Weekly Newsletter 039/2019



Kenya Law

Weekly Newsletter


There is need for the formulation of regulations to limit the exercise of the right to freedom of assembly, demonstration and picketing provided under article 37 of the Constitution
Ngunjiri Wambugu v Inspector General of Police, & 2 others [2019] eKLR
Petition No 269 of 2016
High Court at Nairobi
J A Makau, J
July 29, 2019
Reported by Moses Rotich
Download the Decision

 

Constitutional Law-constitutional petitions-form of a constitutional petition-duty of the petitioner to plead with reasonable precision-whether the petition disclosed breach of any fundamental rights-whether the petitioner had established a case for denial, infringement, violation or threat of the rights or fundamental freedoms in the Constitution-Constitution of Kenya, 2010, articles 22, 28, 29, 39, 40 & 258(1)

Constitutional Law-fundamental rights and freedoms-right to assembly, demonstration, picketing vis-à-vis the rights to own property, inherent human dignity and freedom and security of the person-whether the petitioner’s allegations of the infringement or threatened violation of the petitioner’s constitutional rights were related to the failure to regulate the exercise of freedom of assembly, demonstration, picketing and presentation of petitions to public authorities-Constitution of Kenya, 2010,  articles, 28, 29,37, 39 and 40.

Constitutional Law-fundamental rights and freedoms-limitations of the exercise of fundamental rights and freedoms-what was the impact of article 24 of the Constitution on limitation of rights and fundamental freedoms-whether the petitioner was justified in seeking limitations to the exercise of freedom of assembly, demonstration, picketing and petition-whether the Public Order Act provided a sufficient limitation to the right to demonstrate, picket and present petitions to public authorities-Constitution of Kenya, 2010, articles 19, 20, 24, 37; Public Order Act, sections 5, 13,& 22

Evidence Law- judicial notice-role and nature of-facts requiring no proof-instances where the Court would consider matters which evidence had not been submitted as proved-matters of general or local notoriety-whether, in absence of any replying affidavit or grounds of opposition by the respondents, the Court could take judicial notice of petitioner’s averments as proof of alleged violation of constitutional rights-Evidence Act, section 60
 

Brief facts:

The petition was triggered by numerous mass demonstrations that had been conducted in the month of April 2016 within the capital city, Nairobi and across the country. The petitioner gave a detailed narration of the nature of violation of the rights and freedoms that took place during the public demonstration, organized by the Coalition for Reforms and Democracy (CORD).
The petitioner further averred that the country had experienced loss of lives, injuries and destruction of property during protests and demonstrations. He stated that the demonstrators engaged in unlawful activities including lootings and massive destruction of property.
The petitioner asked the Court to declare, inter alia, that the fundamental right, under article 37 of the Constitution of Kenya, to assemble, demonstrate, picket, and present petitions to public authorities was conditional on the protestors or demonstrators conducting themselves peaceably and unarmed. Further, the petitioner asked the Court to issue orders directing the respondent to formulate and/or amend the requisite law and regulations to ensure that demonstrations were peaceful and held as per the Constitution.

 

Issues :

  1. Whether the petitioner had established a case for denial, infringement, violation or threat of the rights or fundamental freedom in the Constitution, in particular;
    1. the right to have human dignity respected and protected provided under article 28;
    2. freedom and security of the person protected under article 29;
    3. freedom of movement and residence under article 39; and,
    4. protection of the right to property under article 40.
  2. What was the role and nature of judicial notice?
  3. Whether, in absence of any replying affidavit or grounds of opposition by the respondents, the Court could take judicial notice of petitioner’s averments as proof of alleged violation of constitutional rights.
  4. Whether the petitioner’s allegations of the infringement or threatened violation of the petitioner’s constitutional rights under articles 28, 29, 39 and 40 of the Constitution were related to the failure to regulate the exercise of freedom of assembly, demonstration, picketing and presentation of petitions to public authorities.
  5. Whether the petitioner was justified in seeking limitations to the exercise of freedom of assembly, demonstration, picketing and petition.
  6. What was the impact of article 24 of the Constitution on limitation of rights and fundamental freedoms?
  7. Whether the Public Order Act provided a sufficient limitation to the right to demonstrate, picket and present petitions to public authorities provided under article 37 of the Constitution.
  8. Whether there was need for the formulation of regulations that would act as a limitation to the right to freedom of assembly, demonstration and picketing under article 37 of the Constitution.
  9. Whether the court had the power to grant the orders sought in the petition.

Relevant Provisions of the Law
The Constitution of Kenya, 2010
Article 37
Assembly, demonstration, picketing and petition

Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.


Article 40
Protection of right to property

1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property—

a) of any description; and
b)
in any part of Kenya.

The Public Order Act
Section 5
Regulation of Public meeting and Processions

1) No person shall hold a public meeting or a public procession except in accordance with the provisions of this section.
2)
Any person intending to convene a public meeting or a public procession shall notify the regulating officer of such intent at least three days but not more than fourteen days before the proposed date of the public meeting or procession.
3)
A notice under subsection (2) shall be in the prescribed form and shall specify—

a) the full names and physical address of the organiser of the proposed public meeting or public procession;
b)
the proposed date of the meeting or procession and the time thereof which shall be between six o’clock in the morning and six o’clock in the afternoon;
c)
the proposed site of the public meeting or the proposed route in the case of a public procession.

Section 13
Award of compensation to sufferers from misconduct of inhabitants of area declared under section 47 of Cap. 84

(1) If in any area, in regard to which any declaration issued under section 106 of the National Police Service Act is in force, death or grievous harm, or loss of or damage to property has been caused by, or has ensued from, the misconduct of the inhabitants of such area, or of any class or section of such inhabitants, any person who claims to have suffered loss, damage or injury by reason of such misconduct may, within one month from the date of such loss, damage or injury, make an application for compensation to a magistrate appointed under subsection (5) of the said section 47 or, where no magistrate has been so appointed, to a magistrate having jurisdiction within the district in which the declared area is situated.
 

Held:
  1. Articles 22 and 258(1) of the Constitution similarly provided that every person had the right to institute court proceedings claiming that a right or fundamental freedom in the bill of rights had been denied, violated or infringed or was threatened. The petitioner was exercising his constitutional rights on his own behalf and in public interest. The petitioner had clearly outlined the rights and freedoms in issue; the right to human dignity, freedom and security of person, freedom of movement and residence, right to own and acquire property, under articles 28, 29, 39 and 40 of the Constitution of Kenya respectively.
  2. As the respondent had not filed any replying affidavit or any grounds of opposition to controvert the petitioner’s averment, judicial notice was taken of the petitioner’s averments as sufficient proof that there were violations of the rights averred in the petitioner’s affidavit. Judicial notice was a court’s acceptance, for purposes of convenience and without requiring a party’s proof, of a well-known and indisputable fact. It was means by which the court might take as proven certain facts without hearing evidence. Notorious facts might be judicially noticed without inquiry. Section 60 of the Evidence Act mandated the court to take judicial notice of all matters of general or local notoriety (things that everyone knew).
  3. One need not wait for a violation of freedoms or rights to be breached to pursue an action under a constitutional petition. Threatening a right or freedom was sufficient for one to pursue an action in a constitutional petition.The petitioner had expressed an apprehension, based on the fact that CORD demonstrators set a precedent, that in future exercise of the freedom of assembly, there would still be no regard for the rights of non-demonstrators and that their rights to equal protection of the law would be violated. That apprehension of the petitioner for future violations of those rights was reasonably justified. The petitioner was also justified in seeking the reliefs he sought.
  4. The right to assemble, demonstrates, picket, and present petitions to public authorities peaceably and unarmed under article 37 of the Constitution was regulated by the Public Order Act (the Act). Section 5 required public meetings to be held in accordance with the Act. Section 5 further elaborated that due notice in prescribed form ought to be given to a regulating officer by the organizer. Regulating officer was defined under section 2 of the Act as a police officer in charge of a police station in an area where a public meeting was proposed to be held. The organizer was required at all times to be present and assist the police on maintenance of law and order. Section 6 of the Public Order Act clearly provided that no one in the public process should have an offensive weapon except a duly authorized police officer.
  5. Section 22 of the Public Order Act empowered the 2nd respondent to make regulations prescribing anything which might be prescribed under the Act, and generally to give effect to the provisions of the Act. Despite that empowerment, the 2nd respondent failed to develop any meaningfulregulations to give full effect to the provisions of the Public Order Act, which would otherwise have protected or prevented violation of non-demonstrators’ rights and also hold the organizers accountable or make them more responsible for any destruction of property or violence.
  6. Rights could only be enjoyed to the extent that they did not interfere with other people’s rights as constitutional rights and freedoms of the individual were subject to limitations. They were not absolute. Those rights were designed to ensure that they did not prejudice the rights and freedom of others or public interest as all parties’ rights should be treated equally and given equal protection. Accordingly, there should be an element of deterrence that would guide demonstrations and demonstrators to maintain peace, law and order. There was likelihood that in absence of further regulation on the exercise of the freedom, demonstrators would most likely not maintain peace, law and order. The petitioner had successfully demonstrated a direct linkage between the violations of rights under articles 27, 28, 29, 39 and 40 and the exercise of freedom of assembly under article 37 of the Constitution.
  7. Limitation of constitutional rights might exist within the Constitution or outside. An internal limitation was embodied in the constitutional definition of the right.Under article 37 of the Constitution, the definition of the freedom of assembly included such a limitation that the same ought to be done peacefully and unarmed. External limitations were anchored in legislation aimed at public policy, national security, public order and protection of others. To that regard, the Public Order Act and Penal Code, with provisions related to unlawful assembly, were the relevant external limitations.
  8. Article 20(2) of the Constitution provided that every person should enjoy the rights and fundamental freedoms in the bill of rights to the greatest extent consistent with the nature of the right or fundamental freedom. That generally meant that limitations were the exception as the constitutional concern was a situation where there was enjoyment of the rights and freedoms to the greatest extent, though the Constitution contemplated that indeed there might be some limitations in certain circumstances. Article 19(3) of the Constitution provided that the rights and fundamental freedoms in the bill of rights were subject only to the limitations contemplated in the Constitution. That brought about the idea that some of the rights under the Constitution might be limited even though they were inherent to all.
  9. The petitioner’s contention that the freedom of assembly could be limited because it did not fall under the list of rights entrench under article 25 of the Constitution was stretched far. The freedom of assembly could not be limited merely by looking at article 25 of the Constitution. Article 19 of the Constitution was clear that the bill of rights was an integral part of Kenya’s democratic state and was the framework of social, economic and cultural policies. The purpose of recognizing and protecting human rights and fundamental freedoms was to preserve the dignity of individual and communities and to promote social justice and the realization of the potential of all human beings. Rights and fundamental freedoms in the bill of rights belonged to each individual. They were not granted by the state, and did not exclude other rights and fundamental freedoms not in the bill of rights, but recognized or conferred by law, except to the extent that they were inconsistent with chapter four of the Constitution. Those rights were subject only to limitations contemplated in the Constitution.
  10. Article 37 of the Constitution, which provided that every person had the right, peacefully and unarmed, to assemble, demonstrate, picket and present petitions to pubic authority, had an internal limitation. The rights and freedoms in the bill of rights could be limited in the interest of national security, the safety, health, ethics and rights and freedom of others as provided under article 24 of the Constitution as read with article 21 of the International Covenant on Civil and Political Rights (ICCPR) and article 10 of the Banjul Charter.
  11. Article 24 of the Constitution created a proportionality test that called upon the court, in determining whether a limitation was justified, to strike a balance between an individual’s right and the community interest. In so doing, a court was required to determine the purpose and importance of the limitation; the relationship between the limitation and its purpose; and, whether there were less restrictive means to achieve the purpose intended.
  12. Subjected to the proportionality test, the instant proposed limitations were justified because they were keen on ensuring that the right of other persons especially under article 27, 28, 39 and 40 of the Constitution were not breached or infringed on during the exercise of freedom of assembly under article 37. If implemented, the limitation would help the state in achieving objectives of article 20 and 21 of the Constitution in ensuring that the rights were respected, protected, promoted, and fulfilled. The limitations were important to prevent the infringement or breach of rights of other persons. Granting the orders sought in the instant petition would prevent loss of lives, destruction of property, general public disorder and all other negative effects, given that freedom of assembly and equality introduced a form of accountability in the event that the negative effects occurred.
  13. The limitation was also meant to deal with the challenges of administratively policing demonstrations and not to deny the right to assembly as provided under article 37 of the Constitution.For example, under the Public Order Act, an organizer was expected to notify the police whenever such demonstration was required. The regulation could specify the full organizer’s details which should be captured to ensure that in the event of loss of lives and destruction of property, then they were liable. The notifications, as they were, did not take into account the full details of the organizers.
  14. Section 13 of the Public Order Act contemplated solutions in which persons affected by misconduct of inhabitants in an area declared, in a Gazette notice in accordance with section 106 of the National Police Service Act, to be in a disturbed or dangerous state might be compensated for losses of lives or damage to property. It was clear that the section was only applicable where the relevant minister had made a declaration under section 106 of the National Police Service Act. Section 106 of the National Police Service Act needed to be expanded to cover all demonstrations especially where there was loss of lives and property. It would go a long way to compensate for loss of lives and property, and would be a form of realization of right to own property. It would also result in restraint exercise of freedom of assembly without affecting the right to peaceful, unarmed assembly and its expression. The proposals made in the instant petition were not ill intended but sought to serve a greater good to protect the public interest to wit the enjoyment of rights under articles 27, 28, 39 and 40 of the Constitution. The proposals satisfied the proportionality test under article 24 of the Constitution.
  15. The right to assemble and demonstrate was a constitutional right that was recognized nationally and under international and regional human rights law. That right belonged to each individual. The government, under article 21(1) of the Constitution, was obligated to respect, promote and protect the rights of the individuals to assemble peacefully and associate, among other rights. Protests played an important part in the civil, political, economic, social and cultural life of all societies. Protests encouraged development of an engaged and informed citizenry.
  16. It was of paramount importance that in exercise of the right to demonstration, picketing, and assembly not to interfere with the rights of other citizens. It was no longer a secret that demonstration, picketing, assembly had escalated from peaceful and unarmed gathering to a violent, unruly and unlawful gathering which ended up clouding the real agenda for demonstration and in which every member of the gathering took the law into their own hands. Lives were usually lost and property damaged or looted. That was a justified case to have regulations in force to limit the right to picket, demonstrate and present petitions to public authorities. It would be antithesis of constitutional values and principles if picketers and demonstrators were allowed to participate in non-peaceful demonstrations or picketing whilst armed to the teeth with implements set to agitate and stimulate anguish against non-demonstrators or against anyone they came across as well as destroying properties at will.It was therefore no surprise when the Constitution itself limited the right to assemble, to demonstrate, to picket and present petitions to public authorities.
  17. The demonstrators, picketers and petition-presenters were constitutionally obligated to enjoy their right peacefully and unarmed. The Constitution had spoken loudly and clearly that assemblies, picketing and demonstrations which were not peaceful and demonstrators who were armed were excluded from the protection of article 37.If they consisted of violence or intimidation of the public, then the assembly or demonstration ought to be stopped.Weapons as well as defensive or protective contraptions which bred or stimulate aggression ought not to be in possession of the demonstrators or picketers.
  18. Even though the limitations were necessary, they ought to meet the threshold outlined in article 24 of the Constitution. The purpose of article 24 was to enable rights to be prudently limited to the extent necessary to protect the public good and the rights of others without undermining essential human rights or other civil liberties that provided the foundation of a free society. The rights under article 37 of the Constitution could be protected by ensuring it did not limit or infringe individual rights or other rights through legislation as provided for in article 24.
  19. The Public Order Act did not limit the right to demonstrate, picket or assemble under article 37 of the Constitution. Its purpose was to seek to preserve and protect the right to public assembly, public protest marches or procession by regulating the same with a view to ensure maintenance of law and order. Part III of the Public Order Act sought to regulate public meetings and procession by providing for the need to notify the police service and also the power of police service to prevent a public meeting where appropriate and where it was obvious it would not meet the constitutional objections. The Act prohibited the possession of offensive weapon at public meetings, and processions. As such, there was no law that limited the right under article 37 of the Constitution.
  20. Other jurisdictions including South Africa and Australia had formulated the regulations on demonstrations. South Africa had enacted Regulation of Gathering Act that gave effect to a constitutional right to assemble, demonstrate, picket and present petitions peacefully and unarmed. Similarly, Australia had Trade Practices Act which limited the right to picket. Kenya could rightly borrow a leaf from South African and Australian experience by developing regulations, which would enable the maintenance of law and order in the country during demonstrations, picketing or presentation of petitions to public authorities.
  21. Section 22 of the Public Order Act empowered the relevant minister to make regulations prescribing anything that might be prescribed under the Act and generally to give effect to the provisions of the Act.Formulation of regulations that would limit the right to picket, demonstrate and present petitions under article 37 of the Constitution was of utmost importance. It would help in resolving the dilemma that had failed the country in managing, controlling and containing the violent demonstration that threatened the peace of the country at times of demonstration, picketing or presenting petitions to public authorities.
  22. The petitioner asked the Court to order legislation to be enacted to give effect to the bill of rights as far as the limitation on the freedom of assembly was concerned. The Court could issue any appropriate remedy as prayed or on its own terms. The Constitution offered alternatives to granting the orders sought. The fact that parliament or executive held or had power to deal with certain issues did not mean that the court’s hands were tied and had to sit back and do nothing. The Court could issue appropriate and just orders. Accordingly, the instant Court had jurisdiction and power to grant the orders sought, and any other appropriate remedies that it might find fit and just to issue.
Petition allowed.
Orders;
  1. A declaration issued that the fundamental right under article 37 of the Constitution to assemble, demonstrate, picket and present petitions to public authorities was conditional on the protestors or demonstrators conducting themselves peaceably and unarmed; and that police officers working under the 1st respondent were duty bound to immediately stop protestors or demonstrators if they were armed with any form of weapons including stones or any offensive weapon of whatever nature.
  2. A declaration issued that the petitioner and non-demonstrators/third parties enjoyed equal rights and freedoms during demonstrations since their rights and fundamental freedoms were not suspended during such times.
  3. An order issued directing the respondents to formulate and/or amend the requisite law and regulations to ensure that demonstrations were peaceful and held as per the Constitution including, inter alia, prescriptions for demarcation of demonstration zones, responsibilities for clean-up costs, maximum numbers, consents of persons/entities adjacent to demonstration zones with appropriate penalties when they go outside the expectations of the law.
  4. An order issued directing the respondents to formulate a code of conduct for convenors of demonstrations that included detailed explanations of how they intended to ensure non-demonstrators were not adversely affected by such demonstrations and that provided a clear line of responsibility of who was liable in case of loss to life or property, or for injury when a member of the public was aggrieved due to such demonstration.
  5. Each party to bear own costs.
Kenya Law
Case Updates Issue 039/2019
Case Summaries

CONSTITUTIONAL LAW Sections 3, 4 and 7 of the Proceeds of Crime and Anti-Money Laundering Act creating offences on money laundering are constitutional

Felix Kiprono Matagei v Attorney General & 2 others; Anthony Kihara Gethi (Interested Party) [2019] eKLR
Petition No 304 of 2016
High Court at Nairobi
P J O Otieno, J.
July 1, 2019
Reported by Moses Rotich

Download the Decision

Constitutional Law-fundamental rights and freedoms-constitutionality of sections 3, 4, and 7 of the Proceeds of Crime and Anti-Money Laundering Act creating offences on money laundering and dealing with proceeds of crime-claim by the petitioner that the provisions were over-broad, ambiguous, imprecise, and uncertain-validity of such claim-whether sections 3, 4 & 7 of the POCAMLA which created offences on money laundering and dealing with proceeds of crime was unconstitutional for being ambiguous, imprecise, and uncertain-Constitution of Kenya, 2010, articles 2(4), 3, 10, 27, 40, 50 & 249; Proceeds of Crime and Anti-Money Laundering Act, sections 3, 4 & 7
Constitutional Law-fundamental rights and freedoms-enforcement of-whether a constitutional petition could be a substitute for appeals, revision or supervision by a senior court-where a petitioner sought to challenge a subordinate court’s decision by way of a constitutional petition-whether a court’s decision could form the basis of a violation of a right or fundamental freedom-whether an error by a subordinate court could be challenged by way of a constitutional petition-Constitution of Kenya, 2010, articles 3 &23; Magistrate Courts’ Act, section 8.
Civil Practice and Procedure- res judicata-judicial estoppel-bar against bringing proceedings by similar parties regarding the same subject matter-a claim that the issues in the petition had been determined in earlier judicial review proceedings-whether the instant the petition was res judicata for having been heard and determined in JR No 102 of 2016, Republic v the DPP and another, exparte Patrick Ogola Onyango and 9 others.

Brief Facts:
The petition challenged the constitutionality of sections 3, 4, and 7 of the Proceeds of Crime and Anti Money Laundering Act 2009 (the POCAMLA) for being over-broad, ambiguous and over-reaching. The petitioner further contended that the state of the vague and lazy definitions of the criminal offences created by the impugned provisions left it to the courts to do subjective assessment to reach an acquittal or conviction thus further affronting the principle that legislation should be clear, precise and unambiguous on what was prohibited.
The petitioner, therefore, urged the Court to declare sections 3, 4 & 7 of the POCAMLA unconstitutional for infringing articles 2(4), 3, 10, 27, 40, 50 and 249 of the Constitution.

Issues:

  1. Whether the petition was res judicata for having been heard and determined in JR No 102 of 2016, Republic v the DPP and another, exparte Patrick Ogola Onyango and 9 others.
  2. Whether a court’s decision could form the basis of a violation of a right or fundamental freedom.
  3. Whether an error by a subordinate court could be challenge by way of a constitutional petition.
  4. Whether sections 3, 4 & 7 of the POCAMLA which created offences on money laundering and dealing with proceeds of crime was unconstitutional for being ambiguous, imprecise, and uncertain. Read More..

Relevant provisions of the law
Proceeds of Crime and Anti Money Laundering Act, 2009
Section 3
3. Money laundering
A person who knows or who ought reasonably to have known that property is or forms part of the proceeds of crime and—
(a)enters into any agreement or engages in any arrangement or transaction with anyone in connection with that property, whether that agreement, arrangement or transaction is legally enforceable or not; or
(b)performs any other act in connection with such property, whether it is performed independently or with any other person,
whose effect is to—

(i) conceal or disguise the nature, source, location, disposition or movement of the said property or the ownership thereof or any interest which anyone may have in respect thereof; or
(ii) enable or assist any person who has committed or commits an offence, whether in Kenya or elsewhere to avoid prosecution; or
(iii) remove or diminish any property acquired directly, or indirectly, as a result of the commission of an offence, commits an offence.

Section 4
4. Acquisition, possession or use of proceeds of crime
A person who—

(a)acquires;
(b)uses; or
(c)has possession of,
property and who, at the time of acquisition, use or possession of such property, knows or ought reasonably to have known that it is or forms part of the proceeds of a crime committed by him or by another person, commits an offence.

Section 7
7. Financial promotion of an offence
A person who, knowingly transports, transmits, transfers or receives or attempts to transport, transmit, transfer or receive a monetary instrument or anything of value to another person, with intent to commit an offence, that person commits an offence.

Held:

  1. For the plea of res judicata to be properly invoked, the person so invoking it had a duty to prove that there was previous proceedings between the same parties or parties under whom they litigated and that the matter in the subsequent suit was directly or substantially in issue in the previous suit and was determined on its merits by a court of competent jurisdiction.
  2. The instant petition and the previous proceedings in JR 102 of 2015 sought to forbid the prosecution of the petitioner as well as the interested parties with others in criminal cases No 301 and 1905 of 2015. The core issue in the cited judicial review proceedings was whether a charge on money laundering could be sustained by a trial court prior to a judicial determination on whether the money involved was a proceed of crime. In contradiction, the issue in the instant proceedings was whether the statutory provisions creating the offences were constitutional or not. On that score alone, the issues before the instant Court were never litigated in the cited judicial review proceedings and could not have been in issue in those proceedings. Accordingly, the instant petition was not res judicata.
  3. A constitutional petition should not be a substitute for appeals, revision or supervision by a senior court. Indeed, the High Court could not arrogate to itself the duty to micro-manage the subordinate courts as to appear to adjudge the lower courts as wholly unable to undertake their duty of dispute resolution in accordance with the law. Even with the power to supervise the subordinate courts, those courts should be allowed to execute their mandate without undue and unnecessary and incessant disruption. That was not to say that an outright error or overstepping of mandate would not attract swift and merited intervention by the High Court.
  4. If there were a demonstrated over-reaching by the legislature, there would be issued an appropriate declaration on the propriety of the impugned provisions. However, where what the court was asked to do was that which the trial court could handle, then that ought to await the final decision and be challenged in the regular way by way of appeal or revision. In fact, even where the proceedings progress to conclusion and it was demonstrated later that the accused suffered an infringement of a right or freedom in process, such an accused was not left without remedies. There was always the remedy in damages. In addition, article 23(2) of the Constitution as effected by section 8 of the Magistrate Courts’ Act provided other remedies to such an accused person.
  5. Proceedings before a court of law and any decision arrived thereby or feared to be capable of being arrived at could not be the basis of an independent constitutional petition. Such ought to be dealt with by the trial court which the law allowed to take submission on such threats or by way of an appeal or review. A subordinate court was entitled to investigate an allegation of violation of right or denial of a fundamental freedom founded on a matter before it, being bound by article 3 of the Constitution to respect, uphold and defend the Constitution and its values.
  6. A wrong by a subordinate court was corrected by an appeal or review but not by a separate constitutional petition. The logic and justification for that rule was that to leave every decisional error by a subordinate court to be challenged by a petition would be to not only unduly engage judicial time but also upset the well-established modes of challenging erroneous decisions.
  7. When the High Court was called upon to consider the constitutionality of a legislation, the tasks of the court remained the focused aim of looking at the plain words of the statute in line with its declared objects and purposes and decide whether there was any demonstrated departure from the dictates of the Constitution or if there was evident affront or violation. The court was not expected to pursue any other purpose beyond finding the true meaning of the enactment and its conformity with the Constitution. The court did not have any liberty to exercise a free hand to give a meaning that was inconsistent with the intention of parliament. That constraint ought to be seen as flowing from the established presumption that every statute was deemed constitutional unless and until the contrary was proved.
  8. Section 3, 4 and 7 of the POCAMLA clearly demanded that one could only be found guilty of the offences of money laundering if the prosecution proved that the accused knew, should have known or ought to have known the obvious acts of laundering and dealing with the proceeds of crime in a manner outlawed.
  9. Sections 3, 4 and 7 of the POCAMLA created clear offences with definite ingredients. As drafted and legislated, the Act was beyond reproach, at least not on the provisions subject of the instant petition.

Petition dismissed; each party to bear own costs.

CONSTITUTIONAL LAW A judge can recuse him/herself where one of the party’s advocate makes remarks to the effect that justice was not being dispensed to his/her clients

Mohamud Iltarakwa Kochale & 5 others (Suing on behalf of the residents of Laisamis Constituency and Karare ward of Marsabit County) v Lake Turkana Wind Power Ltd & 4 others; Aaron Iltele Lesiantam & 4 others (Interested Parties) [2019] eKLR
ELC Case 163 of 2014 (Formely Nairobi ELC 1330 of 2014)
Environment and Land Court at Meru
B N Olao, L N Mbugua & E C Cherono, JJ
July 24, 2019
Reported by Kakai Toili

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Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms – right to fair trial – conducting of court proceedings in the absence of all parties - where witnesses and the court assistant were threatened for their role in a case - whether a court could conduct its proceedings in the absence of all the parties in order to expedite the case - Constitution of Kenya, 2010, article 50 (8)
Judicial Officers - judge – recusal of a judge – self recusal of a judge – factors to consider - where one of the party’s advocate made remarks to the effect that the court was not dispensing justice to his/her clients - whether a court could recuse itself where one of the party’s advocate made remarks to the effect that the court was not dispensing justice to his/her clients
Advocates – duties of advocates – duty to the court – nature of - what was the nature of an advocate’s duty to a court

Brief facts:
The Court delivered a ruling directing that the instant suit, which was about to come to an end with only two witnesses remaining, be heard in the absence of all the parties. The said ruling was made following a complaint raised both the counsel for the interested parties and the court assistant. It was alleged that there was a video recording that was circulated meant to intimidate the witnesses. The court assistant alleged that she had been accosted by persons asking her to step aside from interpreting in the instant case. Soon after delivery of the said ruling, the plaintiffs’ counsel complained that excluding the parties from the proceedings was drastic and exceptional. Counsel for the plaintiffs stated that they were not willing to proceed without the involvement of the plaintiffs and that the Court had taken the role of both investigator and prosecutor. He also stated that the Court was a court of law and not for the interested parties or their counsel. The plaintiffs’ counsel therefore sought an adjournment in order to seek a review of the ruling.

Issues:

  1. Whether a court could conduct its proceedings in the absence of all the parties in order to expedite the case.
  2. Whether a court cold recuse itself where one of the party’s advocate made remarks to the effect that the court was not dispensing justice to his/her clients.
  3. What were the factors a court should consider in determining whether to recuse itself?
  4. What was the nature of an advocate’s duty to a court? Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 50 (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.

Held:

  1. The Court had always endeavored to expedite the instant case by giving it priority. The decision to direct that the instant case continued in the absence of all the parties was informed by the fact that the overriding interest in the case was to expedite the trial taking into account the concerns raised in the letter addressed to the Chief Justice that parties had to travel over 600 kilometers to attend court and that they had been doing so diligently since October 2014. The Court had the option of adjourning the case while the police investigated the serious allegation by the court assistant because witnesses and court officers could not be expected to continue participating in a case when their security was at risk. In order for the remaining witnesses to be able to testify freely, and since the person who was circulating the offending video recording or intimidating the court assistant was not known, the better option was to exclude all the parties from the court room. The order was for the exclusion of all the parties.
  2. The word of the counsel for the interested party was not taken as gospel truth, that was why the order was to exclude all the parties. The complaint by the court assistant was made in chambers when the court had retired to write its ruling. The court assistant was already shaken and distraught when she narrated the incident and even requested to be relieved of her duties. It was not always that court assistants followed judicial officers to chambers to complain about being harassed by litigants. There was therefore no reason to doubt the veracity of her complaint.
  3. The Court did not go further to investigate the complaint or direct for any prosecution. The Court looked at the bigger picture of expediting the trial and requested the court assistant to continue serving which she agreed. Had she declined to continue serving, the case would have had to be adjourned to enable the Registrar appoint another Samburu interpreter. The court assistant was sourced from Isiolo court specifically to do interpretation in the instant case. In the circumstances, it was difficult to understand the complaint that the Court had acted both as an investigator and prosecutor. All that the Court did was to hear the complaint and make orders which would expedite the trial. At no time did the Court direct that any persons be summoned, investigated or prosecuted.
  4. All the remarks and innuendos by the plaintiffs’ counsel taken together made it clear that although counsel for the plaintiffs was addressing the Court on an application for adjournment, it had become obvious that both he and his clients had no faith in the Court dispensing justice to them. It was scandalous when counsel referred to the Court as a court for the interested parties, a court that acted both as investigator and prosecutor, a court that acted at the behest of one party and a court that acted in a casual manner.
  5. There would be no fair hearing if some of the parties were intimidated while in court. That was why the order to exclude the parties did not refer to the plaintiffs only; it referred to all the parties. In any event, the Court had the jurisdiction to eject any party whose conduct could impede the fair hearing of the case.
  6. No application had been made by any party for the Court’s recusal. The very strong language employed by the plaintiffs’ counsel in describing the Court, cast aspersions on the Court’s impartiality to dispense justice to the plaintiffs. From the description of the Court by counsel for the plaintiffs, the perception created in the minds of his clients was that they were unlikely to get justice in the court which they would view, inter alia, as a court favouring the interested parties. Justice had to not only be done, but also be seen to have been done.
  7. The submissions by counsel for the plaintiffs taken in their natural meaning, suggested that the Court was already biased against his clients. Under the Bangalore Principles of Judicial Conduct, a judge was required to perform his or her judicial duties without favour, bias or prejudice. It was no longer tenable to continue hearing the case in view of the very unfortunate remarks that the plaintiffs’ counsel had used in describing the Court.
  8. A court which had to decide an issue of self-recusal had to do a balancing exercise. On the one hand, the court had to consider that self-recusal aimed at maintaining the appearance of impartialities and instilling public confidence in the administration of justice. On the other hand, a court had a duty to sit in the cases assigned to it and could only refuse to hear a case for an extremely good reason. Any objective person, including the plaintiffs, listening to the very unfortunate remarks by the plaintiffs’ counsel, would take the view that the Court was unlikely to be impartial. That was an extremely good reason to warrant recusal.
  9. Whereas a counsel owed a duty to his client, he also had an overriding duty to the court, that duty demanded of him to conduct himself with decorum and to maintain the dignity required of his professional standards. The plaintiffs’ counsel had fallen far short of those standards.

The Court recused itself from further handling the case.

CRIMINAL LAW Courts have the discretion to depart from prescribed minimum sentences when sentencing convicted persons

John Kagunda Kariuki v Republic
Miscellaneous Criminal Application 88 of 2019
High Court at Nakuru
J Ngugi, J
July 17, 2019
Reported by Ian Kiptoo

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Criminal Law – sentencing – mandatory sentences - prescribed minimum sentences – exercise of courts discretion - whether Courts had discretion to depart from prescribed minimum sentences when sentencing convicted persons

Brief Facts:
The applicant was charged with the offence of defilement under the Sexual Offences Act. He was tried, convicted and sentenced to a minimum sentence of twenty (20) years imprisonment under section 8(3) of the Sexual Offences Act. The applicant sought for a review of his sentence after his appeal was dismissed in its entirety.
The applicant claimed that the High Court had jurisdiction to re-sentence him and wished to serve the remainder of his sentence in probation rather than in Prison.

Issues:

  1. Whether courts had discretion to depart from prescribed minimum sentences when sentencing convicted persons.
  2. Whether persons sentenced to death pursuant to mandatory provisions were entitled to new sentence hearings by the High Court following the Court of appeal’s decision in the Dismas Wafula Kilwake v R [2018] eKLR case.Read More...

Held:

  1. In theFrancis Karioko Muruatetu & another v Republic [2017] Eklr case. The Supreme Court outlawed mandatory death penalty for murder as unconstitutional and struck down section 204 of the Penal Code to the extent that it prescribed mandatory death sentence upon conviction for murder. The reasoning in the Muruatetu Case respecting section 204 of the Penal Code (the penalty section for murder) had been extended by the Court of Appeal to the mandatory death penalty in robbery with violence cases and probably all other similar mandatory death sentences. Furthermore, the reasoning was also extended to sentences imposed by the Sexual Offences Act – and possibly all other statutes prescribing minimum sentences by the Court of appeal.
  2. The Dismas Wafula Kilwake v R [2018] eKLR progressive decisional law required courts to pay attention to individual aspects of the case while sentencing even for convictions under the Sexual Offences Act which had prescribed minimum sentences. Where there were compelling reasons to depart from the prescribed minimum, which was treated as indicative of the sentence to be imposed, the court could impose a different sentence.
  3. Unlike the decision in Muruatetu case and other cases where the death penalty was imposed, the Dismas case did not operate retroactively. It was a decision given the ordinary common law mode which did not entitle all other people who could have benefitted from the new development in decisional law to approach the High Court afresh for review of the sentences imposed. Instead, the principles announced in the case would apply to future cases. In other words, persons whose appeals had already been heard by the High Court were not entitled to file fresh applications for re-sentencing in accordance with the new decisional law. To reach a different conclusion would lead to an ungovernable situation where all previously sentenced prisoners would seek review of their sentences.
  4. Only prisoners who had been sentenced to death pursuant to mandatory provisions of the law were entitled to new sentence hearings. For all others, they were entitled to urge the new decisional law in their appeals in a bid to get lower sentences and no more. They could not bring new applications for re-sentencing. In the instant case, the applicant’s appeal had already been heard by the High Court. He could not return to the High Court for a review of the sentence imposed. He was at liberty to make an argument for reduced sentence at the Court of Appeal. The applicant could not, in the circumstances of the case, benefit from the doctrine propounded in the Muruatetu Case.

Application dismissed.

JURISDICTION The Supreme Court does not have the jurisdiction to interfere with exercise of discretion by the Court of Appeal to stay a High Court judgment pending determination of its appeal where there was no appeal pending before it

Okiya Omtatah Okoiti v Sicpa Securities Sol Sa & 2 others [2019] eKLR
Application No. 15 of 2018
Supreme Court of Kenya
P M Mwilu DCJ & VP; M K Ibrahim, S C Wanjala, N Njoki & I Lenaola, SCJJ
July 23, 2019.
Reported by Kakai Toili

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Jurisdiction – jurisdiction of the Supreme Court – jurisdiction over exercise of discretion by the Court of Appeal – where the Court of Appeal stayed a judgment of the High Court pending determination of its appeal - where there was neither an appeal nor an intended appeal pending before the Supreme Court - whether the Supreme Court had the jurisdiction to entertain applications challenging the exercise of discretion by the Court of Appeal to stay a judgment of the High Court pending determination of its appeal - what were the circumstances in which the Supreme Court could entertain an application challenging the exercise of discretion by the Court of Appeal to stay a judgment of the High Court pending determination of its appeal – Constitution of Kenya, 2010, article 164(3); Court of Appeal Rules, 2010, rule 5(2)(b)

Brief Facts:
The 2nd respondent through a public notice announced that with effect from November , 2017, bottled water, juices, soda and other non-alcoholic beverages and cosmetics manufactured or imported into Kenya had to be affixed with excise stamps. Aggrieved by the 2nd respondent’s action the applicant filed a constitutional petition at the High Court challenging the legal instrument whose contents were part of the public notice. The High Court decided that the Legal Notice in question was enacted in a manner inconsistent with the Constitution and the Statutory Instruments Act on account of want of adequate public participation prior to its enactment. Aggrieved by that decision, the 2nd and 3rd respondent filed an appeal at the Court of Appeal and also applications seeking to stay the execution of the judgment of the High Court pending the hearing and determination of their appeals. The Court of Appeal allowed their application for stay.
Aggrieved by the Court of Appeal’s decision, the applicant filed an application seeking among other orders for stay of the orders granted by the Court of Appeal in Civil Application No. 76 of 2018 (UR 67/2018) consolidated with Civil Application No. 78 of 2018 (UR 68/2018). The 3rd respondent subsequently filed an application seeking among others orders that the applicant’s application be struck out. The 1st respondent filed a notice of preliminary objection seeking to strike out the applicant’s application on grounds that the Court lacked jurisdiction to hear and determine an application challenging the exercise of discretion by the Court of Appeal under rules 5(2) (b) of the Court of Appeal Rules among other grounds.

Issues:

  1. Whether the Supreme Court had the jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal to stay a judgment of the High Court pending determination of its appeal where there was no appeal pending before it.
  2. What were the circumstances in which the Supreme Court could entertain an application challenging the exercise of discretion by the Court of Appeal to stay a judgment of the High Court pending determination of its appeal?Read More...

Relevant Provisions of the Law
Court of Appeal Rules, 2010
Rule 5 – Suspension of sentence, injunction and stay of execution and stay of further proceedings
2) Subject to sub-rule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may—

2) in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 75,

order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just.

Held:

  1. The jurisdiction of the Court was limited, jurisdiction flowed from the Constitution and legislation. Rule 5(2)(b) of the Court of Appeal Rules(Rules) was derived from article 164(3) of the Constitution and it illuminated the Court of Appeal’s inherent discretionary jurisdiction to preserve the substratum of an appeal. There would be a pending or an intended appeal, as a basis to entertain an application for stay of execution and the Court lacked jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under rule 5(2)(b) of the Rules where there was neither an appeal, nor an intended appeal pending before the Court.
  2. The issues raised in the application by the applicant had not been adjudicated upon by the Court of Appeal. The appeals were indeed still pending in the Court of Appeal, there was no judgment by the Court of Appeal in which constitutional issues or matters of general public importance had been canvassed. Interlocutory applications filed under rule 5(2) (b) of the Rules were not appeals as envisaged by article 164(3) of the Constitution.
  3. The applicant made an application dated July 23, 2018 seeking the Court of Appeal to vary or rescind its order granted on May 11, 2018, such conduct amounted to an abuse of court process. An applicant should have first pursued the application in the Court of Appeal to avoid conflicting decisions from the Court and the Court of Appeal.
  4. If the Court were to follow the decision in Deynes Muriithi & 4 others v. Law Society of Kenya & another [2016] eKLR, which it did not, the applicant had not demonstrated that the decision of the Court of Appeal had the effect of disposing of the substratum of the substantive matter before the High Court. He had not demonstrated that the order of the Court of Appeal had a pre-emptive effect on the appeals pending in the Court of Appeal.
  5. The notice of preliminary objection was mainly challenging the jurisdiction of the Court to entertain the application by the applicant which was a pure point of law. There were no contested facts that needed to be ascertained in determining the issue of jurisdiction.
  6. There was no application in the instant matter for two reasons;
    1. the Court was unable to categorize the application as constitutional litigation;
    2. all the respondents had expended their resources in defending the applicant’s application.

    It was important for an applicant to be mindful of the cost implication in litigation before embarking on that journey.

Applicant’s application dismissed, notice of preliminary objection upheld and 3rd respondent’s application allowed; applicant to bear the costs of all the respondents in all the applications

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