The Kenya Law Reports Weekly Newsletter | LEGAL BRIEF | Issue 030 | Tuesday 18, November 2008

SIX TO HANG FOR KILLING OF SUSPECTED “WITCH”

Reported by Michael Murungi

Haron Kimathi Mbui & 8 others v Republic [2008] eKLR(www.kenyalaw.org)
Court of Appeal at Nyeri
Appeal Judges E.O. O’Kubasu, E.M. Githinji & J. Aluoch.
October 31, 2008

Six men who participated in the fatal beating of a woman they had accused of casting a spell of insanity on one of them are to suffer death after the Court of Appeal dismissed their appeal against their conviction for murder. Three others escaped the hangman’s noose because they were aged 17 years. As the law forbids the imposition of a death penalty on a minor, they are to be detained at the pleasure of the President.

The evidence, according to the Court of Appeal, was “rather disturbing and distressful”. On October 23, 2002, Ms. Glory Kendi was asleep in her home in Kararene village of Meru Central District when she was woken up by a group of men who were banging on her door. She recognized at least four of the appellants among the group. In the house, she was with her sister Ms. Catherine Nkirote and a Ms. Stella Kinya who had a young baby. The men assaulted Stella and Nkirote as they accused Stella of having bewitched one of them whom they said had gone mad. Stella appeared not to know what they were talking about. They nevertheless forced her to leave with them, ostensibly to a nearby Chief’s camp but she returned home the following morning. About two weeks later just after midday, there was another attack at the home. This time, the attackers were armed with whips, sticks and rungus. They forcibly took Stella and her husband and began to march them towards a nearby Chief’s camp. However, they broke the journey when the came to a swampy place where they assaulted Stella with the weapons, stuffing soil into her mouth, tearing her external genitalia with sticks and strangling her to death. As it turned out, the assailant who was said to have been bewitched was later examined by a doctor and found to be of sound mind.

The prosecution called four eye witnesses, a police officer who had received the report of Stella’s killing as well as a doctor who produced a report of the post-mortem examination of Stella’s body which certified the cause of death as asphyxia due to strangulation. In their defence against the charge of murder, each appellant had stated that he was not involved in the killing. Each one of them had raised the defence of alibi, that he was elsewhere at the time that the offence was said to have been committed. Ultimately, Justice I. Lenaola considered the evidence and the submissions of the advocates and came to the conclusion that the killing of Stella, who was an otherwise “prayerful” person, was a scheme planned by one of the appellants and executed by all the appellants in broad daylight, save for one of them whom he acquitted. The other nine were convicted of murder and sentenced to death.

In their appeal against the judgment, the nine appellants had the benefit of an advocate obtained for them by the state, namely Mr. Ken Muriuki.  Among other grounds raised by the advocate in the appeal, he argued that the evidence of the identification of the appellants was not reliable and that the High Court had made an error when it had failed to give its reasons for differing with the two assessors in the case who had formed the opinion that the appellants were not guilty. The advocate further submitted that the High Court was wrong in convicting the appellants of murder when it had not been established that at the time of the events leading to Stella’s death, they had malice aforethought, which is a key ingredient to a charge of murder. The appeal was defended on behalf of the state by Mr. C.O. Orinda, Principal State Counsel.

The duty of a court hearing a first appeal is to reconsider the evidence, re-evaluate it and come to its own conclusions, bearing in mind that it did not have the same opportunity the trial court had of seeing and hearing from the witnesses in person. The Court of Appeal reminded itself of this duty as it considered the submissions of the two opposing counsel in the appeal. Firstly, the Court did not find any reason for upsetting the findings of the High Court on the identification of the appellants. On the two occasions that Stella had been assaulted, including the last broad-daylight attack which led to her death, the appellants had been identified by eyewitnesses whose evidence could not be faulted. Secondly, the Court agreed with the appellant’s advocate that under section 322(1) and (2) of the Criminal Procedure Code, which has since been repealed, a judge received the opinion of the assessors, which was not binding on him and as a matter of good practice, where the judge disagreed with the opinion of the assessors, he was to give the reasons for his disagreeing. However, the Court observed, the failure by a judge to give his reasons would not be so serious as to render the entire trial invalid.

On the submission that the appellants did not have malice aforethought, the Court of Appealed recalled that under section 206 of the Penal Code, malice aforethought is deemed to be established by evidence proving, among other things, an intention to cause death or to do grievous harm to a person. After considering that the appellants had gone into the home of the deceased and warned her that she had bewitched one of them, then subsequently visited the  home and inflicted serious injuries on her leading to her death, the Court was satisfied that they intended to kill her or at least to cause harm to her and therefore malice aforethought was disclosed.

In the circumstances, the Court was satisfied that the High Court had properly convicted the appellants for murder.  Save for the setting aside of the sentences of death imposed on the three appellants who were minors and ordering that they should be detained at the pleasure of the President, the Court found no merit in the appeal and it was dismissed.

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MAMA NGINA RANCH LAND TO REMAIN WITH HOUSING COMPANY

Reported By Timon Kosgei, Advocate
Mahira Housing Company Limited Vs Mama Ngina Kenyatta & another (Suing as Trustees of Waunyomu Ngeke Ranch) [2008] eKLR (www.kenyalaw.org)
Court of Appeal at Nairobi
Appeal Judges R.S.C. Omolo, J.W. Onyango Otieno & D.K.S. Aganyanya
October 31, 2008

This appeal arose from a case filed in the High Court by Mama Ngina Kenyatta and Christina Wambui Pratt, as trustees of Waunyomu Ngeke Ranch, the respondents in the appeal against Mahira Housing Company Limited, the appellants herein. The appeal was against the judgement of the High Court made on 26th May, 2001 where he awarded judgement against Mahira Housing Company Limited, ordering them to vacate land that was the subject of the dispute.

The dispute leading to this appeal was over a portion of land known as L.R. No. 10901/7/R situated within south Ruiru and otherwise subdivided and given numbers 10901/36 and 10901/37, which by agreement for sale dated 20th May, 1986 made between the parties, the appellant (Mahira Housing Company Limited) agreed to purchase from the respondent (Waunyomu Ngeke Ranch), at a price of Kshs. 5million. According to the respondents, the appellants did not honour the terms of the sale agreement when it failed to pay the full purchase price as agreed and that as per the terms of the agreement the respondent rescinded the agreement on May 1987.

In March 1990, the appellant company had filed proceedings in the High court seeking to enforce the agreement and asking for an injunction to restrain the respondents from alienating the said portion of land. That suit was dismissed for want of prosecution in 1994. According to the respondents, the appellant company, through its representatives thereafter forcefully and unlawfully took possession of the portions of land and refused to vacate despite several requests from respondents thus prompting the respondents to file a suit in the High Court seeking possession of the land and eviction of the appellant.

In actual fact, the appellant company was not just occupying the land. The land had been subdivided and distributed to over 1,000 of its members who had contributed money to buy various pieces of the land and had been issued with new title deeds by the Commissioner of Lands. It should have come as no surprise to the respondents therefore that in its defence to the suit, the company argued not only that it had bought the land from the respondents and occupied it lawfully, but also that because the original land had been subdivided and titles issued for the new parcels created out of it, the land over which the respondents were suing did not exist and therefore there was no substance to the suit.  During the hearing of the dispute, only a partner in the law firm that represented the respondents in the sale along with a clerk in the firm were called as witnesses for the respondents. As a matter of fact, the fact that neither Mama Ngina Kenyatta nor Christina Wambui Pratt or any other trustee of Waunyomu Ngeke Ranch had been called as a witness stood out prominently in appeal that would follow the suit.  Among other things, the lawyer and the clerk had denied that the appellants had paid the balance of the purchase price and stated that certain receipts produced in evidence by the appellants were forgeries. Ultimately, the High Court gave judgment in favour of the respondents regretting the misery that the dishonesty of the appellant company and the lands office had brought upon the members of the company.

The appellant lodged an appeal against the decision several grounds, among them, that the High Court had failed to consider  and give due weight to the evidence and that it had erred in refusing to issue witness summons to the principal witness, namely Mama Ngina Kenyatta, leading to a serious miscarriage of justice.

In its analysis of the evidence, the Court of Appeal noted with concern the unusual way in which the case had proceeded - though the trustees of Waunyomu Ngeke Ranch were in existence and they were the plaintiffs who had filed the suit, none of them appeared to testify in the case. Further, the Court of Appeal observed that at the time that the High Court made its findings, it was aware that there were members of the appellant company who had contributed money to purchase the land and who had already settled on it from as far back as 1984 and had been issued with titles to their individual plots. Even with the k knowledge that these people were not parties to the case in the High Court, that court went ahead to make an order against them. This, the Court of Appeal noted, was not proper.

The Court of Appeal proceeded to make the following findings. First, the two witnesses who had testified for the respondents were parties directly interested in the outcome of the litigation and it was incumbent upon the respondents to call other evidence to confirm their allegations. In the absence of other evidence to corroborate the testimony of these witnesses, the High Court had made an error in finding that their evidence proved that the receipts produced by the appellants were forgeries. Secondly, the issue of forgery raised by the respondents’ witnesses fell in the category of fraud which the appellant did not plead in the plaint. By the laws of procedure, the issue not having been pleaded in the original plaint and the respondents not having amended their plaint, it was not open to them to raise the issue. Finally, the Court of Appeal agreed with the appellant company that because the suit lands had been subdivided to its members and new titles issued to them, the original titles in the appellant’s name had ceased to exist and there was no substance over which the respondents would sue the appellant. Nevertheless, the Court thought that it would have been important for the Commissioner of Lands to be summoned by the trial court in order to remove any doubts about the status of the original head title to the land and to shed light on how the new titles had come into existence.

The Court of Appeal therefore allowed the appeal, set aside the order of the High Court and ordered that the costs of the appeal and that of the case at the superior court be should be paid by the respondents.

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Kenya Gazette of 14th November, 2008, Vol. CX - No. 90

GAZETTE NOTICE NO. 10583
THE CUSTOMS AND EXCISE ACT (Cap. 472)
MUTUAL TARIFF CONCESSIONS – COMMON MARKET FOR
EASTERN AND SOUTHERN AFRICA
EXTENSION OF TIME

IT IS NOTIFIED for general information that the Minister for Finance has extended the period during which the provisions of Legal Notice no. 16 of 2008 shall remain valid with respect to item 2(b) of the Schedule to the Legal Notice, as more particularly set out in item 4(b) thereof, from end of March, 2008, to end of December, 2008, and item 4(b) aforesaid is amended accordingly.

Dated 7th November, 2008.

JOHN MICHUKI,
Acting Minister for Finance

GAZETTE NOTICE NO. 10584
THE SITE CORPORATIONS ACT (Cap. 446)
APPOINTMENT

IN EXERCISE of the powers conferred by section 6(1)(e) of the State Corporations Act, the Minister for Information and  Communication appoints-

SOLOMON PSERET MUKENION

to be a member of the Kenya Information and Communication Technology Board for a period of three (3) years, with effect from the 16th October, 2008.

Dated 4th November, 2008.

SAMUEL POGHISIO,
Minister for Information and Communications

GAZETTE NOTICE NO. 10585
THE STATE CORPORATIONS ACT (Cap. 446)
APPOINTMENT

IN EXERCISE of the powers conferred by section 6(1) (e) of the State Corporations Act, the Minister for Industrialization appoints-

DAVID KIPTANUI KOROS

To be a member of the East African Portland Cement Company Limited, for a period of three (3) years, with effect from the 17th November, 2008.
The appointment of Sankale Ole Kantai* is revoked.

Dated the 10th November, 2008.

HENRY KOSGEI,
Minister for Industrialization.

*G.N. 6598/2006

GAZETTE NOTICE NO. 10586
THE STATE CORPORATIONS ACT (Cap. 446)
THE BRAND KENYA BOARD ORDER (L.N. NO 38 of 2008)
APPOINTMENT

IN EXERCISE of the powers conferred by paragraph 3(2) (i) of the Brand Kenya Board Order, 2008, the Minister for Information and Communications appoints-

Faith Syokau Kithu,
Jemosbey Misoi,

to be members of the Brand Kenya Board for a period of three (3) years, with effect from the 16th October, 2008.

Dated the 4th November 2008.

SAMUEL POGHISIO,
MINISTER FOR INFORMATION AND COMMUNICATIONS.

GAZETTE NOTICE NO. 10587
THE WATER ACT (No. 8 of 2002)
APPOINTMENT OF CATCHMENT AREA COMMITTEES

IN EXERCISE of the powers conferred by section 16 of the Water Act, 2002, the Minister for Water and Irrigation appoints the following persons to be members of staff of the Catchment area committees specified in relation thereto for a period of three (3) years with effect from 15th September, 2008.

Lake Victoria North Drainage:
Districts covered: Trans Nzoia, USAir Gishu, Nandi North, Kakamega, Vikings, Lugari, Bungoma, Teso, Mt. Elgon, Busia, Butere Mumias, Bondo, Siaya.

Fredrick Toni
Viola Muted,
Jackqueline K. Wamwalwa
Rogers Wilson Manyasa,
William W. Waupaca,
Emmanuel Achola
George A. Odipo,
Caroline Majuma,
Joseph Omega,
Provincial Director of Agriculture, Western Province,
Provincial Director of Forests, Western Province,
Provincial Local Government Officer, Western Province,
Managing Director, Lake Basin Development Authority,
Representative, Chamber of Commerce & Industry, Kakamega.
Chairman, Lake Victoria North Water Services Board.

Lake Victoria South Drainage:

Districts covered: Kisumu, Synod, Nandi South, Kericho, Burnet, Bomet, Rachuonyo, Suba, Migori, Homa-Bay, Gusher, Central Kiwis, Nyamira, Trans Mara ,Kuria.

John Ole Ntukusoi,
Jakristo Malowa,
Monica Omulo,
Irene Chepngeno Selim,
Leah Onyango,
Misian Sacdever Onyancha,
Fred M. Obore,
Kipngetich Arap Kones,
Rose Akelo,
Clerk, Narok County Council,
Representative Chamber of Commerce & Industry, Kisumu,
Provincial Forests Officer, Rift Valley Province,
Provincial Director of Agriculture, Nyanza Province,
Representative, Kenya Association of Manufactures, Kisumu,

Chairman, Lake Victoria South Water Services Board.

Rift Valley Drainage:
Districts Covered: Turkana, West Pokot, Marakwet, Keiyo, Baringo, Kibatek, Nyandarua, Narok.
William Ole Yaile,
Saphina Jepkorir Chelagat,
Pastor Yusuf Losute,
Jesse Njoroge,
Njeri Kamau Ephenia,
Hezron Ripko,
John Lodope Nakara,
Provincial Director of Agriculture, Rift Valley Province,
Provincial Director of Forestry, Rift Valley Province,
Chairman, Rift Valley Water Services Board,
Managing Director, Ewaso Ng’iro South development Authority
(ENSDA),
Managing Director, Kenya Wild Life Service,
Representative, Chamber of Commerce & Industry Nakuru,
Chairmna. Lake Naivasha Riparian Association.

Athi Drainage:

Districts covered: Kiambu, Thika, Nairobi ,Machakos, Makueni, Kajiado, Taita Taveta, Kwale, Kilifi,

Ruth M. Munyao,
Consolata W. Muchuka,
Patrick Balonzi,
Wilson Mbondo,
Margaret Mwangola,
Lucy Loturo,
Chairman, Kenya Hotel Keepers Association, Mombasa,
Representative, Kenya manufacturers Association, Nairobi
Chairman, Coast Water Service Board,
Provincial Forest Services Officer, Eastern Province,
Provincial Livestock Officer, Eastern Province,
Managing Director, Tana & Athi Development Authority
(Tarda),
Clerk, Masaku County Council,
Representative, Kenya Agricultural Research Institute (|KARI),
Katumani.

Tana Drainage:

Districts Covered: Nyeri, Muranga, Maragua, Thika, Kirinyaga, Tharaka, Meru South, Central, Meru North, Embu, Mbeere, Mwingi, Kitui, Tana, Ijara, Lame, Malindi.

Amina Hussein Soud,
Abu Bakar Issack Omar,
Francis Nyalo,
Japheth Wambua Nzaanzei,
Florence Musyoka,
Moses Gateri,
Octavian Gakuru,
Sylvia Kaari Kinyua,
Stanley Kithangacha Kuura,
Provincial Director of Agriculture, Eastern Province,
Provincial Forest Officer, Central Province,
Provincial Local Government Officer, Eastern Province,
Representative, National Chamber of Commerce & Industry,
Embu,
Managing Director, Tana & Athi Development Authority
(TARDA), Tana Basin.

Ewaso Ngiro Drainage:

Districts covered: Marsabit, Moyale, Mandera,Wajir, Isiolo, samburu, Laikipia.

Stephen Muthami Mbau,
Roba Galgalo,
Andrew Leletoitien Koitien,
Yusuf Maalim Hussein,
Abdub Wako,
Rukia Duba,
John Kinoti MKirigia,
Mariam Mhammed Sheikh,
Elizabeth W. Nderi,
Rose Wangu Gikongo
Provincial Director of Agriculture, Eastern Province,
Managing Director, Ewaso Ngiro North Development Authority,
Chairman, Northern Water Services Board,
Patrick Kangethe Mwangi, Representative Business Community,
Provincial Forest Officer, Eastern Province.

Dated the 31st October, 2008.

CHARITY K. NGILU,
Minister for Water and Irrigation

GAZETTE NOTICE NO. 10569
THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT (No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE IMPLEMENTATION OF THE PROPOSED EBURRU GEOTHERMAL POWER STATION PROJECT
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environment (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of proposed Eburru Geothermal Power Station Project.

The proposed project entails construction and operational of 2.5 mW. Eburru Geothermal Power Station. The project activities will include: Steam field development, construction of power station and operation and maintenance of power station.

The project will be located in Eburru Sub-location, Gilgil Division, Naivasha District.

The anticipated impacts and mitigation measures  are set out in the notice.

B.M. LANGWEN,
for Director-General,
National Environment Management Authority

GAZETTE NOTICE NO. 10741
THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT (No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR PROPOSED GAME FISHING LODGE
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of proposed construction of a game fishing lodge.

The proposed project will entail construction of five two storied buildings, a manager’s house, five servants’ quarter and a building to accommodate generator, transformer and switch board. The lodge will offer among others; entertainment facilities such as swimming pools, garage with parking space, a store, kitchen and laundry facilities for rental purposes. The proposed project will be allocated on L.R. No. 20251in Boja area of Mtondia Majaoni Sub-location, Kilifi Town Council, in Kilifi District

The anticipated impacts and mitigation measures are as set out in the notice.

B.M.LANGWEN
for Director-General
National Environment Management Authority

SUPPLEMENT NO. 78

Bills, 2008

The Appropriation Bill, 2008
Published on Special Issue on 7th November, 2008)