupts or obstructs the proceedings of   the Supreme Court…; or
 (c) wilfully and without lawful excuse disobeys an order or direction of the Supreme Court in the course of the hearing of a proceeding, commits an offence….

 “(3) The Supreme Court may sentence a person who commits an offence under Subsection (1) to imprisonment for a period not exceeding five days, or to pay a fine not exceeding five hundred thousand shillings or both, for every offence.
 “(4) The Supreme Court shall have the same power and authority as the High Court to punish any person for contempt of Court in any case to which Subsection (1) does not apply.
  “(5)  Nothing in Subsections (1) to (3) shall limit or affect the power and authority referred to in Subsection (4).”

 
  Held:
  1. It baffled the mind, how counsel for the respondents, an advocate of the High Court, and a leading member of the Law Society of Kenya, seeking justice for his clients before the Court, could address the Bench in such terms, both by written submissions and verbally: a mode of address deliberately chosen, even though studiously insolent and impertinent, condescending and offensive. Such a mode of advocacy, as was perceived, was not only careless, thoughtless and improper, but was imprudent, and clearly intended to cast aspersions at the Court and to taint its credibility as a core institution of the constitutional order.
  2. Counsel for the respondents was more than discourteous towards the Court; he was evincing willful disrespect for the authority of the Court, conducting himself in a manner certainly calculated to lower the dignity of the Court. That was the typical instance of a trespass well outside the bounds of legitimate advocacy. Counsel for the respondents, an advocate and an officer of the Court fell distinctly short, on his terms as an officer of the Court, and conducted himself in a disgraceful and reprehensible manner.
  3. On admission to the Bar, all advocates made an affirmation, as officers of the Court. The status of an Advocate as an officer of the Court was expressly provided for in An Advocate consequently bore an obligation to promote the cause of justice and the due functioning of the constitutionally-established judicial process ensuring that the judicial system functioned efficiently, effectively, and in a respectable manner.In that context, advocates bore the ethical duty of telling the truth in Court, while desisting from any negative conduct, such as dishonesty or discourtesy.The overriding duty of the advocate before the Court was to promote the interests of justice, and of motions established for the delivery and sustenance of the cause of justice.
  4. Section 4 of the Law Society Act charged the Advocate with certain obligations which included:
    1. set, maintain and continuously improve the standards of learning, professional competence and professional conduct for the provision of legal services in Kenya;
    2. determine, maintain and enhance the standards of professional practice and ethical conduct and learning for the legal profession in Kenya; and
    3. facilitate the realization of a transformed legal profession that was cohesive, accountable, efficient and independent.

    So clear was the position of the statute law regarding the integrity of the advocate, as a vital player in the cause of justice, as that manifested itself within the Court system.

  5. Advocates, while discharging their duties, were under obligation to observe rules of professionalism, and in that behalf, they were to be guided by the fundamental values of integrity.
  6. Counsel for the respondents bore the title Senior Counsel, a title in respect of which the section 2 provided for. The designation as Senior Counsel was a recognition of outstanding status for the bearer; it symbolized the identification of those advocates whose achievement and standing, invoked the expectation that they were in a position to render distinguished service as advocates and counsellors, in the cause of due and meritorious administration of justice.
  7. For most practical purposes, the Supreme Court functioned as the ultimate appellate Court. Before the Court, as before any court bearing appellate jurisdiction, the submissions of learned counsel, whether written or oral, had a crucial significance. Senior Counsel in particular, who have had long experience in the conduct of litigation had an obligation of conducting themselves with perceptible decorum, such as manifested itself in truly respectful temperament, as well as language, when they appeared before the Court. That was vital for the due administration of justice, to which no option fell due. The Court was conscious of the fact that the vibrato attending a hearing in court could conduce to vigorous, and sometimes forceful argumentation by counsel, on no single occasion, was such to depart from the deportment of courtesy towards the Court, and towards contending parties and their counsel.
  8. Willful insult directed at a Judge during trial was prohibited in all civilised legal process. Not only did such insult degrade the constitutional process of dispute-resolution, but it disrupted and distorted the orderly procedure which alone, would lead to the requisite adjudication of claims resting with the Court. In the instant matter, Senior Counsel for the respondent had set out to question the Court’s jurisdiction. While it was allowable that the argumentation could properly have been made with all vigour, it would ill-become legitimate cause to be attended with offensive melodrama, sustained with denigrating depictions such as: “exercising illegitimate political power.”
  9. The Court bore responsibility for exercising disciplinary procedure against Advocates who, in its full view, displayed conduct unbecoming of an Advocate. That was provided for under section 56 of the Advocates Act and there was no novelty in judicial interpretation in relation to the foregoing provision.
  10. The Court took note that the functioning of the reparatory aspect of the Contempt of Court Act under section 24A, at the moment, and with regard to the operations of the High Court and the Court of Appeal, admitted of uncertainty quite apart from the fact that It was not applying them to the instant matter but affirmed such not to be the case as regarded the which was founded upon the section 28 (1), (3), (4) and (5).
  11. There was no doubt that an act in contempt of the Court constituted an affront to judicial authority; the Court had the liberty and empowerment to mete out penalty for such conduct in a proper case.The object was, first, to vindicate the Court’s authority; secondly, to uphold honourable conduct among advocates in their standing as officers of the Court; and thirdly, to safeguard its processes for assuring compliance so as to sustain the rule of law and the administration of justice.
  12. In the instant matter, it was made plain that counsel would not engage in such course of conduct as was depicted in the Ruling, and any default in that regard, in the future, would occasion contempt-of-court proceedings, with the inevitable consequences, and if not, then appropriate sanctions for contempt in the face of the Court.
All the offending paragraphs of the written submissions of Senior Counsel for the respondents, as set out in paragraph [2] of the Ruling, would not remain as part of the record of the Supreme Court, and would forthwith be expunged and wholly obliterated from the record of the Supreme Court.
Kenya Law
Case Updates Issue 018/2019
Case Summaries

CIVIL PRACTICE AND PROCEDURE How should an appellate court proceed when the file that is required to guide its further orders and/or directions becomes untraceable?

Francis Kandenge & another v Jackson Njagi Mirio
Civil Appeal 41A of 2003
High Court at Nyeri
T M Matheka, J
March 1, 2019
Reported by Mathenge Mukundi

Download the Decision

Civil Practice and Procedure-court records-missing file-where a file whose production was required for purposes of the issuance of further orders and directions could not be traced-whether a skeleton file could be used by the Court to make orders-Civil Procedure Rules, 2010, Order 42 rule 25

Brief facts:
The background to the application related to the record of two cases- Kerugoya SRMCC 133 of 2000 and Embu succession cause 34 of 1996. In the civil suit, the trial Court found that the respondent was not an innocent buyer for value, that the seller had no capacity to sell the land to him and that the applicant’s purchase of land from the deceased was not controverted. It turned out that the deceased had sold the suit property during his life time in 1976 to the applicants. That sale was a subject of a suit Nyeri CMCC 277 of 1982 between the applicants and the deceased; the outcome of which was that the land was to be divided into two equal shares, one to the applicants, the other to the sons of the deceased. The trial Court ordered the parcel of the land to be retransferred to the applicants and revoked the grant issued in Embu succession cause 34 of 1996.
The respondent appealed to the High Court on seven grounds which the Court collapsed into one, namely, whether or not the trial Court had the jurisdiction to revoke a grant of representation issued and confirmed by the Embu Court in succession cause 34 of 1996. The High Court agreed with the trial Court findings but ordered for production of the court file in respect of Embu succession cause 34 of 1996 for further orders and/or directions. The order for the production of the file kept the case as a backlog case for the 10 years. The matter was mentioned more than 25 times before different judges to confirm the whereabouts of the court file in respect of Embu succession cause 34 of 1996. The file went missing and was completely untraceable.
The fact that the file had become untraceable provoked the application for the court file in respect of Embu succession cause 34 of 1996 to be presumed as lost or unavailable and for the orders therein to be revoked and for a new grant to be issued.

Issues:

  1. Whether there was a relationship between a missing file and a judgment in which orders for the production of the file for purposes of the issuance of further orders and directions had been made.
  2. What was the purpose of recalling, the missing file, Embu succession cause 34 of 1996?
  3. What was the effect of the disappearance of the physical file of Embu succession cause 34 of 1996 on the rights of the parties and the substantive orders in place?
  4. What orders could the court make in the event that a court file was completely lost? Read More..

Held :

  1. The orders for the production of the court file relating to Embu succession cause 34 of 1996 had a relationship to the appeal as they were orders forming the last paragraph of the judgment in the appeal. The effect of the judgment was that section 76 of the Law of Succession Act was invoked and the grant was revoked. All that was left was a perusal of the Embu file for purposes of directions and further orders.
  2. The High Court’s order for the production of the Embu file was for purposes of issuance of directions to the parties after the revocation of the grant. There was need to appoint new administrators, and have the estate properly redistributed and to have the matter brought to an end.
  3. The rights of the parties were not determined by the missing file. The rights were determined by the findings of fact and the law. The fact that the appeal was allowed, did not confer any rights which had been taken away by the trial Court, to the respondent. Indeed, the High Court’s position was that by revoking the grant, it placed the parties in the same position that the trial Court had put them.
  4. Pursuant to the grant issued in the Embu succession cause 34 of 1996, the deceased’s daughter had fraudulently distributed her father’s estate between herself and the respondent whom the trial Court found did not qualify as a beneficiary. The High Court agreed with the trial Court that the grant was revocable and invoked section 76 of the Law of Succession Act and revoked the grant. With the grant revoked the only persons beneficially entitled to the estate of the deceased were the four persons mentioned in the order of May 16, 1994 in Nyeri SRMCC 277 of 1982.
  5. The only file that reflected the Embu succession cause 34 of 1996 was the skeleton file that was left in the file. Since the original file was completely lost, the Court acted on the skeleton file. A fresh grant was to be issued, and a certificate of confirmation would be issued in the names of the four persons in the order of May 16, 1994 in SRMCC 277 of 1982:
    1. 1st applicant- 1.25 acres;
    2. 2nd applicant- 1.25 acres;
    3. The two sons of the deceased- 0.5 acres jointly.
  6. The deputy registrar would execute all the necessary documents to effect the grant.

Application allowed.

JURISDICTION The extent of a court’s powers to reject a formal charge in criminal proceedings.

Director of Public Prosecutions v Kuldip Madan & another
Miscellaneous Criminal Application 809 of 2018
High Court at Nairobi
G W Ngenye-Macharia, J
March 11, 2019
Reported by Beryl A Ikamari

Download the Decision

Jurisdiction-jurisdiction of the High Court-supervisory jurisdiction of the High Court-the High Court's jurisdiction to revise orders of a subordinate court-whether the High Court would not have revisionary jurisdiction where an application for revision was made by a party that had failed to appeal against the order concerning which revision was sought-Constitution of Kenya 2010, article 165(6) & 165(7); Criminal Procedure Code (Cap 75) sections 362 & 364.
Criminal Procedure-abuse of the process of the court-alleged failure to comply with statutory requirements-claim that an application for revision was made after the applicant failed to exercise the right of appeal-whether the application for revision was an abuse of the process of the court-Criminal Procedure Code (Cap 75) section 364(5).
Statutes-interpretation of statutory provisions-principles applicable to statutory interpretation-application of natural meaning (literal), purposive interpretation and contextual interpretation-the nature of the proper approach to statutory interpretation.
Statutes-interpretation of statutory provisions-interpretation of section 89 of the Criminal Procedure Code-extent of powers granted to a subordinate court under section 89 to reject a charge where it was defective and did not disclose an offence-whether those powers were applicable to charges drawn under section 134 to 137 of the Criminal Procedure Code-Criminal Procedure Code (Cap 75) sections 89 & 134 -137.

Brief facts:
The applicant applied for the High Court to exercise its supervisory powers and to satisfy itself as to the correctness, legality and propriety of the orders made in a ruling, dated May 23, 2018, by the Chief Magistrates Court at Nairobi in Milimani Criminal Case 2005 of 2017 (Republic v Kuldip Madan Sapra & another) and to make such orders as it deemed fit.
The orders against which revision was sought related to rejection of charges for want of disclosure of an offence. There was a right of appeal to be exercised within 14 days of the making of the orders but an appeal was not lodged within that period. Instead, an application for revision was lodged. The respondents stated that the application related to matters that ought to have been canvassed via an appeal and was an abuse of the process of the court. They added that the revision sought would have the effect of embarrassing the High Court wherein succession cause No. 26 of 2011 was pending.
The complainant was facing manslaughter charges in a different criminal trial and stated that she was a beneficiary to the estate of her deceased husband and should not be ostracized because of the charges. She filed an objection in the succession cause and also made criminal complaints against the respondents. The Subordinate Court rejected the charges preferred against the respondents in its ruling dated May 23, 2018.

Issues:

  1. Whether the High Court's revisionary jurisdiction was limited under section 364(5) of the Criminal Procedure Code such that the jurisdiction could not be exercised at the insistence of a party that failed to utilize a right of appeal against an order, finding or sentence that was in question.
  2. Whether the filing of an application for revision against an order of a subordinate court after failing to utilize an appeal mechanism, was an abuse of the process of the court.
  3. What was the proper approach to statutory interpretation?
  4. Under what circumstances would a charge be rejected by a court under section 89 of the Criminal Procedure Code?
  5. Whether the rejection of a charge by a court on grounds that it was defective and did not disclose an offence could be done both for charges drawn under section 89 of the Criminal Procedure Code and those drawn under sections 134 to 137 of the Criminal Procedure Code. Read More..

Relevant provisions of the law
Constitution of Kenya 2010
Article 165(6) & 165(7);
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice

Criminal Procedure Code (Cap 75)
Section 362;
362. The High Court may 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 or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

Section 364(5);
When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.

Section 89;
(1) Proceedings may be instituted either by the making of a complaint or by the bringing before a magistrate of a person who has been arrested without warrant.
(2) A person who believes from a reasonable and probable cause that an offence has been committed by another person may make a complaint thereof to a magistrate having jurisdiction.
(3) A complaint may be made orally or in writing, but, if made orally, shall be reduced to writing by the magistrate, and, in either case, shall be signed by the complainant and the magistrate.
(4) The magistrate, upon receiving a complaint, or where an accused person who has been arrested without a warrant is brought before him, shall, subject to the provisions of subsection (5), draw up or cause to be drawn up and shall sign a formal charge containing a statement of the offence with which the accused is charged, unless the charge is signed and presented by a police officer.
(5) Where the magistrate is of the opinion that a complaint or formal charge made or presented under this section does not disclose an offence, the magistrate shall make an order refusing to admit the complaint or formal charge and shall record his reasons for the order.

Held :

  1. The High Court's revisionary jurisdiction was part of its supervisory jurisdiction which was provided for in section 362 of the Criminal Procedure Code and article 165(6) & 165(7) of the Constitution.
  2. Section 364(5) of the Criminal Procedure Code prohibited the exercise of revisionary jurisdiction at the insistence of a party that could have lodged an appeal against a particular finding, sentence or order that was in question. Revision was a constitutional relief that was given expression in statute. Section 364(5) of the Criminal Procedure Code was not meant to preclude the High Court from exercising its revisionary jurisdiction where a matter was brought before it by a party who had an unutilized right of appeal and it was not intended to derogate from the constitutional powers provided in article 165 and sections 362 & 364 of the Criminal Procedure Code. The word “insistence” in section 364(5) meant that the High Court could exercise revisionary jurisdiction suo moto even on the basis of information provided by an aggrieved person who failed to exercise the right to appeal.
  3. The application was not an abuse of the court process. The Court was empowered to determine whether there was any incorrectness, illegality or irregularity or impropriety in the order of the Subordinate Court in which the charge in question was rejected.
  4. In interpreting a statute the Court would identify the meaning borne by the words in question in the particular context. The Court's task would be to ascertain the intention of parliament expressed in the language under consideration.
  5. Section 89 of the Criminal Procedure Code was within the part of the Code titled, 'Institution of Proceedings,' under the sub-heading 'Making a complaint.' Thus the provision was about institution of proceedings through the making of a complaint.
  6. Section 89(1) of the Criminal Procedure Code, inter alia, stated that proceedings could be instituted by either making a complaint or bringing the person arrested before a magistrate. Further under section 89(2) of the Criminal Procedure Code, a complaint could be made to a magistrate on the basis of reasonable and probable cause that an offence had been committed. The nature of the complaint would either be oral or written.
  7. Under section 89(4) of the Criminal Procedure Code, upon receipt of a complaint, a magistrate had the mandate to draw or cause to be drawn a formal charge containing a statement of the offence charged unless such a charge was signed and presented by a police officer.
  8. Section 89(5) of the Criminal Procedure Code allowed the Court to refuse to admit any complaint or formal charge that did not disclose an offence. In practice, the High Court and subordinate courts had misconstrued the provision as one that gave wide ranging powers to magistrates to refuse formal charges that were presented to them by prosecutors. However, the power provided under section 89(5) of the Criminal Procedure Code applied only to a complaint or formal charge made under section 89. Therefore, a court could not narrowly interpret subsection 5 without having regard to the intention of the entire section 89.
  9. Section 89(5) of the Criminal Procedure Code referred to both a complaint and a formal charge. Within section 89 of the Criminal Procedure Code, there was meaning given to the term 'complaint' but the term 'formal charge' required definition. The charge under that provision was not the same charge referred to under section 134 of the Criminal Procedure Code as that charge was one drawn by a police officer and presented to court.
  10. Section 90 of the Criminal Procedure Code which echoed the unique nature of section 89 of the same Code offered a parallel procedure for issuing warrants and summons when a complaint or formal charge was brought under section 89. Apparently, it was applicable to the parallel system of bringing suspects to book which was necessary in the past when prosecutorial procedure in Kenya was not properly structured and so charges would be drawn in court after the presentation of a suspect.
  11. Sections 134 to 137 of the Criminal Procedure Code were applicable to formal charges drafted by a police officer or public prosecutor. Although the provisions did not expressly provide for the rejection of a charge, the Court had inherent power to protect its processes from abuse. Therefore, if persuaded a court could reject a charge and also satisfy itself as to whether it complied with section 134 of the Criminal Procedure Code.
  12. The Subordinate Court equated the criminal proceedings with a bid to revoke the grant issued to the respondents. However if a criminal offence was committed within the course of a civil or probate matter, nothing would stop investigators from investigating criminal culpability. Section 193A of the Criminal Procedure Code allowed civil and criminal proceedings to proceed concurrently.
  13. The charges faced by the respondents were framed within the provisions of sections 134 to 137 of the Criminal Procedure Code. The criminal charges were legal and in order and the respondents ought to disprove their involvement in the commission of a criminal act at trial.

Application allowed.

CIVIL PRACTICE AND PROCEDURE The Director of Public Prosecutions’ power to withdraw criminal charges should not be denied arbitrarily by the trial Court.

Republic v Leonard Date Sekento
Criminal Revision 1 of 2018
High Court at Kajiado
R Nyakundi, J
March 28, 2019
Reported by Mathenge Mukundi

Download the Decision

Criminal Procedure-withdrawal of charges-what was the legal threshold needed to be met by the office of the Director of Public Prosecution before withdrawing charges at the subordinate court-what was the role of the court in restricting or consenting to the withdrawal of the charges- Criminal Procedure Code (Cap 75), section 87(a)

Brief Facts:
The respondent was charged with three counts, namely, obtaining money by false pretenses, forging a false document with intent to defraud and uttering a false document - a title deed, purporting it to be the genuine title deed of land parcel Kajiado/METO/590 with intent to defraud.
The respondent pleaded not guilty to all the counts. The prosecution was unable to adduce any evidence before the Court to prove their case against the respondent but instead they applied to withdraw the charges against the accused person. The application to withdraw the charges by the prosecution was denied twice by the trial Court leading to the application for revision before the High Court.

Issues:

  1. What was the legal threshold to be met by the prosecution in order to withdraw charges at a subordinate court?
  2. What was the role of the Court, under section 87 of the Criminal Procedure Code, in restricting or consenting to the withdrawal of the charges by the prosecution?Read More...

Relevant Provisions of the Law.
Criminal Procedure Code (Cap 75);
Section 87(a);
Withdrawal from prosecution in trials before subordinate courts
In a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person, and upon withdrawal—

(a) if it is made before the accused person is called upon to make his defence, he shall be discharged, but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts;

Held:

  1. The essential character of the office of the Director of Public Prosecutions (DPP) under article 157 of the Constitution was that in exercise of its power the principle of independence was guaranteed and availed to the office. In fact, the article provided that in exercise of his powers or functions the Director of Public Prosecutions was not under the direction or control of any person or authority. The Constitution under articles 157 (6), (7), (8), (10) and (11) vested the DPP with express powers to prosecute all criminal cases on behalf of the state. The broad function of the DPP was to initiate, take down, continue or choose to discontinue any criminal prosecution before a court of law.
  2. The considerations of the DPP in relation the decision to initiate or discontinue a criminal proceeding were to be weighed against the broader doctrine of justice for the public. An important element of the power to initiate, undertake or withdraw any criminal proceedings by the prosecution was the need to ensure justice was not only seen to be done but that justice was done in the matter.
  3. Section 87(a) of the Criminal Procedure Code allowed the public prosecutor, with the consent of the Court, at any time before judgment, to withdraw charges. Where charges were withdrawn before an accused person was called upon to make his defence, the accused person would be discharged. If the charges were withdrawn after the accused person had been called upon to make his defence, the accused person would be acquitted. The power would be exercised in the interest of the administration of justice and to avoid abuse of the process.
  4. A central principle borne by the trial Court was whether the threshold had been met before the decision to discharge or acquit the accused person was reached at. The trial Court exercising discretion under section 87(a) or (b) of the Criminal Procedure Code would consider whether the prosecutor had acted beyond his constitutional powers. If the application passed the test set by the legislature, then it would not be the business of the Court to control a prosecutor who was acting in accordance with his constitutional role and enabling provisions of the Code.
  5. There were exceptional circumstances under which the Court could regulate the Director of Public Prosecutions’ jurisdiction. The Court had power to regulate the DPP when he acted improperly, not in the interest of justice, acted beyond the powers vested by the Constitution or carried out some arbitrary objective under the guise of discharging the functions of the office of the prosecutor.
  6. The role of the Court was clearly defined under article 50(1) of the Constitution and it was to decide the cases brought and filed by the respective parties fairly and independently. The trial Court misapplied and misinterpreted the law and wrongfully denied the prosecutor the opportunity to withdraw the charge. The Court’s discretion was meant to advance the administration of criminal justice and not to frustrate it. It was apparent from the two impugned orders in the case that the approach taken by the Subordinate Court was a stringent interpretation denying both parties right to a fair hearing.
  7. The spirit and tenor of judicial discretion was to advance the objects and principles of the right to a fair trial under article 50 of the Constitution. The fact that article 157 of the Constitution empowered the Director of Public Prosecution to prosecute all criminal cases, meant that the trial Court on receiving the request under section 87(a) of the Criminal Procedure Code had the power to judiciously consider the elements of the provisions and proceed to give them effect in the manner stated in the Code. The subordinate courts were bound to set the machinery under section 87 of the Criminal Procedure Code in motion and not to rigidly decline consent. The right for the prosecutor to be allowed to withdraw the charge at any stage of the proceedings before final judgment should not be denied merely on grounds of prejudice on the part of the accused. The accused person had sufficient avenues to further his rights under the bill of rights.
  8. It was in the interest of justice and proper working of a criminal justice system that the Director of Public Prosecution should be accorded the discretion to discontinue or withdraw charges at any time before judgment. The statutory provision requiring the sanction of the Court under section 87 (a) of the Criminal Procedure Code when an accused person was already charged with the offence was a formal way to inform the Court and seek consent to take further directions on the case. It could be that new facts or evidence had emerged and they were not available at the time of arrest and investigation of the accused. Further, it was possible that the initial decision to prosecute the accused person on the evidence collected was no longer desirable or tenable.
  9. The fairness of the decision by the Subordinate Court was in question. Clearly, the jurisdiction exercised to decide to withdraw consent laid bare the fact that the Subordinate Court misconstrued the Criminal Procedure Code and acted on no prima facie evidence occasioning an error manifest on the face of the record. Leaving the order to stand would at best occasion prejudice and a failure of justice to the prosecution and the victims who alleged that their rights had been infringed by the unlawful act of the accused person.

Appeal allowed.

CONSTITUTIONAL LAW The best interests of the child are superior to principles of law and foreign court orders

SAJ v AOG & another [2019] eKLR
Miscellaneous Civil Application 15 of 2009
High Court at Nairobi
W. Musyoka, J.
February 15, 2019
Reported by Robai Nasike & Moses Rotich

Download the Decision

Constitutional Law- fundamental rights and freedoms – rights of children – best interests of children - whether the best interests of children could override a foreign court summary order- whether the best interests of children could supersede international principle of reciprocity - Constitution of Kenya, article 53; Children Act, section 4(2)and (3);African Charter on the Rights and Welfare of the Child (ACRWC), article 4(1); Convention on the Rights of the Child (CRC), article 3(1)
Children Law- whether the birth and rights of a child had to be viewed independently of the relationship between the parents – whether a mother’s act of removing a child from one jurisdiction to another without the consent of the father constituted child abduction – Children Act, sections 4(2)and(3), 6(1), (2) and (3); Convention on the Rights of the Child (CRC), articles 3(1), 9(1)and(3),10(2),11(1), and 35
International Law- treaties- application of treaties- application of treaties with due regard to principles of legal reciprocity- application of treaties in a private dispute that transcended two countries and one country was not a signatory to that treaty- whether an international treaty could be applied by a country that was not a signatory to it- whether the Hague Convention 1980 could be applied by Kenya although it was not a signatory to the Convention
Words and Phrases-abduction-definition of abduction-the act of leading someone away by force or fraudulent persuasion- Black’s Law Dictionary, 9th edition

Brief facts:
The petitioner sought prayers that the child-ZAJ, the subject of the proceedings, be returned to the High Court of Justice, Family Division, England within three days, that the 2nd respondent liaises with the United Kingdom’s Central Authority to the intent that the child was placed under the wardship of the High Court of Justice, Family Division, England and for the 2nd respondent to produce before the Court a Certificate of Compliance and a stay of proceedings and of execution of any order issued or made in Nairobi Children’s Case No 439 of 2008. In opposing the application, the respondent stated that ZAJ was habitually resident in Kenya, Kenya was not a signatory to the Hague Conventions and could not issue orders under that convention, and that the best interests of the child would prevail.
The arguments therefore raised the issue whether the removal of ZAJ from the United Kingdom was wrongful and in breach of the petitioner’s rights as his biological father and in breach of the child’s right to parental affection.

Issues:

  1. Whether one parent removing a child from one jurisdiction to another without the consent of the other parent constituted international child abduction.
  2. Whether, in a matter concerning a child, a court may decline to enforce an order of a foreign court or depart from a well-settled principle of law if it was not in the best interest of the child.
  3. Whether an international treaty could be applied by a country that was not a signatory to it.Read More...

Relevant Provisions of the Law
The Constitution of Kenya, 2010
Article 2(5), (6)
(5)The general rules of international law shall form part of the law of Kenya.
(6)Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.

Article 53 (1)
53. Children
(1) Every child has the right—

(a) to a name and nationality from birth;
(b) to free and compulsory basic education;
(c) to basic nutrition, shelter and health care;
(d) to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour;
(e) to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not; and
(f) not to be detained, except as a measure of last resort, and when detained, to be held—

(i) for the shortest appropriate period of time; and
(ii) separate from adults and in conditions that take account of the child’s sex and age.

(2) A child’s best interests are of paramount importance in every matter concerning the child.

Children Act, 2001
Section 76(1)
(1) Subject to section 4 where a court is considering whether or not to make one or more orders under this Act with respect to a child it shall not make the order or any other orders unless it considers that doing so would be more beneficial to the welfare of the child than making no order at all.

International Convention on Rights of the Child (CRC)
Article 35
States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.

African Charter on the Rights and Welfare of the Child
Article 4(1)
In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.

Held:

  1. When determining whether an argument raised a constitutional issue, the court was not strictly concerned with whether the argument would be successful. The question was whether the argument forced the court to consider Constitutional rights or values. Where the court was satisfied that the petition met the threshold of a constitutional petition, the court would proceed to hear and determine it under powers donated by articles 23 and 165 of the Constitution of Kenya. Article 259 of the Constitution obligated the courts to interpret the constitution in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights and permitted the development of the law and contributed to good governance.
  2. Child abduction in the context of the petition had nothing to do with the crime defined in the Penal Code but referred to removal of a child from one jurisdiction to another without the consent of the parent. Article 29(1) of the African’s Charter on the Rights and Welfare of the Child directed state parties to take measures to prevent the abduction of children for any purpose, in any form, by any person including parents or legal guardians of the child. The Children Act at section 13(1) provided that a child was entitled to protection from abduction by any person.
  3. The welfare and happiness of the infant was the paramount consideration in questions of custody that all other considerations had to yield to. Such an order did not have the force of a foreign judgment. Comity demanded not its enforcement, but its grave consideration. That distinction rested on the peculiar character of the jurisdiction and on the fact that an order providing for the custody of an infant could not in its nature be final.
  4. In determining allegations of abduction, the court was required to assume jurisdiction to determine whether to send the children back to the jurisdiction from whence they came without going into the details of the dispute between the parents, and without more than such investigations as satisfied the court that the children would come to no harm. Hence, it was not enough for the petitioner to claim that the 1st respondent abducted the child. He had to go further and demonstrate that the child had suffered prejudice as a result of his continued retention in Kenya. In all matters involving a child, the best interest of the child had to be given paramount consideration
  5. The strength of a summary order for the return of the child to the country from which it was removed did not rest on the so-called ‘kidnapping’ of the child, or an order of a foreign court, but on the assessment of the best interests of the child. Both, or either, were relevant considerations, but the weight to be given to them had to be measured in terms of the interest of the child, not in terms of penalizing the kidnapper, or of comity, or any other abstraction. Kidnapping like other kinds of unilateral action in relation to children, was to be strongly discouraged, but the discouragement had to take the form of a swift, realistic and unsentimental assessment of the best interests of the child, leading, in proper cases to the prompt return of the child to his or her own country, but not the sacrifice of the child’s welfare to some other principle of law.
  6. Almost ten years had lapsed since the 1st respondent ‘abducted’ the child as alleged. It was most probable that the child was settled in his new environment and an order for his return would only jeopardize his welfare and benefit the petitioner. Article 53(2) of the Constitution, section 4(2) of the Children’s Act, 2001, article 3(1) of the Convention on the Rights of the Child and article 4(1) of the African Charter on the Rights and Welfare of the Child, all provided that in actions concerning the child, the best interest of the child had to be the primary consideration
  7. Almost ten years had lapsed since the 1st respondent ‘abducted’ the child as alleged. It was most probable than not that the child was settled in his new environment and an order for his return would only jeopardize his welfare and benefit the petitioner. Article 53(2) of the Constitution, section 4(2) of the Children’s Act, 2001, article 3(1) of the Convention on the Rights of the Child and article 4(1) of the African Charter on the Rights and Welfare of the Child, all provide that in actions concerning the child, the best interest of the child shall be the primary consideration.
  8. Kenya was not a signatory to the Hague Convention 1980; however, its provisions could be employed to ensure that the best interest of the child was given primary consideration. That was also with regard to the principle of legal reciprocity. At the time of the alleged ‘abduction’ the child was living with the petitioner and 1st respondent in the United Kingdom which was a signatory to the Convention. One of the objectives of the Convention as provided under article 1 of the Convention was to secure the prompt return of children wrongfully removed to or retained in any contracting state. As per article 4 of the Convention, that applied to any child who was habitually resident in a contracting state immediately before breach of any custody or access rights. However, in the instant case, the custody case was yet to be determined and the provisions of the Convention alluded to could not apply. Even if the provisions applied, they had to be measured against the best interest of the child.

Application dismissed.

TORT LAW Repetitions and republications of defamatory statements create new causes of action in defamation suits

Performance Products Ltd & another v Hassan Wario Arero & 7 others [2018] eKLR
Civil Case 37 of 2016
High Court at Nairobi
B. Thuranira Jaden, J
October 3, 2018
Reported by Flora Weru and Kakai Toili

Download the Decision

Tort Law- defamation-libel-republished and repetition of defamatory statements- whether repetitions and republications of alleged defamatory statements could create a new cause of action in defamation suits-what was the timeline within which to institute a defamation suit- Limitation of Action Act section 4(2)
Civil Practice and Procedure-preliminary objections-nature of preliminary objections- what was the nature of a preliminary objection

Brief facts:
The plaintiffs filed a suit claiming to have been defamed by the defendants through the publication of a report titled “Anti-Doping Taskforce Report.” The report in question was dated April, 2014. It was alleged the 3rd, 4th, & 5th defendants published or caused the same to be published.
On September 30, 2015 the 1st defendant held a press conference with the 3rd defendant’s reporters and referred to information by the 6th defendant and the report by the 2nd defendant. The 7th and 8th defendants were sued as a worldwide web site and a television station respectively that were alleged to have also published the defamatory material.

Issues:

  1. What was the nature of a preliminary objection?
  2. Whether repetitions and republications of alleged defamatory statements could create a new cause of action in defamation suits?
  3. What was the timeline within which to institute a defamation suit? Read More..

Relevant Provisions of the Law
Limitation of Actions Act
Section 4 (2)
An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued: Provided that an action for libel or slander may not be brought after the end of twelve months from such date.

Government Public Authorities Act
Section 3
1) No proceedings founded on tort shall be brought against the Government or a local authority after the end of twelve months from the date on which the cause of action accrued.
2) No proceedings founded on contract shall be brought against the Government or a local authority after the end of three years from the date on which the cause of action accrued.
3) Where the defence to any proceedings is that the defendant was at the material time acting in the course of his employment by the Government or a local authority and the proceedings were brought after the end of –

(a) twelve months, in the case of proceedings founded on tort; or
(b) three years in the case of proceedings founded on contract,
from the date on which the cause of action accrued, the court, at any stage of the proceedings, if satisfied that such defendant was at the material time so acting, shall enter judgment for that defendant.

Held:

  1. A preliminary objection consisted of a point of law which had been pleaded, or which arose by clear implication out of pleadings, and which if argued as a preliminary point could dispose of the suit. Examples were an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties were bound by the contract giving rise to the suit to refer the dispute to arbitration.
  2. A preliminary objection was in the nature of what used to be a demurrer. It raised a pure point of law which was argued on the assumption that all the facts pleaded by the other side were correct. It could not be raised if any fact had to be ascertained or if what was sought was the exercise of judicial discretion.
  3. A suit based on the tort of defamation should be brought within a period of 12 months from the pleadings the re- publication of the alleged defamatory report on February 15, 2015 and September 30, 2015 was pleaded. The plaint was filed within 12 months of the said re-publication.
  4. Republications and repetitions of the alleged defamatory statement created a further or new cause of action. The person repeating or republishing the alleged libel was as guilty as its author where the republication was authorized or intended; republication was a foreseeable consequence of the original publication. There was a moral, legal or social obligation on the recipient of the original publication to communicate the defamatory imputation in a third party.

Preliminary Objection was dismissed with costs

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