Provisions on parental responsibility under the Children Act, Law of Succession Act and Birth & Deaths Registration Act declared unconstitutional for being discriminatory to children born out of wedlock
NSA & another v Cabinet Secretary for, Ministry of Interior and Coordination of National Government & another  eKLR
Petition 17 of 2014
High Court at Kakamega
J. Njagi, J
February 7, 2019
Reported by Flora Weru
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Constitutional Law – interpretation of the Constitution – guiding principles in interpreting the Constitution – what were the principles applicable in interpreting the Constitution, interpreting Statutory Provisions and in interpreting statutory provisions vis – a – vis the Constitution – Constitution of Kenya, 2010, articles 2 and 259
Constitutional Law - fundamental rights and freedoms - rights of the child – best interests of the child - right to equality - freedom from discrimination - whether section 2(b) of Children Act that gave a father the discretion of choosing whether a child was to be his relative or not was discriminatory and against the best interest of the child – Constitution of Kenya, 2010 article 27 and 53; Children Act Section 2 (b)
Constitutional Law - fundamental rights and freedoms - right to equality - freedom from discrimination – whether section 27(2) of the Children Act that provided that the father could only take up responsibility of a child after the death of the mother if he had acquired parental responsibility was discriminatory to unmarried fathers on ground of marital status - Constitution of Kenya, 2010 article 27; Children Act section 27(2)
Constitutional Law- fundamental rights and freedoms -rights of the child – right to equality - whether section 94 (1) of the Children Act that implied that parents of children born out of wedlock had to assume parental responsibility before they could be ordered to pay maintenance towards their children was a violation of the right to equality which commanded equal responsibility of the mother and father to provide for the child whether they were married to each other or not- Constitution of Kenya, 2010 article 53; Children Act Section 94 (1)
Constitutional Law - fundamental rights and freedoms - rights of the child – best interests of the child - whether section 102(1) of the Children Act was against the best interests of the child in so far as the father of a child born out of wedlock needed to ‘acquire parental responsibility’ for them to take up parental responsibility of the child upon the death of a mother - Constitution of Kenya, 2010 article 53; Children Act Section102 (1)
Constitutional Law - fundamental rights and freedoms - rights of the child – best interests of the child - whether section 158 4(b) of the Children Act was inconsistent with the Constitution in that in adoption proceedings it only provided for the consent of the parent or guardian of the mother of the child where the mother of a child born out of wedlock was a child, but did not provide for the consent of the parents or guardian of the father where the father was a child- whether section 158 4(c) of the Children Act was inconsistent with the Constitution in so far as the father of a child born out of wedlock needed to acquire parental responsibility for them to take up parental responsibility and be regarded as a father for purposes of consenting to the adoption of the child- Constitution of Kenya, 2010 article 53; Children Act Section158 4(b)& 4(c)
Constitutional Law – fundamental rights and freedoms – right of the child – best interests of the child - whether sections 3(2) and 3(3) of the Law of Succession Act were inconsistent with the Constitution in so far as a child born out of wedlock was regarded as such if the father had expressly recognized or in fact accepted as a child of his own or for whom he had voluntarily assumed permanent responsibility - Constitution of Kenya, 2010 article 53; Law of Succession Act section 3(2)& (3)
Constitutional Law - fundamental rights and freedoms – rights of the child - rights of a child born out of wedlock-requirements of consent from fathers before registration of the birth of a child - whether a child born out of wedlock was entitled to have the name of his or her father inserted into the certificate of birth without the father’s consent-Constitution of Kenya, 2010, article 53(1)(e)
The petitioners challenged discrimination by the law on children born out of wedlock and unmarried women on the basis of birth, sex and marital status.
The 1st petitioner averred that she was cohabiting with one PM as a result of which they were blessed with two issues, EA and NF, out of wedlock. She averred that she had serious challenges getting the name of the father of the children inserted in the children’s birth certificates as he had declined to have his name inserted therein and thus denied the minors identity; that EA was issued with a birth certificate which had markings xxx on the place meant for the father’s name and that NT was yet to be issued with one. The 1st petitioner contended that the law required consent of the father before his name was inserted in the children’s birth certificates which according to her was discriminatory and violated her constitutional rights and that of the children to equal protection before the law, equality, dignity, a name, parental care and protection and equal responsibility of father and mother to provide for them.
The petitioners contended that the language in some sections of the Children Act were discriminatory to children born out of wedlock and to unmarried mothers. They also contended that section 12 of the Birth and Deaths Registration Act and sections 3(2) and 3(3) of Law of Succession Act were discriminatory to children born out of wedlock.
- Whether section 2(b) of the Children Act that gave a father the discretion of choosing whether a child was to be his relative or not was discriminatory and against the best interest of the child.
- Whether section 27(2) of the Children Act that provided that the father could only take up responsibility of a child after the death of the mother if he had acquired parental responsibility was discriminatory to unmarried fathers on ground of marital status and contrary to the provisions of article 27(4) of the Constitution.
- Whether section 94(1) of the Children Act that implied that parents of children born out of wedlock had to assume parental responsibility before they could be ordered to pay maintenance towards their children was in contravention of article 53(1)( e) of the Constitution which commanded equal responsibility of the mother and father to provide for the child whether they were married to each other or not.
- Whether section 102(1) of the Children Act was inconsistent with article 53(1)(e) of the Constitution in so far as the father of a child born out of wedlock needed to ‘acquire parental responsibility’ for them to take up parental responsibility of the child upon the death of a mother.
- Whether section 158 4(b) of the Children Act was inconsistent with the Constitution in that in adoption proceedings it only provided for the consent of the parent or guardian of the mother of the child where the mother of a child born out of wedlock was a child, but did not provide for the consent of the parents or guardian of the father where the father was a child.
- Whether section 158 4(c) of the Children Act was inconsistent with the Constitution in so far as the father of a child born out of wedlock needed to acquire parental responsibility for them to take up parental responsibility and be regarded as a father for purposes of consenting to the adoption of the child
- Whether sections 3(2) and 3(3) of the Law of Succession Act were inconsistent with the Constitution in so far as a child born out of wedlock was regarded as such if the father had expressly recognized or in fact accepted as a child of his own or for whom he had voluntarily assumed permanent responsibility.
- Whether the requirement of a father’s consent for his name to be inserted in the certificate of birth prior to registration of the birth of a child born out of wedlock was discriminatory and therefore unconstitutional.
- Whether the Court could order for birth certificates of children born out of wedlock to be issued without there being regulations on the entry to the birth register of names of fathers of children born out of wedlock, as had been prescribed in another High Court decisions.
- Whether the High Court had the jurisdiction to supervise other courts of equal jurisdiction.
- What were the principles applicable in;
- Interpreting the constitution
- Interpreting statutory provisions
- Interpreting statutory provisions vis-a vis the constitution?
Relevant Provisions of the Law
Constitution of Kenya, 2010;
1) This constitution is the supreme law of the Republic and binds all persons and all state organs at both levels of government.
2) No person may claim or exercise state authority except as authorized under this constitution.
3) The validity or legality of this constitution is not subject to challenge by or before any court or other state organ.
4) Any law, including customary law that is inconsistent with this constitution is void to the extent of the inconsistency, and any act or omission in contravention of this constitution is invalid.
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 24 (1);
1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
(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.
Births and Deaths Registration Act
No person shall be entered in the register as the father of any child except either at the joint request of the father and mother or upon the production to the registrar of such evidence as he may require that the father and mother were married according to law or, in accordance with some recognized custom.
Section 2 (b);
“ relative”, in relation to a child, means any person related to the child, whether of the full blood, half blood or by affinity, and
a)where an adoption order has been made in respect of the child or any other person under this Act, any person who would be a relative of the child within the meaning of this definition if the adopted person was the child of the adopter born inside marriage; or
(b) where the child is born outside marriage and the father has acknowledged paternity and is contributing towards the maintenance of the child, the father of the child within the meaning of this definition if the child was the child of his mother and father born inside marriage.”
Section 24 (1) and (b);
(1) Where a child’s father and mother were married to each other at the time of his birth, they shall have parental responsibility for the child and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental responsibility.
(2) Where a child’s father and mother were not married to each other at the time of the child’s birth and have subsequently married each other, they shall have parental responsibility for the child and neither the father nor the mother of the child shall have a superior right or claim against the other in the exercise of such parental responsibility.
(1) a parental responsibility agreement shall have effect for the purposes of this Act if it is made substantially in the form prescribed by the Chief Justice.
(2) A parental responsibility agreement may only be brought to an end by an order of the court made on application by—
(a) any person who has parental responsibility for the child; or
(b) the child himself with the leave of the court.
(3) The Court may only grant leave under subsection (2)(b) if it is satisfied that the child has sufficient understanding to make the proposed application.
Section 27 (2);
Where the father and mother of the child were not married at the time of the birth of the child and have not subsequently married each other—
(a) on the death of the mother of the child, the father of the child, if he has acquired parental responsibility under the provisions or this Act, shall if he is still living, have parental responsibility for the child either alone or with any testamentary guardian appointed by the mother or the relatives of the mother;
(b) on the death of the father of a child who has acquired parental responsibility under the provisions of this Act, the mother of the child shall exercise parental responsibility in respect of the child either alone, or with any testamentary guardian appointed by the father:..
Section 102 (1);
For the avoidance of doubt, in this Part, “guardian” means a person appointed by will or deed by a parent of the child or by an order of the court to assume parental responsibility for the child upon the death of the parent of the child either alone or in conjunction with the surviving parent of the child or the father of a child born out of wedlock who has acquired parental responsibility for the child in accordance with the provisions of this Act.
Section 158 (4);
Subject to section 159 an adoption application shall be accompanied by the following written consents to the making of an adoption order in respect of any child—
(a) the consent of every person who is a parent or guardian of the child or who is liable by virtue of any order or agreement to contribute to the maintenance of the child;
(b) in the case of a child born out of wedlock whose mother is a child, with the consent of the parents or guardian of the mother of the child.
(c) in the case of a child born out of wedlock whose father has acquired parental responsibility in respect of the child under the provisions of this Act, with the consent of the father.
Law of Succession Act
Section 3 (2) and (3);
(2) In relation to a female person, a child born to her out of wedlock, and in relation to a male person, a child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility
(3) child born to a female person out of wedlock, and a child as defined by subsection(2) as the child of a male person, shall have relationship to other persons through her or him as though the child had been born to her or him in wedlock.
- The High Court had inherent power and constitutional jurisdiction to interpret the Constitution of Kenya, 2010 (Constitution), the Bill of Rights and other laws on principles premised by article 3, 10, 20(3),(4) and (5), 21, 24, 159, 165(3)(b) and ( d), 258, 259 and 260 of the Constitution.
- The Constitution should be interpreted 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 that contributed to good governance. Article 159(2)(e) of the Constitution mandated the Court, in exercising its judicial authority, to protect and promote the purpose and principles of the Constitution.
- The Constitution of a nation was not simply a statute which mechanically defined the structures of government and the relationship between the government and the governed. It was a mirror reflecting the national soul; the identification of ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining its government. The spirit and the tenor of the Constitution had to preside and permeate the processes of judicial interpretation and judicial discretion.
- The provisions of the Constitution had to be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other.
- There was a general presumption that every Act of Parliament was constitutional. The burden of proving the contrary rested upon any person who alleged otherwise. The Constitution qualified that presumption with respect to statutes which limited or were intended to limit fundamental rights and freedoms. Under the provisions of article 24 there could be no presumption of constitutionality with respect to legislation that limited fundamental rights: it had to meet the criteria set under article 24.
- In determining whether an Act of Parliament is unconstitutional, consideration had to be given to the objects and purpose of the legislation.
- In interpreting the Constitution, the court would be guided by the general principles that;
- the Constitution was a living instrument with a soul and consciousness of its own as reflected in the preamble and fundamental objectives and directive principles of state policy. Courts had to therefore endeavor to avoid crippling it by construing it technically or in a narrow spirit. It had to be construed in tune with the lofty purposes for which its makers framed it. So construed, the instrument became a solid foundation of democracy and the rule of law. A timorous and unimaginative exercise of judicial power of constitutional interpretation left the Constitution a stale and sterile document;
- the provisions touching fundamental rights had to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that the people enjoyed their rights, the young democracy not only functioned but also grew, and the will and dominant aspirations of the people prevailed. Restrictions on fundamental rights had to be strictly construed.
- A party alleging violation of a constitutional right or freedom had to demonstrate that their fundamental right had been impaired, infringed or limited. Once a limitation had been demonstrated, then the party which would benefit from the limitation had to demonstrate a justification for the limitation. The State, in demonstrating that the limitation was justifiable, had to demonstrate that the societal need for the limitation of the right outweighed the individual’s right to enjoy the right or freedom in question.
- Article 53 of the Constitution was the reference point as far as the rights of children were concerned. It was the yardstick by which laws relating to children were to be measured. The plain meaning of the article was that fathers and mothers had equal responsibility to a child they bore, and that responsibility was not left to the volition of the man or woman. The bottom line was that both of them had to take responsibility.
- In determining whether a law was inconsistent with the Constitution so as to make the said law invalid, a court needed to lay the article of the Constitution which was invoked beside the statute which was challenged and to decide whether the latter squared with the former.
- The Children Act No. 8 of 2001 was enacted before the promulgation of the Constitution. There had been no review of the Act to align it with the Constitution. Some of the provisions of the Act were inconsistent with the Constitution.
- Section 2(b) of the Children Act gave a father the discretion of choosing whether a child was to be his relative or not. A reading of the section had the meaning that if a father did not acknowledge paternity of a child or had not been contributing to the maintenance of the child, that child could not be considered to be a relative of the father. It also meant that children born inside wedlock had an automatic right to be the relatives of their fathers while those born outside wedlock had no such right. That was discriminatory on the children born outside wedlock on the ground of birth. That violated the right of equal treatment before the law to children born outside wedlock. The definition was against the spirit of article 53 of the Constitution and offended the principle of the best interests of the child, which the constitution placed at a higher pedestal than that of the father or mother.
- It was in the best interest of a child for the child to be recognized as a relative of his father’s relatives whether the child’s parents were married to each other or not. The definition of ‘relative’ in section 2(b) of the Children Act was in contravention of articles 27(1) of the Constitution which provided for equal treatment before the law and article 27(4) that barred discrimination on the ground of birth.
- Section 24(1) and (2) of the Children Act placed equal responsibility for a father and mother who were married either before or after a child’s birth. That section was in line with article 53(1) of the Constitution on equal responsibility of the father and mother whether they were married to each other or not. It had not been shown that the section was in contravention of the Constitution.
- Section 26 of the Children Act provided for parental responsibility agreements which agreements could only be vitiated like any other contract. There was nothing wrong in having parental responsibility agreements in so far as they were not in conflict with the Constitution and relevant statutes.
- Section 27(1) of the Children Act provided for transmission of parental responsibility to a father and mother who were married or had subsequently married after the birth of the child. The section provided for the doctrine of survivorship in case of death of either parent where responsibility of the child was transferred to the surviving parent. There was nothing wrong with that provision as a surviving parent continued to have responsibility towards their child.
- Section 27(2) of the Children Act provided for transmission of parental responsibility of unmarried parents when either parent died. It provided that the father could only take up responsibility after the death of the mother if he had acquired parental responsibility. That was against the principle of equal responsibility of parents under article 53(1) (e) of the Constitution which right could not be qualified for reason that the father had or had not acquired parental responsibility. Parental responsibility was automatic and self-activating on parents upon the birth of a child and fathers could not have the discretion of either accepting or rejecting that responsibility. It also meant that a parent who had not acquired parental responsibility could not do so after the death of the other parent. The section was therefore discriminatory to unmarried fathers on ground of marital status contrary to the provisions of article 27(4) of the Constitution.
- Section 94 (1) of the Children Act implied that parents of children born out of wedlock had to assume parental responsibility before they could be ordered to pay maintenance towards their children. A parent could not opt out of parental responsibility. The section was in contravention of article 53 (1)( e) of the Constitution which commanded equal responsibility of the mother and father to provide for the child whether they were married to each other or not.
- Section 102(1) of the Children Act was inconsistent with the Constitution in so far as the father of a child born out of wedlock needed to ‘acquire parental responsibility’ for them to take up parental responsibility of the child upon the death of a mother. The Court reiterated the automation of parental responsibility upon birth of a child, and the said responsibility was not left to the discretion of either the father or mother. The section was in contravention of article 53 (1) (e) of the Constitution.
- Section 158 4(b) of the Children Act was inconsistent with the Constitution in that in adoption proceedings it only provided for the consent of the parent or guardian of the mother of the child where the mother of a child born out of wedlock was a child but did not provide for the consent of the parents or guardian of the father where the father was a child. That was discriminatory on such fathers in that their parents or guardian were not required to give consent in adoption proceedings. The section was in contravention of articles 27(1) and 27 (4) of the Constitution on equality before the law.
- Section 158 4(c) of the Children Act was inconsistent with the Constitution in so far as the father of a child born out of wedlock needed to ‘acquire parental responsibility’ for them to take up parental responsibility and be regarded as a father for purposes of consenting to the adoption of the child. The section was discriminatory on fathers who had not acquired parental responsibility. The section had the implication of treating fathers differently based on whether one had acquired parental responsibility which was against the spirit of article 27(1) on equal treatment before the law.
- Sections 3(2) and 3(3) of the Law of Succession Act were inconsistent with the Constitution in so far as a child born out of wedlock was regarded as such if the father had expressly recognized or in fact accepted as a child of his own or for whom he had voluntarily assumed permanent responsibility. A parent’s responsibility to their child was mandatory and not discretionary. The section was in contravention of article 53 (1)(e) of the Constitution which required parents to provide for their children whether they were married or not.
- Section 12 of the Births and Deaths Registration Act had already been declared unconstitutional by the High Court. Directions were issued to the Registrar of Deaths and Births to within 14 days put into place mechanisms to facilitate the entry into the birth register of names of the father of children born outside wedlock. Before such names were entered into the register there had to be some regulations in place. The petitioner did not inform the court whether such regulations had been put into place. An order for birth certificate to be issued to the children of the 1st respondent indicating the name of their father could not issue before the law was amended to cater for that.
- The mandate of the Court was to ascertain whether a law was inconsistent with the constitution or not. The court did not supervise other courts of equal jurisdiction. The instant Court could not issue prohibitory orders on other judges of the High Court. Even though the Court had powers to supervise the Magistrates’ Courts, it could not issue orders that would be difficult to supervise or implement.
- The impugned sections of the Births and Deaths Registration Act, the Children Act and the Law of Succession Act should be amended to align them with the Constitution of Kenya 2010.
Petition allowed, each party bears its own costs
Case Updates Issue 019/2019
|| Before a court terminates criminal proceedings the victim/complainant should be given an explanation and the victim’s interests should be considered.
Republic v Edwin Shanda
Criminal Revision 178 of 2015
High Court at Eldoret
O Sewe, J
March 6, 2019
Reported by Mathenge Mukundi
Criminal Procedure-rights of a victim in criminal proceedings and termination of criminal proceedings-termination of proceedings via withdrawal of charges-considerations of the Court in giving consent where a prosecutor made a request for the withdrawal of charges- whether a victim, who would be adversely affected the decision to terminate criminal proceedings, should be permitted to make presentations and have his or her views considered before the decision on termination of proceedings could be made-Victim Protection Act, No. 17 of 2014, section 9(2.)
The respondent was charged with defilement and an alternative charge of indecent act with a child. The charges were, however, withdrawn under section 87(a) of the Criminal Procedure Code, on the instructions of the Director of Public Prosecutions vide the letter dated July 26, 2015.
Aggrieved by that decision, counsel for the victim approached the High Court seeking revision and asking the Court to call for and examine the record of the criminal proceedings before the lower Court for purposes of satisfying itself as to the correctness, legality or propriety of the findings and orders recorded. Particularly, the victim wanted the Court to consider the fact that the rights of the victim as enshrined in section 9 of the Victim Protection Act were not taken into consideration in arriving at the decision to terminate the criminal proceedings, that it was improper for the Court to consider the contents of the letter dated July 26, 2015 when it contained material errors in so far as it related to a deceased person named Pius Musa Kibanya and not the victim before the lower court and in so far as it alluded to the age of the victim to be 14 years and not 15 years. The victim added that it was improper for the lower Court to receive a letter from the prosecution discussing the merits or demerits of the prosecution case where no nolle prosequi had been entered.
- Whether the court should permit the victim’s views and concerns to be presented and considered, where the personal interests of a victim would be adversely affected by a decision to terminate criminal proceedings.Read More..
Relevant Provisions of the Law
Victim Protection Act, No. 17 of 2014;
Section 9 (2)
Rights during the trial process
Where the personal interests of a victim have been affected, the Court shall--
(a) permit the victim's views and concerns to be presented and considered at stages of the proceedings determined to be appropriate; and
(b) ensure that the victim's views and concerns are presented in a manner which is not-
(i) prejudicial to the rights of the accuse; or
(ii) inconsistent with a fair and impartial trial.
- There was no doubt that the Director of Public Prosecutions was endowed with decisional independence when it came to the making of prosecutorial decisions. Article 157(10) of the Constitution ordained that the Director of Public Prosecutions would not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, the DPP would not be under the direction or control of any person.
- Having commenced criminal proceedings, the Constitution recognized that the Director of Public Prosecutions was accountable and had to comply with the applicable provisions of the Constitution and the relevant statutes in managing the prosecutorial process, including applications for termination of criminal cases. Accordingly, whereas in article 157(6)(c) of the Constitution, it was stipulated that the Director of Public Prosecutions had power to discontinue, at any stage before judgment was delivered, any criminal proceedings instituted by or taken over by him, sub-article 8 was explicit that the Director of Public Prosecutions would not discontinue a prosecution without the permission of the Court.
- A decision to terminate a criminal trial was not a decision that was shielded from scrutiny. In any case, the application for revision was targeting, not the prosecutorial decision to terminate the lower court case, but the propriety and legality of the proceedings conducted by the trial Court in Eldoret Chief Magistrate's Criminal Case No. 3471 of 2015; and whether, in permitting the Director of Public Prosecutions to withdraw that case under section 87(a) of the Criminal Procedure Code, the lower Court applied its mind to the relevant provisions of the law.
- It was to be expected that the question as to the propriety of the identification of the suspect and the veracity of the evidence of the complainant be left for determination by the lower Court. Consequently, it was improper, for the lower Court to accede to the application for termination on those grounds as it amounted to a usurpation of the role of the lower Court as the trier of facts.
- The views of the complainant were not taken into account by the lower Court when the decision was taken to terminate the criminal case; a case that concerned her interests. The record of the lower Court showed that, whereas an explanation of the import of the letter dated July 26, 2015 was made to the accused person, the victim's interests were not given any attention or consideration. Accordingly, the ensuing decision was flawed.
- The letter dated July 26, 2015 contained pertinent factual errors that appeared to have escaped the attention of the lower Court. The said letter was in respect of a deceased person named Pius Musa Kibanya, and therefore required correction to reflect the realities of the facts of the lower court case that the Director of Public Prosecutions sought to terminate.
- That the file be remitted to the Chief Magistrate's Court for hearing and disposal on the merits.
- That the suspect be re-arrested and presented before the lower Court for the due process of the law to take its course as to his trial to its logical conclusion.
|| Advocate awarded Kshs 3 million for unlawful arrest while representing a client
Mohamed Feisal& 19 othsers v Henry Kandie, Chief Inspector of Police, OCS, Ongata Rongai Police Station & 7 others; National Police Service Commission & another (Interested Party)  eKLR
Constitutional Petition No. 14 of 2017
High Court at Kajiado
R Nyakundi, J
December 20, 2018.
Reported By Kakai Toili
Criminal Law-arrests and detention-exercise of the power to arrest by police officers-what were the circumstances in which police officers could exercise their power to arrest-what were the factors to be considered in determining a false arrest-what were the factors to be considered by police officers before arresting a person for a cognizable offence-what were the circumstances in which an advocate representing a client at the police station could be arrested-Constitution of Kenya, 2010 article 27; Criminal Procedure Code, section 29; National Police Service Act, section 58; Penal Code, section 182
Constitutional Law-constitutional petitions-institution of constitutional petitions-requirements-where one instituted a constitutional petition on behalf of others-what were the requirements for one to institute a constitutional petition on behalf of others-Constitution of Kenya, 2010, article 3(1) & 22(2) (b)
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms- right to freedom and security of the person-denial of the right to freedom and security of the person-administrative detention- what were the requirements to be fulfilled before administrative detention could be allowed-Constitution of Kenya, 2010, article, 28; Criminal Procedure Code, section 36; International Covenant on Civil and Political Rights, article 9
Evidence Law-standard of proof-standard of proof for unlawful arrest-factors to be considered-what were the factors required to prove wrongful arrests
Damages-nature of damages-unlawful arrest and detention-what was the nature of damages for unlawful arrest and detention
Constitutional Law-fundamental rights and freedoms-rights of arrested persons-constitutionality threshold of an offence when it came to arrests-what were the key elements of constitutionality threshold of an offence when it came to arrests
On the evening of June 4, 2016 at around 9.00pm, the 1st to 19th petitioners were arrested in Ongata Rongai town. They alleged that upon their arrest they were bundled into a police vehicle and threatened by the 3rd, 4th and 5th respondents against making any phone calls. It was alleged that the 1st and 2nd petitioners defied that order and called the 20th petitioner, an advocate of the High Court to come to their aid. The petitioners contended that they were held by the respondents in the police vehicle from the time of their arrest until 12:20 am on the following day when they were taken to Ongata Rongai police station, booked in for the offence of being idle and disorderly and placed in custody without being informed of the reasons for their arrest.
It was averred that the 20th petitioner at Ongata Rongai police station pressed the officers on the reasons for the arrest of the other petitioners while trying to explain to the officers the rights of arrested persons. He was however arrested on the charge of creating disturbance in a police station. The 1st to 19th petitioners were released unconditionally with no charge being preferred against them. The 20th petitioner on the other hand was released on a cash bail. Aggrieved by the respondents’ actions the petitioners filed the instant petition. The petitioners claimed that by unlawfully arresting and detaining them, the respondents breached their fundamental rights and freedoms guaranteed by the Constitution.
- What were the circumstances in which an advocate representing a client at a police station could be arrested?
- What were the requirements for one to institute a constitutional petition on behalf of others?
- What were the requirements to be fulfilled before administrative detention could be allowed?
- What were the factors required to prove wrongful arrest?
- What was the nature of damages to be awarded for unlawful arrest and detention?
- What were the circumstances in which police officers could exercise their power to arrest?
- What were the factors to be considered in determining a false arrest?
- What were the factors to be considered by police officers before arresting a person for a cognizable offence?
- What were the key elements of constitutionality threshold of an offence when it came to arrests?
Relevant Provisions of the Law
Constitution of Kenya, 2010
(1) Every person has the right to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights has been denied. violated or infringed, or is threatened.
(2) In addition to a person acting in their own interest, court proceedings under clause may be instituted by –
A person acting on behalf of another person who cannot act in their own name;
A person acting as a member of, or in the interest of a group or class of persons;
A person acting in the public interest; or
An Association acting in the interest of one or more of its members.’
Article 49 - Rights of Arrested Persons
(1) An arrested person has the right—
(a)to be informed promptly, in language that the person understands, of (i) the reason for the arrest; (ii) the right to remain silent; and (iii) the consequences of not remaining silent;
(b)to remain silent;
(c)to communicate with an advocate, and other persons whose assistance is necessary;
(d)not to be compelled to make any confession or admission that could be used in evidence against the person;
(e)to be held separately from persons who are serving a sentence;
(f) to be brought before a court as soon as reasonably possible, but not later than—
(i) twenty-four hours after being arrested; or (ii) if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day;
(g)at the first court appearance, to be charged or informed of the reason for the detention continuing, or to be released; and
(h)to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
(2) A person shall not be remanded in custody for an offence if the offence
Section 182 - Idle and disorderly persons
The following persons—
(a) every common prostitute behaving in a disorderly or indecent manner in any public place;
(b) every person causing, procuring or encouraging any person to beg or gather alms;
(c) deleted by Act No. 61 of 1968, s. 22;
(d) every person who publicly conducts himself in a manner likely to cause a breach of the peace;
(e) every person who without lawful excuse publicly does any indecent act;
(f) every person who in any public place solicits for immoral purposes;
(g) deleted by Act No. 61 of 1968, s. 22,
shall be deemed idle and disorderly persons, and are guilty of a misdemeanour and are liable for the first offence to imprisonment for one month or to a fine not exceeding one hundred shillings, or to both and for every subsequent offence to imprisonment for one year.
Criminal Procedure Code
Section 29 - Arrest by police officer without warrant
A police officer may, without an order from a magistrate and without a warrant, arrest—
(a) any person whom he suspects upon reasonable grounds of having committed a cognizable offence;
(b) any person who commits a breach of the peace in his presence;
(g) any person whom he finds in a street or public place during the hours of darkness and whom he suspects upon reasonable grounds of being there for an illegal or disorderly purpose, or who is unable to give a satisfactory account of himself;
Section 36 - Detention of persons arrested without warrant
When a person has been taken into custody without a warrant for an offence other than murder, treason, robbery with violence and attempted robbery with violence the officer in charge of the police station to which the person has been brought may in any case and shall, if it does not appear practicable to bring that person before an appropriate subordinate court within twenty-four hours after he has been so taken into custody, inquire into the case, and, unless the offence appears to the officer to be of a serious nature, release the person on his executing a bond, with or without sureties, for a reasonable amount to appear before a subordinate court at a time and place to be named in the bond, but where a person is retained in custody he shall be brought before a subordinate court as soon as practicable:
Provided that an officer in charge of a police station may release a person arrested on suspicion on a charge of committing an offence, when, after due police inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed with the charge.
National Police Service Act
Section 58 - Power to arrest without a warrant
Subject to Article 49 of the Constitution, a police officer may without a warrant, arrest a person—
(c) whom the police officer suspects on reasonable grounds of having committed a cognizable offence;
(d) who commits a breach of the peace in the presence of the police officer;
International Covenant on Civil and Political Rights
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
- When considering whether a party had locus standi, courts generally took a liberalized approach especially in matters related to the upholding of the bill of rights. All the petitioners had to do was bring themselves within the umbrella of article 22(2)(b) of the Constitution. By virtue of the Authority to Represent that was signed by all the relevant petitioners, the 1st, 2nd and 20th petitioners were acting on behalf of a group of persons as envisioned under article 22(2)(b) of the Constitution. In addition according to article (3) (1) of the Constitution every person had an obligation to respect, uphold and defend the Constitution.
- The great mass of the Kenyan society were not educated or aware of their legal rights. They were of different class of people, lacked proper knowledge, poverty and disadvantaged towards enforcement of their infringed rights. The power to open the litigation space permitting any member of society to be at liberty to approach a constitutional court to articulate the infringement or violation of a right or rights was underpinned in the supremacy of the Constitution. The petitioners had the locus standi to institute the petition and the petition had been brought properly before the Court.
- The existence of the power to arrest was one thing; the justification for the exercise of it was quite another thing. The law demanded that whenever an arrest was made, the accused person had a right to be informed not only that he was being arrested but also of the reasons or grounds for the arrest. Thus the police officer had to be able to justify the arrest apart from his power to do so. He did that by communicating to the arrested person the full particulars of the offence for which he was arrested or other grounds for such arrest at the time of the arrest. Thus it was incumbent upon those who deprived other persons of liberty in the discharge of what they conceived to be their duty to strictly and scrupulously observe the forms and rules of law. No arrest should be made by a police officer without a reasonable satisfaction reached after some investigation as to the geniuses and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest.
- The prohibition of arbitrary detention in article 9(1)of the International Covenant on Civil and Political Rights (ICCPR) acknowledged that administrative detention would occasionally be permissible in order to achieve particular aims. However, owing to the importance of the right to liberty, any restriction had to be necessary to achieve a particular legitimate aim and the degree to which the right to liberty was infringed had to be proportionate to achieving that aim. That involved consideration of whether there were less evasive means of achieving the same aim. The detention of an individual was justified only as a last resort where other, less severe measures had been considered and found to be insufficient to safeguard the end or public interest which could require that the person concerned be detained.
- The protection of individuals from arbitrary punishment and abrogation of rights was one of the central purposes incumbent upon judicial process. Wrongful arrest involved deprivation of a person’s liberty; it consisted of arresting and holding a person without legal justification. Thus liability thereof was strict, a party needed not show that the person causing the arrest was at fault or that he was aware that the arrest was wrongful. It was one that fell under action injuriam, and so proof of damage was not necessary to support the action.
- Even if no pecuniary damage had been suffered, the court would not award a contemptuous figure for the infringement of the right to liberty. Damages for unlawful arrest and detention should be exemplary and punitive in order to deter would-be offenders. The petitioners only needed to prove that the arrest or detention was illegal which they did in the instant case. They did not have to prove that the respondents had intention to act illegally or to cause harm. In order to establish the lawfulness of an arrest without a warrant, the onus of proof resided with the respondents to show probable cause or reasonable suspicion.
- In exercising the power to arrest, he had to act as an ordinary honest man would act on suspicions which had a reasonable basis and not merely on wild suspicion. However, the suspicion needed not be a matter of certainty or even probability, it had to not at the other extreme, be vague, remote or tenuous. It was a question of a feasibility possibility, a matter of likelihood. An arrest of a suspect should not be made unless and until his or her case had been investigated with sufficient evidence requiring an answer on the complaint. The starting point for the investigating officer was not to depart from the enforcement of a right to a fair hearing and due process.
- Being a criminal offence both mens rea and actus reus were in issue to be proved by the State. Gone were the days when the marginalised members of the society were bundled into police cells under that rubric of offences, incapable of constituting any criminal elements. One wondered the sustainability of the offence of being idle and disorderly in Kenya’s statute books. That was save for being a fertile provision for the police to use it as a tool to infringe and or violate the right to equality and non-discrimination under article 27 of the Constitution. None of the middle income or economically advantaged class of the society found him or herself being arrested or indicted with those kind of offences.
- The Court was not told what disorderly conduct any of the nineteen petitioners was involved in contravention of section 182 of the Penal Code to warrant arrest and detention. The occurrence book extract relied upon by the respondents to justify their action remained vague and ambiguous as to which specific provision of the idle and disorderly offence was breached by the petitioners. The fact that the petitioners were found moving or, standing, or seated, in or in an open area near a road or premises within Ongata Rongai Township was no answer to the action taken by the arresting officers. The law concerned with arrest and detention especially in relation to the instant case could be found in the Criminal Procedure Code as well as the National Police Service Act.
- False arrest which was a civil wrong consisted of an unlawful restraint of an individual’s personal liberty or freedom of movement by another person purporting to act according to the law. The term false arrest was sometimes used interchangeably with the tort of false imprisonment and a false arrest was one method of committing a false imprisonment. A false arrest had to be perpetuated by one who asserted that he or she was acting pursuant to legal authority, whereas a false imprisonment was any unlawful confinement. Thus, where a police officer arrested a person without probable cause or reasonable basis, the officer was said to have committed a tort of false arrest and confinement. Thus, false imprisonment could be defined as an act which causes the unlawful confinement.
- A determination on whether or not there was false imprisonment was predicated on the circumstances of each case. For the arrests of the petitioners to be deemed as lawful, the arrests were to be for a cognizable offence and that the respondents had reasonable grounds to believe the petitioners had committed such offence.
- Reasonable and probable cause was an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which assuming them to be true, would reasonably lead an ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed.
- No explanation was offered as to the prevailing circumstances that led the respondents to believe the 1st to 19th petitioners had committed the offence of being idle and disorderly. The Occurrence Book booking did no better in shedding light on the mysterious circumstances. All that was offered by way of explanation was that the respondents were within their powers conferred under section 29 of the Criminal Procedure Code and section 58 of the National Police Service Act. While the 1st to 19th petitioners could have been arrested on suspicion of committing a cognizable offence, those arrests were not made by police officers acting with reasonable cause.
- In a constitutional democracy like Kenya’s it was imperative for citizens to have confidence and trust in the institutions established to safeguard the rule of law. Citizens expected police officers in going about their duties to be fair, transparent and accountable in executing duties on behalf of the State. That meant that chapter four of the Constitution should at every juncture be the guiding light when effecting arrest and detention of suspects alleged to have committed cognizable offences.
- The key elements of constitutionality threshold of an offence when it came to arrests were;
- the offence had to be materially connected to its objective and not to be arbitrary, unfair or based on irrational considerations,
- the offence, even if rationally connected to the objective, should impair as little as possible the right or freedom in question; and
- there had to be proportionality between the effects of the offence which were responsible for limiting the right or freedom and the objective which had been identified as of sufficient importance to warrant overriding of a constitutionally protected right.
- One of the ingredients of the rule of law was certainty of law. The most focused deprivations of individual interest in life, liberty or property had to be accompanied by sufficient procedural safeguards that ensured certainty and regularity of law. That was a vision and a value recognized by Kenya’s Constitution and it was an important pillar of the rule of law. Enforcing the law and maintaining public order had to always be compatible with respect for the human person. Under article 73(a) and (b) of the Constitution that authority assigned to a State officer was a public trust. It was to be exercised in a manner that was consistent with the purposes and objects of the Constitution, demonstrated respect for the people, brought honour to the nation and dignity to the office, promoted public confidence in the integrity of the office and vested in the State office the responsibility to serve the people, rather than the power to rule them. That was the yardstick that police officers were meant to achieve in exercising their powers under the National Police Service Act and the Criminal Procedure Code. To arrest, detain or investigate had to be carried out within constitutionally permissible parameters.
- Any system of law which kept in mind the constitutional provisions had to ask the fundamental question whether in order to fight crime it was necessary to derogate from the bill of rights entitlements by denying a suspect of misdemeanours right to liberty, freedom, dignity, equality, freedom from torture, degrading and inhuman treatment. The act of apprehending a person without notice, even if it was for a short period, had far reaching effect on his or her rights to human dignity. Being on suspicion, the right to liberty and security of person under article 29 of the Constitution should not be interfered with arbitrarily to confine the individual to a police station or detention facility. Furthermore the maxim innocent until proven guilty was one of Kenya’s key pillars in the administration of criminal justice. That principle applied to all criminal law litigation.
- Reasonableness and rationality of the decision to arrest where deprivation of individual liberty of a person was concerned should be consistent with the Constitution and international standards in upholding the rights of the individual. The rights of the petitioners to be released on bail, being given reasons for their arrest in the legal sense under section 182 of the Penal Code, right to communicate with counsel upon arrest were not adequately addressed by the respondents.
- Administratively the officer in charge had the responsibility to make a final decision on the arrested persons. It was absurd that important human rights like the liberty of a person once taken away arbitrarily had to await the availability of a single officer to determine whether he or she should enjoy that right or not. There were no simple solutions to institutions but to enhance accountability and prevent an abuse of the administrative process the features of article 10 of the Constitution should be the key driving authority in the decision making process at the police stations. It was clear that both under the Constitution and Kenya’s statutory framework, an individual right to liberty could not be just taken away without a just cause.
- The 20th petitioner, who was an advocate, was charged with a cognizable offence. It was expected that an advocate should be zealous in defending the rights of his clients. As such it was unlikely that while at the station, the 20th petitioner was mollycoddling the respondents. It was ludicrous that the respondents would seek to paint a picture of the 20th respondent as a drunk who was causing a raucous at a police station without offering an iota of evidence in support of such a claim. The arrest of the 20th petitioner was occasioned by his spirited defence of his clients.
- In exercising statutory powers of arrest the respondents had to act reasonably and should not be oppressive or punitive under the guise that the petitioner was obstructing lawful execution of their duties. In light of the overall constitutional obligations cast upon members of the legal profession and in the circumstances of the instant petition, rules of police station protocol should not negate the realization of the right to legal representation to arrested persons. Only legal counsel had the knack to agitate the rights of accused persons by applying the law to the facts of the case, whether at the police station or courtroom setup.
- Impairing the rights of accused persons made a mockery of the principles laid down in the Constitution. For a lawyer who had found himself at a police station for the sole purpose of representing his or her client, the arrest and detention was not an option. However, in the event he committed an offence within the precincts of the police station, the arrest and detention should be a measure of last resort. Given the circumstances of the Kenyan society where the poor, vulnerable, weak and illiterate presumably found themselves in breach of the law legal assistance at both pre-trial or during trial had to be provided to ensure that there was no failure of justice in the process.
- The 20th petitioner upon arrest was entitled to legal representation. It was in vain to say that the petitioner’s clash with the respondents would accord him a fair hearing. That objective was attainable by inquiring whether the 20th petitioner wanted to exercise his right to be represented by counsel. The respondents failed the Constitution in failing to ensure observance and effective protection of article 49 of the Constitution. The arrest and detention of the petitioners was actuated without a reasonable basis and was thus unlawful.
- In essence, due process, substantive justice and the exercise of jurisdiction were a function of precise legal and factual claims. However, precision was not coterminous with exactitude. Although precision had to remain a requirement as it was important, it demanded neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. The whole function of pleadings, hearings, submissions and judicial decision was to define issues in litigation and adjudication, and to demand exactitude ex ante was to miss the point.
- The burden of proving violation or threat of violation was upon the petitioners. The petitioners had to patently express the manner in which the respondents had violated their rights. The pleadings and submissions of the petitioners sought redress for violation of their rights under articles 25, 27, 28, 29, 39, 40, 49, 50 and 51 of the Constitution.
- The arrests of the petitioners were in contravention of article 29(1) of the Constitution which protected the petitioners from being deprived of their freedom without just cause. Similarly, the detention deprived the petitioners of their freedom of movement guaranteed under article 39(1) of the Constitution. Additionally, the actions of the police officers were discriminatory in nature against the 1st to 19th petitioners contrary to article 27(4) of the Constitution.
- The 1st to 19th petitioners were held for about three hours in the back of a police vehicle. Given the size of the average police land cruiser, the conditions had to have been at the very least substantially uncomfortable and cruel. Sitting at the back of a police vehicle for such a long period of time while not knowing the reason for your arrest, being booked into a police station and thrown in the cells without being informed of the reason for your arrest and being denied an audience with an advocate constituted violation of the right to inherent human dignity, freedom from torture, and cruel, inhuman and degrading treatment or punishment, freedom and security of the person and equality and freedom from discrimination under articles 25(a), 27(1), 28 and 29 of the Constitution.
- The respondents’ reason for arresting the 20th petitioner was unconvincing. They did not put forth any evidence in support of their notion that the 20th petitioner was drunk. That was a mere excuse to cover up for the misdeeds of the officers. By arresting the 20th petitioner in the course of conducting his duties without any reasonable cause, the respondents not only violated his rights but also the rights of his clients to legal representation.
- In the absence of an alternative explanation by the respondents, the petitioners’ rights under article 49 of the Constitution were violated on account of them not being informed of the reason for their arrest. The unlawful arrest of the 20th petitioner as he had gone to the aid of his clients deprived them of their constitutional right to legal representation of their choice as guaranteed by article 49 (c).
- The 20th petitioner was granted a cash bail at the police station and subsequently charged at a subordinate court. Matters concerning bail and bond at the Subordinate Court were not within the purview of the instant Court. As such the 20th petitioner ought to raise the said issue in the appropriate forum. Therefore, the petitioners ought not to have been detained in custody in the first place for the alleged offences. As such, their rights under article 49(2) of the Constitution were further violated.
- The treatment accorded to the petitioners with effect from 9.00pm until their release the following day without charge was an emotional and psycho traumatic experience which would be a dark stain in their personal profile. The action by the respondents under section 182 of the Penal Code was offensive and arbitrary deserving both compensatory and exemplary damages.
- The Court was not told why article 49(2) of the Constitution did not apply to the petitioners, either to release them immediately on surety recognizance or cash bail. There was no justification in law for them to spend a night at the police station. There was no mention of any complaint made by some member of the public or such other person at the time of arrest and subsequent detention at the police station. The arrest and detention of any suspect was generally considered an upfront or an infringement of the right to liberty and freedom of the person under article 29 of the Constitution, inherent right to human dignity in article 28 of the Constitution, right to privacy under article 31 of the Constitution and the right to equality and freedom from discrimination in article 27 of the Constitution. The burden of proof was on the respondents to justify reasonable cause which necessitated the arrest on any of the elements of the law expressly stated in section 182 of the Penal Code.
- The rationale of restricting the 20th petitioner from providing legal services to his clients in custody never met the minimum legal threshold. The conduct by the respondents betrayed the very values and principles of article 10 of the Constitution. The Court had to come out strongly against arbitrary and inequitable use of police power on innocent citizens. Sometimes loss of self-esteem and reputation associated with the aftermath of such conduct could not be compensated by way of damages. However, that was the approach the law took to punish wrong doers to serve as a preventive measure for future unlawful conduct and also to give fair compensation to the victims for the violation or infringement of their rights.
- Where a petitioner was entitled to compensation for a violation of his constitutional rights by the State, such compensation ought to be both general and exemplary or punitive in nature. That was so because such an award was meant to vindicate the violation of the petitioners’ rights and deter future infringements. In light of the violations occasioned by the respondents on the petitioners’ rights, the petitioners were entitled to general exemplary damages in addition to a declaration on the violation of their constitutional rights.
- The respondents found jointly and severally liable for the infringement of the constitutional rights of the petitioners.
- The actions of the police officers declared to have contravened the petitioner’s rights and freedoms under articles 25, 27, 28, 29, 39 and 49 of the Constitution.
- The 1st to 19th petitioners awarded Ksh. 100,000/- general damages together a similar amount to cater for exemplary damages. The 20th petitioner awarded a global sum of Ksh. 3 million for both general and aggravated damages.
- The petition was also allowed in terms of the declarations in prayer no. (a), (b), (c), (e) and (f).
- The quantum of damages to attract interest at court rates from the date of the judgment until payment in full.
- Costs of the suit to be borne by the respondents.
||The High Court recommends a review of the Sexual Offences Act to create a section to deal with consensual/mutual sexual activities among children and a special system to handle such cases.
SNN v Republic
Criminal Revision 104 of 2018
High Court at Nyeri
TM Matheka, J
January 25, 2019
Reported by Mathenge Mukundi
Constitutional Law-fundamental rights and freedoms-equality and freedom from discrimination-claim of discrimination on grounds of sex-whether an accused person could be said to have been discriminated for being charged alone for the offence of defilement where the two were minors at the time the alleged criminal act happened-Constitution of Kenya 2010, article 27 (4).
Criminal Law-criminal responsibility-age of criminal responsibility-whether the applicant, being a minor, was criminally capable and could stand the trial where his age was not assessed-Penal Code, (Cap 63), section 14.
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 High Court could exercise its revisionary powers on proceedings which were at a preliminary stage-Criminal Procedure Code (Cap 75), sections 362, 364 & 367.
The accused person was facing the charge of attempted defilement with the alternative charge of committing an indecent act with a child. According to the attached certificate of birth the subject was 16 years old at the time of the alleged offence while the victim was 6 years of age. The applicant’s counsel argued that since both the accused person and the victim were minors, bringing the charges against the accused amounted to discrimination on the basis of sex contrary to article 27 (4) of the Constitution and article 2(5) of the United Nations Convention on the Rights of the Child which prohibited discrimination on the basis of sex. That any continued prosecution of the accused person was discriminatory and denied him the equal protection of the law.
- Whether an accused person could be said to have been discriminated for being charged alone for the offence of defilement where the two were minors involved at the time the alleged offence happened.
- Whether an accused person, being a minor, was criminally capable and could stand the trial where his age was not assessed as provided for under section 143(1) of the Children Act.
- Whether the High Court could exercise its revisionary powers on proceedings which were at a preliminary stage.Read More...
Relevant Provision of the Law:
Constitution of Kenya 2010;
Article 27 (4);
The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
Penal Code Cap 63;
(1) A person under the age of eight years is not criminally responsible for any act or omission.
(2) A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.
(3) A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.
Children Act, No 8 of 2001;
Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that such person is under eighteen years of age, the Court shall make due inquiry as to the age of that person and for that purpose shall take such evidence, including medical evidence, as it may require, but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of the person so brought before it shall, for the purposes of this Act and of all proceedings thereunder, be deemed to be the true age of the person.
- It was not contested that the victim was 6 years of age and according to section 14 (1) of the Penal Code she could not be criminally liable. Therefore, she could not be charged alongside the applicant and leaving her out could not be said to be discriminative. There was no express or implied requirement that when two children were involved in sexual activity with each other, both of them should be charged with the offence of defilement. However, there was no legal bar to the prosecution preferring criminal charges against both children. In effect, if the prosecution had reasonable cause to charge both minors, they could do so.
- The intentions of the Sexual Offences Act were to protect everyone from sexual violence and in particular the vulnerable members of the society who included children. However, the Act appeared to have overlooked the fact that children could involve themselves in various forms of sexual activity at different developmental stages, and that there was a need to provide for that.
- Every sexual infraction that was committed by children and whose facts brought it within the Sexual Offences Act was dealt within the ambits of criminal law. Courts had struggled with efforts to have children who were of same age group and who indulged in consensual sexual activity treated as children in need of care and protection. The question as to whether sexual crimes committed by children should be dealt with in the same way as sexual crimes committed by adults needed to be dealt with through substantive review of the Sexual Offences Act to create a section that spoke to sexual activities among children who had to be protected from others and from themselves as well.
- The charge sheet indicated the apparent age of the accused as juvenile and the lower Court throughout the proceedings had been treating the accused as a minor and even ordered for his custody at a juvenile home. On January 12, 2018, the lower Court noted that the accused was a student and gave him a personal bond of Kshs. 50,000/-. On February 26, 2018 when the matter came up for hearing, the prosecution indicated that the accused was a minor and sought for directions on him being represented by counsel. The Court consequently allowed a counsel to come on record for the accused. The entire conduct of the trial Court in relation to the applicant indicated that the lower Court was actually persuaded that the applicant was a minor. The record however did not indicate that the accused’s age was determined. The non-compliance with section 143 (1) of the Children Act did not occasion injustice to the minor.
- The revisionary powers of a High Court were very wide. Such powers were intended to be used by the High Court to decide all questions as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed by a subordinate criminal court and even as to the regularity of any proceeding of any subordinate court. The object of conferring such powers on the High Court was to clothe the court with a jurisdiction of general supervision and superintendence in order to correct grave failure or miscarriage of justice arising from erroneous or defective orders. Section 364 (1) (a) of the Criminal Procedure Code conferred on the High Court with all the powers of an appellate court. The revisionary powers were entirely discretionary and there was no a vested right of revision in the same sense as there was a vested right of appeal. The sections did not create any right in the litigant, but only conserved the powers of the High Court to see that justice was done in accordance with the recognized rules of criminal jurisprudence and that subordinate criminal courts did not exceed their jurisdiction, or abuse the powers vested in them by the Criminal Procedure Code.
- In the instant revision, the proceedings were at a preliminary stage as only one hearing had taken place. The Court would allow the proceedings at the lower Court to continue subject to the lower Court conducting an inquiry on the age of the accused before the hearing starts. The objections to the charges facing the applicant were unsustainable and there was nothing to revise at that stage. The matter was to be returned to the lower Court for hearing and determination.
Complete obscurity of identity of witnesses and failure to disclose their identity to accused persons was not a detraction from the right to fair trial
Republic v Doyo Galgalo & 3 others
Criminal Case No. 16 of 2019
High Court at Meru
February 26, 2019
Reported by Eunice Chelimo
Constitutional Law-fundamental rights and freedoms-right to fair trial-limitation to right to fair trial-witness protection-basis for witness protection-rationale and purpose for witness protection-whether complete obscurity of the identity of the witnesses and failure to disclose their identity to accused persons was detraction from the right to fair trial -witness protection measures- whether the measures taken were necessary in light of an objectively justifiable risk and was proportionate to the rights of the accused-Constitution, 2010, article 50(8) & (9); Witness Protection Act, section 4 (3).
Jurisdiction-jurisdiction of the High Court-power of the High Court to make a witness protection order-factors to take into consideration before making a witness protection order- where it was claimed that the accused persons were of great influence in their community-where the 1st accused person was an elder in their community and wielded great influence-Witness Protection Act, section 16.
The court made protection orders on February 21, 2019 and allowed six witnesses to testify in camera or closed sessions and to use pseudo names and redaction of statements. The Witness Protection Agency provided a protection box in court which was to ensure the identity of the witnesses was fully obscured. After hearing one witness in camera, the 1st, 2nd and 4th accused persons made an oral application seeking that the identity of witnesses under witness protection program be disclosed to them. Arguing among others that complete obscurity of the identity of the witnesses and failure to disclose their identity was a detraction from the right to fair trial, that they were denied an opportunity to observe the demeanour of the witnesses, that the protection should not include hiding the identity of witnesses to them.
The DPP opposed the application and relied on article 50 (8) of the Constitution which allowed protection of witnesses in need of protection for being vulnerable, arguing that the reason for placing the witnesses under witness protection program was because the witnesses were under threat from the members of the community as well as the accused persons.
- Whether complete obscurity of the identity of the witnesses and failure to disclose their identity to accused persons was detraction from the right to fair trial.
- What was the rationale and purpose of witness protection?
- What factors should a court take into consideration before making a witness protection order? Read More...
Relevant provisions of the Law:
(8) This Article does not prevent the exclusion of the press or other members of the public from any proceedings if the exclusion is necessary, in a free and democratic society, to protect witnesses or vulnerable persons, morality, public order or national security.
(9) Parliament shall enact legislation providing for the protection, rights and welfare of victims of offences.
Witness Protection Act;
Section 4 (3);
(3) The Agency may request the courts, in support of the programme, to implement protection measures during court proceedings which measures may include but not be limited to—
(a) holding in camera or closed sessions;
(b) the use of pseudonyms;
(c) the reduction of identifying information;
(d) the use of video link; or
(e) employing measures to obscure or distort the identity of the witness.”
“The High Court may make a witness protection order if it is satisfied that-
(a) the person named in the application as a witness-
(i) was a witness to or has knowledge of an offence and is or has been a witness in criminal proceedings relating to the offence; or
(ii) is a person who, because of his relationship to or association with a person to whom subparagraph (i) applies, may require protection or other assistance under this Act;
(b) the life or safety of the person may be endangered as a result of his being a witness;
(c) a memorandum of understanding has been entered into by the witness in accordance with section 7; and
(d) the person is likely to comply with the memorandum of understanding.”
- Protection of witnesses was no longer a matter of statutory expressions only, it derived from the Constitution. Exclusion of the press or other members of the public from a hearing was permissible under article 50(8) of the Constitution if the exclusion was necessary, in a free and democratic society, to protect witnesses or vulnerable persons, morality, public order or national security.
- The Constitution under article 50(9) conferred power upon Parliament to enact legislation to provide protection, rights and welfare of victims of offences. That was a milestone and relevant to the subject under discussion since victims would also be witnesses.
- The constitutional foundations of witness protection could not be questioned. The purpose of witness protection was not only to protect the witnesses but to ensure due administration of justice to all which was a tenet of justice in a society governed by the rule of law. Notably, the restrictions that would be imposed by the need for protection of witnesses and victims fell under article 50 on fair hearing. Accordingly, it was not defensible to state as a general proposition that witness protection was detraction from fair trial.
- Witness Protection Act (the Act) was the substantive statutory law on witness protection as stated in the preamble. According to section 4 (3) of the Act, the Witness Protection Agency (the Agency) could request courts to implement protection measures during court proceedings which measures would include holding court proceedings in cameraor closed sessions.
- The High Court had the power to make a witness protection order by taking into consideration certain factors which were stated in section 16 of the Act.
- The redacting of witness statements to exclude the witnesses' personal details such as the name, address and other personal particulars did not amount to a contravention of the provisions of article 50(2)(j) of the Constitution. The accused persons would have the substance of the evidence to be adduced at the trial which was the tenet of protection accorded by article 50(2)(j) of the Constitution. As to the use of pseudonyms during the trial, it did not in any way, violate the provisions of article 50 of the Constitution.
- One of the major considerations in granting protection order was where the life or safety of the person may be endangered as a result of his being a witness.Therefore, protection of witnesses entailed, inter alia, safety of the witness. From the prescriptions of and words used in the Constitution and the law, if the concealing of the identity of a witness was necessary, in a free and democratic society, to protect witnesses or vulnerable persons, it was a justifiable measure, and therefore, not a violation of the right to fair trial. The prosecution had maintained that the very reason for placing those witnesses under protection was to protect them from harm by the accused and the members of their community.
- The matter was weighty and it was not lost to the Court the security situation amongst communities living within the scene of crime. Consequently, protective measures such as those granted including obscurity of witness identity by testifying inside a protection box fit the exceptional circumstances of the case. The assessment of the type of protection measure that should be accorded to a witness was done on a case-by-case basis taking into account whether the measure was necessary in light of an objectively justifiable risk and was proportionate to the rights of the accused, since accused persons also had rights including right to know the person making the accusation or testifying against them.
- On the basis of the assessment done by the Agency and the safety need of the witnesses, in light of the security situation at home, there were exceptional circumstances which required an individualized consideration of risk from the members of the Borana Community as well as the accused persons themselves who were said to be of great influence in the Borana community. Therefore, the fact of the security situation in a particular area such as Marsabit where inter clan conflicts were frequent and deadly was a pertinent consideration in relation to the circumstances of the witnesses and case. Accordingly, it was not far-fetched to state that the life or safety of the person would be endangered as a result of his being a witness.
- Even in international law, especially the Rome statute, safety of witnesses had been declared to be justifiable cause to conceal the identity of witnesses. The security situation of the witnesses and where they come from had been given appropriate proportion of importance in determining the scope and nature of witness protection required.
- The safety of such persons as well as those related to them was an important consideration. Disclosing the identities of the witnesses to the accused persons would be compromising their safety as well as of those related to them.
- Council of Elders took the initiative of bringing peace and harmony among the clan members. Genuine and honest initiatives of that kind were welcome. However, if it was aimed at compromising the murder case or persuading or appeasing the family to compromise the case, such became an instance of interference with witnesses and evidence in the case and was a grave matter of perversion of justice. The 1st accused person was an elder in the Borana community and wielded great influence. Therefore, possibility of use of influence by him to interfere with witnesses through the elders was high. Further, the accused persons were from the same community with the victim families. And in light of the manner the crime was executed, the family would be intimidated by the presence of the accused persons.
- In the circumstances of the case, obscurity of the identity of the witness was necessary and justifiable measure of protection of witnesses, in a free and democratic society such as Kenya. The measure did not violate article 50 of the Constitution. The accused persons’ right to cross examine had not been limited and it was fully exercised during the hearing of the first witness.
Application dismissed with order as to costs.
||A loan agreement is a distinct legal obligation which is independent of an employment contract
Jim Kennedy Kiriro Njeru v Equity Bank (K) Limited
Civil Suit 47 of 2018
(Formerly Kajiado ELC Civil Suit No 673 of 2017)
High Court at Kajiado
R Nyakundi, J
March 1, 2019
Reported by Ian Kiptoo
Land Law-mortgages and charges-interest chargeable-where a chargor was an employee of a chargee-where employment conferred an advantage of lower interest rate of 5%-where a clause stated that the interest rate chargeable would revert to commercial rate once employment ceased-whether a loan agreement made between a bank, being an employer, and a borrower, being the employee, was dependent on an employment contract in regards to rate of chargeable interest
Land Law-mortgages and charges-statutory power of sale-where rate of interest was in dispute-whether a dispute touching on amount payable or chargeable interest in a loan agreement was a restraint on a chargee from exercising its statutory power of sale-whether a dispute involving interest rate chargeable exempted a borrower from paying the principal amount of a loan facility-Land Act, sections 90 and 96
The plaintiff sought temporary injunction orders restraining the defendant from selling or advertising for sale by way of private treaty or by public action the suit property. The plaintiff was a former employee of the defendant whose employment was terminated by the defendant. Subsequent to the termination, the plaintiff together with other colleagues instituted a suit in the Employment and Labour Relations Court (ELC) at Nairobi where the Court ordered that the loan facilities taken out by the plaintiff and his colleagues would suffer immensely if the loans were converted to commercial rates.
The plaintiff’s main ground was that despite the pendency of suit, the defendant had ignored and/or disregarded the Employment and Labour Relations Court ruling directing it to accord to the plaintiff all the benefits of an employee, and in particular, the defendant had converted the interest rate of his loan to a commercial one and was now subjected to an interest rate of 18% as opposed to the staff rate of 5% making it difficult for the plaintiff to continue servicing the loan as he was still unemployed.
- Whether a loan agreement made between a bank, being an employer, and a borrower, being the employee, was dependent on an employment contract in regards to rate of chargeable interest.
- Whether a dispute touching on amount payable or chargeable interest in a loan agreement was a restraint on a chargee from exercising its statutory power of sale.
- Whether a dispute involving interest rate chargeable exempted a borrower from paying the principal amount of a loan facility.Read More..
- In applications for an interlocutory injunction, the burden resided with the applicant to prove to the satisfaction of the Court that the same should be granted. It was also noteworthy that an injunction was a discretionary remedy and was granted on the basis of evidence and sound legal principles. The principles for grant of temporary injunctions were well set out in the celebrated case of Giella v Cassman Brown and Company Limited.
- It was not in dispute that the plaintiff was an employee of the defendant bank until July 2, 2015 when the defendant bank terminated his contract. It was also not in dispute that the plaintiff obtained financial accommodation from the defendant bank vide a letter of offer dated June 13, 2011, amounting to Kshs 3,500,000/= at an interest rate of 5% per annum. The loan facility was secured by a legal charge over the suit property registered in the plaintiff’s name.
- The plaintiff’s contention was heavily anchored on the issue of interest payable. It was within the bank’s powers to convert the said interest rate of 5% to commercial rate pursuant to clause 4 of the charge dated June 13, 2011.Although the plaintiff obtained the loan facility during the course of employment to the defendant bank, a loan agreement was a distinct legal obligation which was independent of the employment.
- The role played by employment in the instant scenario was to confer an advantage by way of certain privileges to the plaintiff for instance the enjoyment of lower interest rate of 5% accorded to all employees of the defendant bank instead of them being subjected to commercial rates.
- The privileges as expressly stated under clause 4 of the Charge dated June 13, 2011 ended upon the employee’s departure from the employment. Thus the departure of the plaintiff from the Bank had a bearing only to the interest rate payable to the defendant bank and not the repayment of the principal amount.
- The question of interest rate was unambiguously dealt with in ELRC Cause No. 1430 of 2015 and the defendant bank was ordered to refrain from converting it to a commercial one unless or until the ELC suit had been heard and determined contrary to the defendant bank’s contention that no such orders were issued in the ruling. Therefore, if at all the Bank converted the said interest to commercial interest rate, the same was done with blatant disregard of the order of the Court and should be treated with contempt it deserved.
- In accordance with the already existing jurisprudence, a dispute touching on the amount payable or interest chargeable without more was not a ground for restraining a chargee from exercising its statutory power of sale. Circumstances in which a mortgagee or chargee could be restrained from exercising his statutory power of sale were set out
- There was no doubt that the plaintiff owed the defendant bank a substantial amount of money. A chargee could not be restrained from exercising its power of sale merely because there existed a dispute as to the amount owing or interest charged. However, the chargee could be restrained where the amount claimed was paid in court or was excessive and unconscionable, and or the interest charged was uncontractual or illegal.
- The existence of a dispute touching on the interest rate payable was not an excuse for non-repayment of the principal amount of the loan facility. Thus despite existence of a dispute on interest rate payable, the borrower should be able to continue repaying at least the principal amount of the loan facility pending the determination of the dispute on interest payable. Evidence that the borrower continued repayment of the loan facility or at least the principal amount or proof of his willingness to do so was paramount.
- Despite the fact that the issue of interest had been in dispute, it was not in dispute that the plaintiff defaulted repayment of the said financial accommodation. The fact that the Court in ELRC Cause No. 1430 of 2015 ordered the Bank not to convert the interest rate to a commercial one until the ELRC suit was heard and determined did not grant the plaintiff from continuing to repay the mortgage.
- It had been three years since the Court order was issued and it seemed the plaintiff had not made any effort to service the loan in question since no piece of evidence had been produced to that effect. The plaintiff, before challenging the issue of interest charged and or amount owing ought to have produced evidence before court to show that the principal amount of the loan advanced to him was repaid or he had been making an effort or signs of his willingness to regularize his loan account as required by the contract they entered into.
- Disputes as regards interest charged had to be seen as a subsidiary issue which could only be given enough attention where the chargor had honoured his obligations to repay the loan or where a chargor in default showed willingness to repay the outstanding amount of money owed to the lender. The same was not shown in the case.
- The parties entered into a loan contract which was dully and willfully executed by both parties. The said contract conferred rights and obligations to the parties which included the obligation borne by the plaintiff to repay the loan facility according to the terms of the contract. The defendant was also clothed with power of sale upon default of repayment of the loan facility by the plaintiff pursuant to section 90 and 96 of the Land Act, 2012.
- Nowhere, in the contract that the parties signed, was it expressly stated that incase of default, the monies which the plaintiff was claiming would be used to offset the loan facility. That was not to say it was wrong for the Bank to do so as an alternative to recover its monies from the borrower, but the plaintiff should not be allowed to the same as an excuse for not repaying the loan facility for the past three years as agreed upon in the loan agreement or at least making an effort or showing willingness to do so.
- The said claims advanced by the plaintiff had no bearing to the default and repayment of the loan amount as far as the loan agreement was concerned. Neither was the exact amount of the monies he was claiming were known which an issue was pending determination in the ELRC. The same could be used to hinder the defendant bank from recovering its loan amount as per the agreement they entered into.
- As much as it was important to preserve the plaintiff’s right to property pursuant to article 40 of the Constitution of Kenya, 2010. It was also of utmost importance that the interest and rights of the chargee or defendant bank to the mortgage in question had to be protected. The Court was alive to the fact that the plaintiff was likely to lose the suit property, which was his family home and his only source of livelihood. Since the suit property was given as security for the loan, it became a commodity for sale and it was therefore subject to sale in case of default in loan repayment in the event that the chargee decided to exercise its statutory power of sale pursuant to the provisions of section 90 and 96 of the Land Act, 2012.
- In absence of any effort from the plaintiff to rectify the default, the Court was not able to find that the plaintiff would suffer irreparable injury if the injunctive orders were not granted. On a balance of convenience, from the facts and materials presented, the balance tilted in favour of the defendant bank bearing in mind that the bank was in a business of selling money to earn some profit. Having established that the interests of the Bank were in imminent need of protection at that point, the Court was unable to agree with the plaintiff’s contention that he was more likely to suffer more inconvenience than the Bank if the injunction was disallowed.
- The plaintiff had failed to establish a prima facie case to meet the threshold for the grant of the order sought. If the defendant bank wished to exercise its statutory power of sale, it had to issue fresh statutory notices and ensure an updated valuation report was prepared as required by the law and also to enable the plaintiff have ample time to try and rectify the default.
Application dismissed, costs would be in the cause.
Long'et Terer - CEO and Editor
The Kenya Law Team
Where Legal Information is Public Knowledge.
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