Weekly Newsletter 027/2019



Kenya Law

Weekly Newsletter


Material evidence obtained through arbitrary search should not be used in instituting criminal proceedings.
Reuben Njuguna Gachukia & another v Inspector General of the National Police Service & 4 others [2019] eKLR
Constitutional Petition 436 of 2017
High Court at Nairobi
W A Okwany, J
April 12, 2019
Reported by Beryl Ikamari & Mathenge Mukundi
Download the Decision
 
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-rights to privacy and rights to equal protection and benefit of the law-whether the petitioners’ rights to equal protection and benefit of the law and rights to privacy were violated by an arbitrary search conducted in their offices and the use of the material evidence obtained from the search to initiate criminal proceedings against them-Constitution of Kenya, 2010, articles 27 & 31.
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-remedies-damages-whether the court would award damages for constitutional violations of the right to privacy and right to equal protection and benefit of the law where an arbitrary search was conducted in the petitioners’ offices and the material evidence obtained was used to institute criminal proceedings against them-Constitution of Kenya, 2010, article 23 (3) (e).
Jurisdiction-jurisdiction of the High Court-powers of the High Court-prohibition or discontinuance of prosecution-what were the grounds upon which prosecution would be prohibited or discontinued by the High Court-whether the High Court had the jurisdiction to hear and determine allegations of infringement and violation of fundamental rights and freedoms that took place during the course of employment-Constitution of Kenya, 2010, articles 23, 157 & 165.
 
Brief facts:
The petitioners were employees of the 5th respondent in the finance department as accountant grade 3 and the assistant chief cashier respectively. On August 23, 2017 at about 9am a group of well-built men stormed into the cash office and began rummaging and ransacking through the petitioners’ desks. The petitioners later on came to learn that the men were the 4th respondent’s hirelings/agents. In the course of searching the petitioners’ desks and cabinets, the said men came across cash that belonged to the 5th respondent whereupon they began shouting and calling on the 4th respondent to come and see the money that had allegedly not been banked in the 5th respondent’s account.
The petitioners stated that they explained to the 4th respondent the reasons why the money collected by them the previous day was yet to be banked in the 5th respondent’s account but that the 4th respondent did not accept their explanation and referred the matter for investigations by the 5th respondent’s Chief Officer. The Chief Officer found that no monies were lost or misappropriated. Despite their explanation and the findings of the 5th respondent’s Chief Officer, they were on August 29, 2017 arrested and detained at Muthaiga Police Station on claims of abuse of office and later presented before the Chief Magistrate’s Court on trumped charges instigated by the 4th respondent thereby prompting them to file the petition.
The petitioner alleged that the actions of the henchmen of the 4th respondents were illegal and in complete violation of their rights under the Bill of Rights. Following the claims made against them by the 4th respondent, officers of the 2nd respondent began questioning them over their private properties and bank accounts in breach of article 40(3) of the Constitution. They contended that the fact that the 2nd respondent proceeded to act on the 4th respondent’s complaint even after it had been established that there was no impropriety on their part indicated an improper motive on the part of the respondents
.

Issues:
  1. Whether the material evidence obtained through an unlawful and illegal search could be used in instituting criminal proceedings.
  2. Whether the High Court had the jurisdiction to hear and determine allegations of infringement and violation of fundamental rights and freedoms that took place during the course of employment.
  3. Whether the petitioners’ rights to equal protection and benefit of the law and rights to privacy were violated when an arbitrary search was conducted in their offices and thereafter criminal proceedings were initiated against them.
  4. What validity test was to be adhered to when conducting a search on a persons’ place of work?
  5. What were the grounds upon which prosecution would be prohibited or discontinued by the Court?
  6. Whether the Court would award damages for constitutional violations of right to privacy and rights to equal protection and benefit of the law where an arbitrary search was conducted at the petitioners’ offices and the material evidence obtained was used to institute criminal proceedings against them.
Held:
  1. Jurisdiction ought to be derived from the Constitution and statute and without jurisdiction, a court could not make one more step and had to down its tools. Whenever the issue of jurisdiction was raised, the Court was enjoined to wholly reflect upon it while bearing in mind the relevant constitutional and statutory provisions. In that regard, one of the prayers in the petition, touched on the employer/employee relationship between the petitioners and the 4th and 5th respondents, which was an area that the Court could not venture into as it fell within the purview of the ELRC. The Court did not have the jurisdiction to entertain the claim regarding the petitioners’ employment.  However, that did not preclude the Court from considering the other claims on violation of constitutional rights.
  2. The import of article 27 of the Constitution was that human rights and fundamental freedoms were guaranteed to all persons by virtue of being human and had to be enjoyed without limitation. The Constitution prohibited all forms of discrimination but the listed grounds of discrimination were not exhaustive. The petitioners claimed that they were not accorded equal treatment before the law as charges had been preferred against them together with 5 other suspects. There was no proof that the action taken against the petitioners was discriminatory as they did not show that they were subjected to different treatment from other suspects on any of the grounds stated in article 27 of the Constitution.
  3. The petitioners’ right to privacy was violated as their offices were arbitrarily raided and searched by persons who were not law enforcement officers and who had no locus standi to undertake such a raid. The respondents did not tender any explanation for their actions save for the claim that they had information that the petitioners were holding cash in their offices. That claim did not mount to the commission of a criminal offence as the cash was held by the petitioners in their offices in their capacity as the 5th respondent’s cashier and accountant respectively.
  4. The investigations that led to the subsequent arrest and institution of criminal charges against the petitioners were initiated by the 4th respondent who employed ‘goons’ to raid the petitioners’ private offices on an alleged mission to find out if the petitioners were having any cash therein that belonged to the 5th respondent. The 4th respondent had no powers to investigate or ‘find cash’ as he claimed to have done and the investigations into the alleged loss of cash by the 4th respondent, was irreparably botched from the onset and the 4th respondent could not purport to belatedly sanitize an illegal search by inviting the 1st, 2nd and 3rd respondents to carry out the said investigations.
  5. The manner in which the search was carried out by the 4th respondent and his hirelings did not meet the validity test.  The search was conducted by persons who were not police officers and they also did not identify themselves to the petitioners before the search, or state their grounds/ objects of the search and they did not inform the petitioners of their right to a record of the search findings.
  6. The manner in which the investigations and the subsequent arraignment of the petitioners were conducted had all the hallmarks of malice and abuse of process. If indeed the 4th respondent had information regarding any misuse of funds or abuse of office, then nothing would have been easier for him to do than to invite law enforcement authorities to carry out the audit or investigation instead of taking the law into his own hands by employing the services of goons. The actions of the 4th respondent and his henchmen could not be tolerated in a democratic society that was governed by the rule of law as it was not open for any public servant, however high ranking, to usurp the powers of the law enforcement agencies and purport to carry out investigations and searches into other people’s private offices.
  7. Section 118 of the Criminal Procedure Code stipulated that where it was proved on oath to a court or a Magistrate that anything upon, with or in respect of which an offence had been committed, or anything which was necessary for the conduct of an investigation into an offence, was, or was reasonably suspected to be in any place,  the Court or a Magistrate would by written warrant (called a search warrant) authorize a police officer or a person named in the search warrant to search the place (which should be named or described in the warrant) for that thing and, if the thing be found, to seize it and take it before a court having jurisdiction to be dealt with according to law. The respondents did not establish that they had search warrants to search the petitioners’ offices and therefore the search was conducted in total disregard to the petitioners’ right and freedom from arbitrary search.
  8. Article 157 of the Constitution established the Office of the Director of Public Prosecutions and granted him powers to initiate, sustain or discontinue prosecutions without direction or control from any person or authority. Article 157(11) required the 3rd respondent, in exercising prosecutorial powers to have regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process. The impugned investigation into the alleged indiscretions by the petitioners was tainted by malice and abuse of process right from its inception. Under the circumstances, the prosecution that was initiated as a result of such investigations could not be said to be free from suspicion of malice and ulterior motive.
  9. Courts had in the recent past been swarmed with numerous cases where the prosecution presented high profile suspects in court prematurely before concluding investigations only for such cases to collapse for lack of evidence thereby creating the impression that courts were either ineffective in their work or were colluding with suspects to defeat justice. In the circumstances of the instant case, it was clear that the prosecution was instituted without reasonable or probable cause and the Court could not therefore countenance the continuation of such prosecution.
  10. The grounds upon which prosecution would be prohibited or discontinued by the Court were as follows:
    1. where institution/continuance of criminal proceedings against an accused would amount to abuse of the process of the court or where the quashing of the impugned proceedings would secure the ends of justice;
    2. where it manifestly appeared that there was a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction;
    3. where the allegations in the police report or the complaint taken at face value and accepted in entirety, did not constitute the offence alleged; and
    4. where the allegations constituted an offence alleged but there was either no legal evidence adduced or it manifestly failed to prove the charge.
  11. The petition met the criteria set for prohibiting or discontinuing prosecutions. It was within the power of the Court to quash/prohibit the institution of criminal proceedings. The Court not only had a right but a duty to protect citizens against harsh and unfair treatment. The duty of the Court was not only to see that the law was applied but also that the law was applied in a just and equitable manner.
  12. The High Court had inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considered himself to be a victim of oppression. If the prosecution amounted to an abuse of process of the court and was oppressive and vexatious, the Court had the power to intervene and the High Court had an inherent power and duty to serve fair treatment for all persons who were brought before the Court or to a subordinate court to prevent an abuse of the process of the court.
  13. Article 23 (3) of the Constitution empowered the Court to grant appropriate reliefs in any proceedings seeking to enforce fundamental rights and freedoms. What amounted to "appropriate relief" was relief that was required to protect and enforce the Constitution. Depending on the circumstances of each particular case, the relief would be a declaration of rights, an interdict, a mandamus, or such other relief as would be required to ensure that the rights enshrined in the Constitution were protected and enforced. If it was necessary to do so, the Court would fashion new remedies to secure the protection and enforcement of those rights. The courts had a particular responsibility in that regard and were obliged to "forge new tools" and shape innovative remedies, if need be to achieve the goal.
  14. The principles applicable to award of damages for constitutional violations were that an additional award, not necessarily of substantial size, would be needed to reflect the sense of public outrage, emphasize the importance of the constitutional right and the gravity of the breach, and deter further breaches. It was incumbent on the courts to develop appropriate principles and guidelines as to the quantum of awards of compensation where applicable. Where an award of monetary compensation was appropriate the crucial question related to what would be a reasonable amount in the circumstances of the particular case. The infringement should be viewed in its true perspective as an infringement of the sacrosanct fundamental rights and freedoms of the individual and a breach of the supreme law of the land by the state itself. However, that does not mean that the infringement should be blown out of all proportion to reality nor did it mean that it should be trivialized. In like manner the award should not be so large as to be a windfall nor should it be so small as to be nugatory.
  15. The award of damages for constitutional violations of an individual's right by the state or the government were reliefs under public law remedies within the discretion of a trial court but such discretion was limited by what was appropriate and just according to the facts and circumstances of a particular case. The primary purpose of a constitutional remedy was not compensatory or punitive but was to vindicate the rights violated and to prevent or deter any future infringement.
  16. The prosecution of the petitioners had barely commenced before the Trial Court. The justice of the petition did not favour the granting of an award of damages for the breach of constitutional rights and a declaration of violation of rights would be the appropriate remedy in the circumstances of the petition.
Petition allowed with no orders as to the costs.
Orders:
  1. A declaration was issued to the effect that the petitioners’ rights as enshrined in the Constitution with respect to the right to privacy had been infringed by the acts and/or omissions of the respondents.
  2. Conservatory orders were issued to prohibit the 1st, 2nd and 3rd respondents from investigating and prosecuting the petitioners based on the events of August 23, 2017.
Kenya Law
Case Updates Issue 029/2019
Case Summaries

JUDICIAL REVIEW Court quashes Hide, Skin and Leather Trade (Cess) Rules, 2017 which imposed cess on processed hides and skins destined for export.

Republic v Cabinet Secretary, Ministry of Agricultures, Livestock & Fisheries & another Ex parte Tanners Association of Kenya (suing through its Chairman Robert Njoka) [2019] eKLR
Miscellaneous Application 190 of 2018
High Court at Nairobi
J M Mativo, J
May 20, 2019
Reported by Beryl Ikamari & Mathenge Mukundi

Download the Decision

Judicial Review- grounds and remedies for judicial review- certiorari and prohibition-principles of ultra vires and illegality-claim that various legal provisions were violated when a cabinet secretary allegedly exceeded his powers and imposed cess on hide, skins and processed leather products destined for export-whether the decision to impose cess was ultra vires and illegal and could be remedied by judicial review -Statutory Instruments Act, sections 2, 5, 11 & 13, Hide, Skin and Leather Trade Act, section 20(g), Miscellaneous Fees and Levis Act, section 5 (1) & (4).

Brief Facts:
The ex parte applicant was aggrieved by Legal Notice 300 of 2017 published by the respondent on January 26, 2018 in Kenya Gazette Vol. CXX-No. 11. The Legal Notice related to the Hide Skin and Leather Trade (Cess) Rules which imposed cess on processed hides and skins before they were cleared for export. The ex parte applicant contended that the respondent had no power to impose the levy and that the decision violated the Statutory Instruments Act, the Miscellaneous Fees and Levis Act, a consent order made on April 22, 2016 in Nairobi Constitutional Petition 498 of 2013 and Executive Order 2/2013 issued by the Executive Office of the President and the Constitution.
Additionally, the ex parte applicant alleged that the respondent acted ultra vires because the interested party herein, namely, the Cabinet Secretary, Ministry of Industry, Trade & Co-operatives was the responsible Cabinet Secretary mandated by the Executive Order 2/2013 to carry out the responsibility of leather development and not the respondent herein, namely, the Cabinet Secretary, Ministry of Agricultures, Livestock & Fisheries. The ex parte applicant contended that the interested party was the relevant Cabinet Secretary mandated to make rules under section 20(g) of the Hide, Skin and Leather Trade Act for purposes of improving the quality of hides, skins, leather and leather goods.

Issues:

  1. Whether the imposition of cess on hide, skins and processed leather products destined for export was an ultra vires decision as it was allegedly made by an authority that lacked the power to do so.
  2.  Whether the decision to impose cess on hide, skins and processed leather products destined for export was tainted with illegality as it breached statutory and constitutional requirements, including public participation requirements.Read More..

Held :

  1. Safeguarding legality was the most important purpose in the judicial review of administrative actions. Thus, a person seeking judicial review of an administrative decision had to persuade the Court that there were grounds for review in order for the legality of the administrative decision to be judicially challenged. In one sense, there had to be a premise of want of legality. Differently stated, in response to a challenge to the legality of administrative action, courts generally needed to consider the compliance with both substantive and procedural legal rules. That was because any administrative decision-making process involved the exercise of legally conferred powers and the observation of legally prescribed procedures.
  2. The most basic rules of administrative law were first that decision-makers would exercise only those powers, which were conferred on them by law and, second, that they would exercise those powers only after compliance with procedural prerequisites. So long as administrators complied with those two rules, their decisions were safe. That fundamental principle in administrative law generally required that the exercise of powers of administrators and statutory bodies had to strictly comply with the law both substantively and procedurally. It followed, therefore, that the legality of an administrative decision could be judicially challenged on grounds that the administrative decision did not comply with the basic requirements of legality.
  3. A decision was illegal if it contravened or exceeded the terms of the power which authorized the making of the decision, pursued an objective other than that for which the power to make the decision was conferred, was not authorized by any power, contravened or failed to implement a public duty.
  4. The task for the courts in evaluating whether a decision was illegal was essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision-maker. The instrument would normally be a statute. A cabinet secretary was bound to adhere to the law. The courts when exercising that power of construction were enforcing the rule of law, by requiring government functionaries to act within the four corners of their powers or duties. They were also acting as guardians of the Legislature’s will, seeking to ensure that the exercise of power was in accordance with the scope and purpose of Parliament’s enactments. Where discretion was conferred on the decision-maker, the courts also had to determine the scope of that discretion and therefore needed to construe the statute purposefully. One could confidently assume that Parliament intended its legislation to be interpreted in a meaningful and purposive way giving effect to the basic objectives of the legislation.
  5. The exercise of statutory power had a constitutional underpinning and the Constitution should be the point of reference for any one exercising statutory power. Thus, the exercise of public power had to strictly conform to the constitutional dictates of transparency, openness, accountability, fairness and generally, the rule of law. Such rights could not be narrowly construed. Differently put, every person had a right to an administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair.
  6. There was a threefold classification of grounds of judicial review, any one of which would render an administrative decision and/or action ultra vires. Those grounds were illegality, irrationality and procedural impropriety. Later, judicial decisions incorporated a fourth ground, namely, proportionality. Illegality as a ground of judicial review meant that the decision-maker had to understand the law that regulated his decision-making correctly and had to give effect to it. Irrationality referred to unreasonableness. Procedural impropriety included those heads of judicial review, which upheld procedural standards which administrative decision-makers had to, in certain circumstances, adhere to.
  7. Judicial intervention was posited on the idea that the objective was to ensure that the agency of a government functionary remained within the area assigned to it by Legislature. A decision, which fell outside that area, could therefore be described, interchangeably, as a decision to which no reasonable decision-maker could have come or a decision which was not reasonably open in the circumstances.
  8. Illegality was divided into two categories those that, if proved, meant that the public authority was not empowered to take action or make the decision it did; and those that related to whether the authority exercised its discretion properly. Grounds within the first category were simple ultra vires and errors as to precedent facts. Errors of law on the face of the record, making decisions on the basis of insufficient evidence or errors of material facts, taking into account irrelevant considerations or failing to take into account relevant ones, making decisions for improper purposes, fettering of discretion and failing to fulfill substantive legitimate expectations were grounds within the second category.
  9. The ultra vires principle was based on the assumption that judicial review was legitimated on the ground that the courts were applying the intent of the Legislature. The Legislature found it necessary to accord power to ministers, statutory bodies, administrative agencies, local authorities and the like. Such power would always be subject to certain conditions contained in the enabling legislation. The courts’ function was to police the boundaries stipulated by Parliament. The ultra vires principle was used to achieve that end in two related ways. In a narrow sense, it captured the idea that the relevant agency had to have the legal capacity to act in relation to the topic in question. In a broader sense, the ultra vires principle had been used as the vehicle through which to impose a number of constraints on the way in which the power given to the agency would be exercised. Such an agency to comply with rules of fair procedure, exercise its discretion to attain proper purposes and lastly it had to act reasonably. The ultra vires principle thus conceived provided both the basis for judicial intervention and established its limits.
  10. Section 20(g) of the Hide, Skin and Leather Trade Act provided that the minister would impose cess or tax on hides, skins, leather and leather goods, either generally or on any specified grade or class or type of hides, skins or leather or leather goods. The ex parte applicant argued that the minister contemplated under the legal provision was the interested party and not the respondent. The ex parte applicant placed reliance on Executive Order 2 of 2013 and argued that the function in question fell under the docket of the interested party and not the respondent. It was not clear why the ex parte applicant’s counsel placed reliance on the 2013 Executive Order, and ignored Executive Order 1 of 2018-Reorganization of the Government of Kenya, which placed the function of promotion of tannery industry on the respondent and the leather sector development on the interested party.
  11. The leather industry covered the preservation of raw hide and the tanneries which processed the raw skins into durable leather. In a wider sense the leather industry also included the companies which processed the skins into ready-for-use articles. They included the shoe manufacturers, the clothing manufacturers, the manufacturers of car upholstery and the furniture industry. It also included the manufacturers of belts, bags and many other leather products. Promotions referred to the entire set of activities, which communicated the product, brand or service to the user.
  12. The two ministries in question had overlapping functions touching on the leather industry. There was nothing that suggested that the respondent acted outside its mandate by gazetting and/or implementing the Rules requiring payment of cess. Under Executive Order 1 of 2018 nothing expressly prohibited the respondent from performing the function in question.
  13. The ex parte applicant contended that the respondent violated section 5 (1) of the Miscellaneous Fees and Levies Act which provided for imposition of export levy on all the goods listed in the First Schedule to the Act.  However, sub-section 4 of the said section provided that the Commissioner should, by notice in the Gazette, adjust the specific rate of export levy annually to take into account inflation in accordance with the formula specified in Part III of the First Schedule. The stated sub-section 4 disposed off the ex parte applicant’s contention.
  14. The ex parte applicant contended that the respondent defied a court order issued in Constitutional Petition 498 of 2013, a suit which involved the same parties as in the instant case. It was uncontested that the suit challenged the legality of the same levy, which was the subject of the dispute in the instant case. It was common ground that the parties herein in 2013, recorded a consent order the terms of which were undisputed. The terms of the consent order were that the 1st respondent would de-gazette Legal Notice 144 of 2014 (the Hide, Skin and Leather Trade Cess) Rules, 2014, that any levy or cess to be charged by the 1st Respondent be agreed upon and justified by the stakeholders before gazettement, that the Petitioner and its members agreed and undertook not to claim all the cess levied on them from 2006 and 2014; and that the matter would be marked as settled with no order as to costs.
  15. There was no evidence to show that the levy was agreed upon and justified by the stakeholders before the gazettement. The respondent was bound to abide by the terms of the order or file a suitable application in court to review, vary or set it aside. The existence of a binding court order precluded the respondent from acting in any manner other than as prescribed in the order. It followed that the decision to gazette or implement the levy was done in violation of a court order and it was amenable to judicial review.
  16. Obedience to court orders was an integral part of the rule of law without which the administration of justice would be jeopardized. The rule of law was one of the core values and principles of governance enshrined in article 10 of the Constitution.  The principles in article 10 bound all state organs, state officers, public officers and all persons whenever any of them applied or interpreted the Constitution, enacted, applied or interpreted any law, or made or implemented public policy decisions. Put differently, by flouting a court order, the respondent violated a core value in article 10 of the Constitution, namely, the rule of law. It flouted the principle of legality.
  17. The essence of the principle of legality was the bedrock of the constitutional dispensation. It followed that for the impugned decision to be allowed to stand, it had to be demonstrated that the decision was grounded in law, and had not been arrived at in breach of the law. To the extent that the respondent acted in total disregard of a court order, the impugned decision was tainted with illegality and mala fide. Hence, it could not be allowed to stand.
  18. The impugned regulations fell within the ambit of the definition of statutory instruments contemplated in section 2 of the Statutory Instruments Act. The respondent only addressed the question public participation and said nothing about all the other requirements enumerated in section 13 of the Act. It was a constitutional and statutory imperative that those requirements be complied with before the regulations were operationalized. The impact of the legal notice was to impose a tax burden upon the applicant’s members. Such a burden could only be imposed after scrupulous adherence to the law.
  19. The legislation had to conform to the Constitution in terms of both its content and the manner in which it was adopted. Failure to comply with manner and form requirements in enacting legislation rendered the legislation invalid. Courts had the power to declare such legislation invalid.  The Court not only had a right but also had a duty to ensure that the law-making process prescribed by the Constitution was observed. If the conditions for the law-making processes had not been complied with, it was the duty of the Court to say so and declare the resulting statute or regulations or rules invalid. Accordingly, Legal Notice 300 of 2017 was adopted in a manner inconsistent with the constitutional and statutory requirements. The moment violation of the Constitution or breach of a statutory requirement became evident as was the case in the instant suit, the rebuttable presumption of constitutionality of a statute ceased to operate.

Application allowed.
Orders:

  1. An order of certiorari was issued to quash the respondent’s decision contained in Legal Notice 300 of 2017, published on January 26, 2018 in Kenya Gazette Vol. CXX-No. 11 which imposed cess on the leather goods of the members of the applicant which were destined for export.
  2.  An order of prohibition was issued to direct the respondent to restrain from imposing and collecting cess from the ex parte applicant’s leather products destined for export.
  3. Each party was to bear the costs of the suit.
CONSTITUTIONAL LAW Court ordered DNA testing done for purposes of establishing the paternity of a child is not necessarily unconstitutional.

ANM & another v FPA & another
Constitutional Petition 10 of 2017
High Court at Machakos
G V Odunga, J
May 28, 2019
Reported by Beryl A Ikamari

Download the Decision

Constitutional Law-fundamental rights and freedoms-rights to bodily security, privacy and human dignity-limitation of the enjoyment of the rights-where the Court ordered for parties to undergo DNA testing to establish the paternity of a child and it was alleged that the compulsory DNA testing violated rights to bodily security, privacy and human dignity-whether the limitation placed on the enjoyment of the rights for purposes of establishing the paternity of a child was justified.
Constitutional Law-fundamental rights and freedoms-rights of children-right to parental care and protection-whether the right to parental care and protection would of necessity include the right of a child to know his or her biological parents and whether it was in a child's best interest to know his or her biological parents-Constitution of Kenya 2010, articles 53(1)(e) & 53(2); Children Act, No. 8 of 2001, section 4(2)(3). 
Constitutional Law-locus standi-institution of court proceedings to establish the paternity of a child-nature of persons with locus standi to institute such proceedings-requirement that such persons should lay a reasonable basis for seeking to establish the paternity of the child-whether a person who on a prima facie basis set out a claim that he was the father to a child could institute court proceedings to determine the paternity of the child-Constitution of Kenya 2010, articles 22(1) & 22(2).
Constitutional Law-enforcement of fundamental rights and freedoms-petitions-requirement that petitions would have to be drafted with a reasonable degree of precision as contrasted with the requirement that formalities be kept to a minimum and the court proceedings could commence on the basis of informal documentation-effect of failure to draft pleadings with a reasonable degree of precision-whether the petition would be dismissed-Constitution of Kenya 2010, article 22(3)(b).

Brief Facts:
The petitioners were a married couple who stated that they had a child (minor) together. The child was born on March 14, 2015. In a different case, Mavoko Children’s Case No. 5 of 2017, the 1st respondent sued the 1st petitioner and made claims which included an assertion that he fathered the 1st petitioner's child. He said that he ought to be given access and custody of the minor. The 1st respondent successfully made an oral application for the parties to undergo DNA testing.
The petitioners' case was that in the issuance of the orders for DNA testing, the minor's rights were violated. The 1st petitioner contented that the Court failed to properly consider the issues surrounding the DNA testing application. That led to violations of the 1st petitioner's rights to a fair trial and fair administrative action. The petitioners questioned the constitutionality of compulsory DNA testing done in furtherance of court orders in light of rights to bodily security, privacy and dignity and also its impact on the principle of the best interest of the child.

Issues:

  1. Whether compulsory DNA testing which was done pursuant to a court order was unconstitutional as it entailed a limitation of the enjoyment of the rights to bodily security, privacy and human dignity.
  2. Whether a child had a constitutional right to know his or her parents.
  3. Whether any person, with a reasonable basis, could institute proceedings relating to a determination about the paternity of a child.
  4. Whether in petitions for the enforcement of fundamental rights and freedoms, failure to draft pleadings with a reasonable degree of precision, would lead to the dismissal of the petition.
  5. Under what circumstances would it be appropriate for the Court to order parties to undergo DNA testing in order to establish the paternity of a child? Read More...

Held:

  1. Article 53(1)(e) provided that every child had the right to parental care and protection, including the equal responsibility of the mother and father to provide for the child regardless of whether they were married to each other. Additionally, article 53(2) of the Constitution and section 4(2)(3) of the Children Act were to the effect that the best interests of the child were of primary and paramount importance in matters concerning the child. A court order requiring the parent of a child to undergo DNA testing was not prima facie unconstitutional. The right to parental care and protection included the child's right to know the father. Under article 22(1) and 22(2) of the Constitution a parent could institute court proceedings for a determination relating to a child's paternity.
  2. Any person could institute proceedings seeking redress on behalf of a child where the child's rights had been violated or there was a threat to the enjoyment of such rights. It was the child's constitutional right and in the child's interests to grow up with knowledge of who his or her parents were. There was nothing unconstitutional about the 1st respondent moving the Court for a determination on who the biological parents of the child were.
  3. Where a person had reasonable grounds for believing that he or she was the biological mother or father of a child, nothing prevented that person from seeking a determination as to who the child's biological parents were. Since the Constitution gave parental responsibility to a father, regardless of the fact as to whether he was in a marriage with the child's mother, it was only just for the father to be granted rights that supported that obligation. Such a person was entitled to demand, after demonstrating the existence of reasonable grounds, for the paternity of a minor to be established at an early point in time so that he could plan his affairs.
  4. A determination relating to paternity would not necessarily mean that the father would take custody of the child. The issue on custody would depend on where the best interests of the child fell. Therefore, in proceedings relating to paternity, the issue, as to whether the person claiming paternity had the financial means to take care of a child, would not arise.
  5. The position on precision when drafting pleadings in constitutional litigation as articulated in Anarita Karimi Njeru v the Republic, had to be read in light of the provision of article 22(3)(b) and 22(3)(d) of the Constitution. Articles 22(3)(b) and 22(3)(d) of the Constitution enjoined the Chief Justice to make rules providing for court proceedings in which formalities relating to the proceedings, including commencement of the proceedings, were kept to the minimum and where necessary, the Court could entertain proceedings on the basis of informal documentation, while observing the rules of natural justice and not being unreasonably restricted by procedural technicalities.
  6. Whereas it was prudent for a petitioner to set out with a reasonable degree of precision that which he complained of, the provision said to be infringed and the manner in which it was alleged to be infringed, dismissing an application merely because those requirements on precision in drafting pleadings were not met, would defeat the spirit of article 22(3)(b) under which proceedings could be commenced on the basis of informal documentation. However that did not mean that the Court ought to encourage and condone sloppy and carelessly drafted petitions.
  7. Where it was apparent that the bill of rights had been or was threatened with contravention, failing to enforce the bill of rights on grounds that the petition was not drafted with a reasonable degree of precision, would amount to the Court shirking its constitutional duty of granting relief to deserving persons and sacrificing constitutional principles and the dictates of the rule of law at the altar of procedural issues.
  8. Before a court could direct parties to undergo DNA testing, a prima facie case had to be established. That was because the DNA test would intrude into rights to bodily security and integrity and also privacy. It was necessary for a basis to be laid to justify the intrusion. The DNA test would limit or restrict the rights to privacy and dignity. For the limitation of those rights to be valid it would have to satisfy the requirements of article 24 of the Constitution. The limitation would have to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
  9. In the circumstances, the Court could not determine whether the limitation or restriction of the rights of the petitioners was justifiable in the circumstances prevailing before the Trial Court. It was for the Trial Court to consider whether the limitation was justifiable in accordance with the paramountcy principle in article 53(1)(e) and 53(2) of the Constitution as read with section 4(2)(3) of the Children Act.
  10. In appropriate cases the Court was empowered to direct parties before it to undergo DNA testing and there was nothing unconstitutional about that power.

Orders:-

  1. The orders made in Mavoko SPM’s Court Children’s Case No. 5 of 2017 on August 14, 2017 directing the parties to undergo DNA testing, were set aside.
  2. The matter was referred back to the Trial Court for hearing and determination as provided for under the law.
  3. The parties were directed to furnish the Court with soft copies of the documents filed (the parties’ pleadings and submissions).
  4. The 1st Respondent was to bear the costs of the petition.
CONSTITUTIONAL LAW There is a conflict between sections 297 (2) and 389 of the Penal Code as to the sentence for the offence of attempted robbery with violence

Tom Ochieng Wayumba v Director Of Public Prosecutions [2019]eKLR
Constitutional Petition 112 of 2018
High Court at Mombasa
E K O Ogola, J.
June 3, 2019
Reported by Robai Nasike & Moses Rotich

Download the Decision

Constitutional Law-interpretation of the Constitution-principles for interpretation of the Constitution-what were the guiding principles in interpretation of the Constitution-finding that the courts could consult the hansard to establish the intention of the legislature-whether the historical background of legislation ought to be considered during interpretation- Constitution of Kenya, 2010, article 259
Constitutional Law-fundamental rights and freedoms-right to a fair trial- right to the benefit of the least severe of the prescribed punishments- where there was a lesser sentence provided under section 389 of the Penal Code -whether there was a violation of the right to fair trial where a person convicted of offence of robbery with violence was sentenced to death as per section 297(2) of the Penal Code-Constitution of Kenya, 2010, article 50(2)(p)
Statutes-interpretation of statutes- interpretation of section 297(2) and 389 of the Penal Code-claim that section 297(2) conflicted with section 389 of the Penal Code-finding that there was a conflict between section 297(2) of the Penal Code and section 389 as regards the sentence for the offence of attempted robbery with violence-petitioner having been sentenced to death in accordance with 297(2) of the Penal Code-what was the proper sentence for the offence of attempted robbery with violence-Penal Code, sections 297(2)& 389

Brief facts:
The petitioner was charged with the offence of attempted robbery with violence contrary to section 297(2) of the Penal Code. He was convicted and sentenced to death. His two appeals to the High Court and Court of Appeal were dismissed. Aggrieved, the petitioner lodged the instant petition and urged the Court to find that section 297(2) of the Penal Code, under which he was charged, contradicted section 389 of the Penal Code as to the sentence that should be meted out for the offence of attempted robbery with violence.
The respondent opposed the petition citing High Court’s lack of jurisdiction to re-hear and re-determine a matter whose appeal had been heard and dismissed by the Court of Appeal. They stated that the applicant’s only recourse was an appeal to the Supreme Court.

Issues:

  1. Whether the High Court had jurisdiction to determine a constitutional petition challenging a criminal conviction and sentence whose appeal had been heard and dismissed by the Court of Appeal.
  2. Whether section 297(2) of the Penal Code imposing a death sentence for the offence of attempted robbery with violence conflicted with section 389 which provided for a maximum sentence of seven years imprisonment.
  3. Whether the offence of attempted robbery with violence created under section 297(2) of the Penal Code was a felony or a misdemeanour.
  4. What was the punishment for the offence of attempted robbery with violence?
  5. What were the guiding principles in interpretation of the Constitution?
  6. Whether sentencing a person convicted of attempted robbery with violence to death, in accordance with section 297(2) of the Penal Code, violated the right to the benefit of the least severe of the prescribed punishments as enshrined under article 50(2)(p) of the Constitution. Read More...

Relevant provisions of the law
Constitution of Kenya, 2010
Article 23
(1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
 (2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
 (3) In any proceedings brought under Article 22, a court may grant appropriate relief, including—

 (a) a declaration of rights;
(b) an injunction;
 (c) a conservatory order;
 (d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;
 (e) an order for compensation; and
 (f) an order of judicial review.

Article 50(2)(p)
(2) Every accused person has the right to a fair trial, which includes the right—

(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing;

The Penal Code
Section 297
(1) Any person who assaults any person with intent to steal anything, and, at or immediately before or immediately after the time of the assault, uses or threatens to use actual violence to any person or property in order to obtain the thing intended to be stolen, or to prevent or overcome resistance to it being stolen, is guilty of a felony and is liable to imprisonment for seven years.
 (2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more person or persons, or if, at or immediately before or immediately after the time of assault, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

Section 389
Any person who attempts to commit a felony or a misdemeanor is guilty of an offence and is liable, if no other punishment is provided, to one-half of such punishment as may be provided for the offence attempted, but so that if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment for a term exceeding seven years.

Held:

  1. Articles 23 of the Constitution gave the High Court the jurisdiction to hear and determine matters involving violation of fundamental rights under the Bill of Rights. The jurisdiction of the High Court to determine issues of violation of fundamental rights was further cemented by article 165 which established the High Court and vested on it the jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights had been denied, violated, infringed or threatened. The petitioner had not asked the instant court to review his conviction. He submitted that his case had run its course. The petitioner came to the instant court seeking redress for alleged violation of his rights under the Bill of Rights. Therefore, the instant court had jurisdiction to entertain the matter by virtue of article 23 and 165(3)(b) of the Constitution.
  2. The petitioner was charged under section 297 (2) of the Penal Code which provided the sentence for attempted robbery with violence as death. However, section 389 provided the sentence for an attempted felony as being imprisonment for a term not exceeding seven years if the intended offence was punishable by death or life imprisonment.
  3. Section 4 of the Penal Code defined a felony as an offence which was declared by the law to be a felony or if not declared to be a misdemeanor, was punishable, without proof of previous conviction, with death, or with imprisonment for three or more years. It was evident that attempted robbery with violence did fall within the definition of a felony.
  4. Section 297 (2) of the Penal Code on the one hand provided the death sentence while section 389 provided for a sentence of imprisonment for a term not exceeding seven years if the offence was punishable by death or life imprisonment. There was clearly a conflict between the two sections as to the sentence that should be meted out for the offence of attempted robbery with violence.
  5. Article 259 of the Constitution provided that the Constitution should be interpreted in a manner that promoted its purposes, values and principles; advanced the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; permitted the development of the law; and contributed to good governance. The Constitution should be given a purposive interpretation where all provisions are read as a whole with each provision sustaining the other.
  6. Purposive interpretation should be given to statutes so as to reveal the intention of the statute. Purposive approach to legislative interpretation had evolved to resolve ambiguities in meaning. In that regard, where the literal words used in a statute created an ambiguity, the court was not to be held captive to such phraseology.  Where the court was not sure of what the legislature meant, it was free to look beyond the words themselves, and consider the historical context underpinning the legislation.
  7. The object of the court in interpreting legislation was to give effect, so far as the language permitted, to the intention of the legislature. If the language proved to be ambiguous, there was no reason not to consult the hansard to see if there was a clear statement of the meaning that the words were intended to carry. The days had long passed when courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts could adopt a purposive approach which sought to give effect to the true purpose of legislation and were prepared to look at much extraneous material that bore upon the background against which the legislation was enacted.
  8. Interpretation of any document ultimately involved identifying the intention of parliament, the drafter, or the parties. That intention had to be determined by reference to the precise words used, their particular documentary and factual context, and, where identifiable, their aim and purpose. To that extent, almost every issue of interpretation was unique in terms of the nature of the various factors involved. However, that did not mean that the court had a completely free hand when it came to interpreting documents; that would be inconsistent with the rule of law, and with the need for as much certainty and predictability as could be attained, bearing in mind that each case had to be resolved by reference to its particular factors.
  9. Article 50 of the Constitution guaranteed the petitioner the right to a fair trial which included the right to the benefit of the least severe of the prescribed punishments for an offence. Sections 297(2) and 389 of the Penal Code provided sentences for the crime of attempted robbery with violence. Section 297 which was the substantive provision for robbery with violence prescribed a sentence of death while section 389 under which the crime also fell prescribed a sentence not exceeding seven years. A reading of both provisions of the Penal Code, the drafters of the legislation seemed to have created two sentences for the offence in question. As a result, a conflict emanated that could only be resolved by way of amendment. Be that as it may, the Constitution courtesy of article 2 was the supreme law and any other legislation was subordinate to it. The Constitution mandated that an accused should be entitled to the least severe sentence which in the instant case was that provided by section 389 of the Penal Code.
  10.  Previous court decisions showed that there had been instances where appellants faced with similar circumstances as the petitioner were accorded the benefit of the least severe sentence during their appeals before the Court of Appeal. It would be in line with the provisions of article 27 of the Constitution to accord the petitioner the same treatment. In according the petitioner the same treatment, the instant Court would also be guaranteeing the petitioner’s right to life under article 26 and his right to human dignity under article 28 of the Constitution.

Petition allowed.
Orders

  1. There was a conflict between section 297(2) and 389 of the Penal Code as to the sentence for the offence of attempted robbery with violence and the conflict violated the petitioner’s rights under article 50 (2)(p).
  2. The petitioner was entitled to benefit from the lesser sentenced imposed by section 389 of the Penal Code.
  3. The petitioner having been convicted on July 21, 2008, and having served a sentence in excess of seven years imprisonment, was to be released forthwith from prison, unless held for reasons not indicated in the instant petition.

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