The Kenya Law Reports Newsletters | LEGAL BRIEF | Issue 022 | Monday 22, September 2008

ACCOMPLICE AND CHILD’S EVIDENCE REQUIRES CORROBORATION

By Nicholas Okemwa
September 2008, Nairobi
Omar Said Omar alias Ahmed Ali Mohamed v Republic [2008] eKLR (www.kenyalaw.org)
High Court at Nairobi
J. B. Ojwang (Judge)
16th September, 2008 .

“The main question is whether the prosecution proved their case beyond reasonable doubt.  The police investigators, apparently, did find dangerous explosives and firearms in a certain house, at Sparki in the Mombasa area.  It was the duty of the Police to trace accurately the person who was in possession of the said firearms and explosives.”

This appeal arose from a case before the Senior Principal Magistrate Court at the Nairobi Law Courts where Omar Said Omar Ahmed alias Ahmed Ali Mohamed was convicted on three counts and sentenced to eight years. The first count was being in possession of firearms namely five light anti-tank weapons without reasonable excuse raising reasonable presumption that the said firearms were intended to be used in a manner prejudicial to public order. The second count was identical to first, though the firearm was a hand grenade. The third count related to the possession of 177 rounds of ammunition without a firearm certificate.  The trial court held that though Omar was not in actual possession of the weapons and ammunition, he was in constructive possession of the same and convicted him.

Aggrieved by the decision, Omar appealed to the High Court. Ms Odembo, acting as his counsel, contended that the charge sheet was defective because it had mixed up two Mombasa locations in its reference, Ziwani, and Sparki, and that the evidence tendered supported recovery of firearms at Sparki and not Ziwani. She argued that though Omar had been held in custody from 1st August, 2003, he was arraigned in Court on 10th June, 2005 without an explanation for the two year delay. On this basis, she submitted that the trial was a nullity from the beginning. Counsel relied on the provisions of section 72 (3) of the Constitution, and cited the Court of Appeal decision in Gerald Macharia Githuku v. Republic. 

Ms. Odembo urged that the charges relating to firearm certificate could not stand because the explosives and ammunition referred to in the charges were not produced in court as exhibits. She further said that the arresting officer testified that Omar had nothing in his possession upon his arrest on 1st August, 2003.  She also argued that the charge could not stand because the date that appears on the charge sheet was in the future, 11th August, 2003, the date of storming the flat when the firearms were recovered.  Since Omar had been arrested earlier, she argued that he was not in possession.

Counsel contested the evidence of a prosecution’s witness who lived at Sparki and testified that he was Omar’s neighbour.  She said that the explosives which were the subject of the charge were said to have been found at Ziwani.  This, counsel said, went to cast doubts on the claim that Omar had been found in possession of the firearms. She submitted that another prosecution witness was not truthful because he had said that 4-5 days prior to the storming of the flat on 11th August, 2003, he had seen three neighbours including Omar yet Omar had been arrested on 1st August, 2003 and transferred to Nairobi, several hundred kilometres away. It was her submission that the witness had not identified him as one of the three suspects who were his neighbours at the apartment block. She argued that it was by mistaken identity that Omar had been arrested and charged.

Ms. Odembo questioned the propriety of the identification parade at which Omar was identified from the standpoint of compliance with the Police Force Standing Orders on identification parades.  She urged that the identification parade conducted was in respect of a murder charge and not one in respect of possession of firearms and that it was also flawed because Omar was not physically touched by the identifying witnesses. She submitted that the identification parade conducted was a nullity for having seven parade members, rather than a minimum of eight.  Counsel noted that it was remarkable that even close neighbours of Omar, during the parade, failed to identify him. She also noted that the witnesses who appeared at the parade had previously been shown photographs of the persons they were to identify, and when they identified, they did so by informal indications at some distance from the yard where the parade members stood.

Ms. Odembo said that Omar’s trial-rights under section 77(1) of the Constitution which relate to fair trial within reasonable time had been violated, as it took two years to lay the charge.  She urged that there had been no basis in the first place for bringing the charge as an investigating officer had stated on cross-examination that Omar was arrested as a suspicious character who could have been involved in the terrorist attack at Kikambala. She argued that there was no direct evidence linking him to the offence because the officer had not called as a witness the informant who gave him the information.

Ms. Nyamosi appearing for the State contested the appeal. On the correctness of the charge sheet she said that it was plain from the evidence that both Sparki and Ziwani in Mombasa were located in one general area and the fact that the trial court had visited the scene strongly suggested that alternating reference to Sparki and Ziwani caused no prejudice to Omar. She opined that should such minor differences be seen as significant, they may be cured by virtue of section 382 of the Criminal Procedure Code.

On the date of Omar’s arrest more than a week before the flat was stormed by the police, Ms. Nyamosi suggested that there could have beeen a confusion of dates though she argued that any such confusion was not prejudicial. She conceded that the identification parade was flawed because the parade members were seven and not eight. However, she argued that such a defect was severable and would have left the proceedings, the judgment, the conviction and sentence still standing, and to be upheld. She further submitted that the prosecution only needed to prove that the items aforementioned were in his possession and that it was proved that they were in his constructive possession as they were recovered from the house where he had been living.

Justice J.B. Ojwang opined that the main question was whether the prosecution proved their case beyond reasonable doubt.  He took the view that the police investigators did find dangerous explosives and firearms in a certain house, at Sparki in the Mombasa area. However, he found that none of the witnesses recognised Omar, including the property-agent who reportedly leased the flat to him.  Neighbours living in the same block of flats had also not recognised the three persons claimed to have been tenants in the said block of apartments. Further, he stated that since no witness had squarely linked Omar to the tenancy of the flat, it would have been wrong, as a matter of fact, to apply the doctrine of constructive possession linking him to the firearms and explosives which were said to have been recovered. He opined that if the identity of the true tenant of the said flat had not been established by evidence, the uncertainty, which must, as a matter of law, be taken in the subject’s favour, was deepened by the failure to account for the goings-on at the said flat during the eight days since Omar had been taken away from Mombasa.

The judge also took issue with the identification parade and held it was conducted in a manner that was grossly unfair to Omar and in breach of the Police Standing Orders. He concluded that the conduct of the police authorities in connection with the arrest and detention of Omar was in violation of his rights as safeguarded in sections 72 and 77 of the Constitution of Kenya and proceeded to set him free.

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KJ’S ELECTION PETITION AGAINST HON. BETH MUGO FLOPS

Reported by Ann Asugah, Advocate
John Kiarie Waweru v Beth Wambui Mugo & 2 others [2008] eKLR (www.kenyalaw.org)
High Court of Kenya at Milimani
Justice Luka Kimaru
12th September 2008

The High Court sitting in Milimani has dismissed an election petition filed by Mr. John Kiarie, the Orange Democratic Movement (ODM) candidate in the last year’s general election for Dagoretti Constituency against Hon. Beth Mugo, the Party of National Unity (PNU) candidate in a trial characterized by accusations and counter-accusations by the two candidates.
 
In his judgment, Justice Luka Kimaru observed that John Kiarie, the Petitioner had failed to establish to the required standard of proof that the malpractices cited in the grounds of the petition voided the election of Beth Mugo as the Dagoretti Member of Parliament.

Mr. John Kiarie had moved to court soon after the Electoral Commission of Kenya (ECK) announced Hon. Beth Mugo (the respondent) as the duly elected Member of Parliament for Dagoretti Constituency in last year’s general election. In his petition, Mr. Kiarie contended that Hon. Beth Mugo, Mr. S.K. Njuguna, the Returning Officer for Dagoretti Constituency and the ECK had committed several electoral offenses and malpractices during the parliamentary elections in Dagoretti constituency.  In particular, Mr. Kiarie alleged that Hon. Beth Mugo had unduly influenced the voters through bribery, that her agents had altered and filled in new form 16A’s at the tallying center, that she had used government resources while campaigning, and that she had made false statements regarding the character of Mr. Kiarie whose effect was to defame him.  Further, Mr. Kiarie alleged that the ECK and its Returning Officer had declared results which they knew or had cause to believe to be false and had allowed the counting of disputed votes contrary to election regulations.

In analyzing the evidence adduced to support the above allegations, Justice Kimaru observed that the electoral courts require a higher standard of proof than that of balance of probability but slightly lower than beyond reasonable doubt in matters touching on the democratic expression of the people in choosing their representative. The Judge said that such burden is placed on the petitioner and the petitioner must discharge it for his petition to succeed. The petitioner’s allegations fell into 3 categories; the conduct of Hon. Beth Mugo during the campaigns, conduct of the presiding officers during the voting day and the conduct of the returning officers and the ECK during the tallying of the results.

In regard to the conduct of Hon. Beth Mugo during the campaign period, Mr. Kiarie had alleged that Hon. Mugo had violently disrupted his campaigns at Waithaka Shopping Centre and produced a DVD tape as evidence of the same. This allegation was vehemently denied by Hon. Mugo who accused Mr. Kiarie of disrupting her meetings. The Judge after evaluating the evidence held that the two candidates were bound to meet in the constituency since their itineraries were not carefully harmonized and from the DVD, no evidence of violence was established. Further, Mr. Kiarie had alleged that Hon. Mugo had expressly stated that he (Mr. Kiarie) was a comedian and a joker not deserving of political leadership. The court heard that Hon. Mugo in her campaigns had said “hakuna haja mpigie mwanasarakasi kura……mtu ambaye hajakomaa kisiasa- Dagoretti ina wenyewe” (meaning there was no need to vote for a performing artiste who was not politically mature -Dagoreti had its owners).  Mr. Kiarie argued that this was defamatory of his character. Hon Mugo in her defense said that Mr. Kiarie had referred to her as “cucu” (grandmother) and this belittled her. The court held that persons aspiring for public office must have thick skins to withstand adverse comments made on their character and personality. Indeed, if the two parties felt so slandered, they had recourse to civil action for defamation but not through an election petition. This ground of the petition was equally dismissed.

The court in analyzing the allegation of bribery to voters made against Hon. Mugo observed that the standard of proof required to proof such allegations is high. Although Mr. Kiarie had witnesses who testified to have received bribes at Shalom House where Hon. Mugo had campaigned, the court held that there was no evidence to establish a connection between those who were dishing out bribes and Hon. Mugo since those who received bribes did not give the names of those who bribed them or establish that they bribed at the behest of Hon. Mugo. The allegation for bribery therefore could not hold.

The court found no evidence of misuse of state resources during the campaigns as alleged by the petitioner. On the contrary, the court found that the respondent used her car in attending a presidential function which was taking place in the respondent’s constituency which was within her mandate as an Assistant Minister at the time. 

While evaluating evidence on the alleged use of publications and posters that did not have the names and addresses of the printers and the publisher, the court held that both parties were in breach of the provisions of the Election Offences Act section 11 (b) for omitting such details from the posters. However, the sanction of the Attorney General must be sought before prosecution for an offense committed under the above section. The only remedy the petitioner has is to have the 1st respondent prosecuted in a criminal court. This allegation therefore fails considering that the petitioner‘s posters had no addresses and printers as well.

The petitioner’s allegations on the conduct of ECK and its returning officers were also dismissed for lack of sufficient evidence.  However, the court criticized the conduct of the Returning Officer who is the second respondent in this case for withholding the results after receiving them at the tallying center and carrying out the tallying of the results in the privacy of his office yet the law required him to tally the results in the presence of the candidates and their agents. The court held that the Returning Officer failed in his duty during the tallying process but that evidence adduced to show that this was necessitated by the presence of rowdy crowds was reasonable enough to warrant for his conduct.

The court after evaluating the entire evidence came to the conclusion that the voting and counting of votes at the polling stations was free and fair. However, hitches arose at the tallying centre, Kenya Science Teachers College, where the Returning Officer tallied the results in private and where the results were not officially announced at the tallying centre as required by the law.  The court held that the petitioner could not have been prejudiced by the announcing of results at the Press center of ECK instead of at the tallying centre.

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Kenya Gazette of 19th September, 2008, Vol. CX – No. 76

GAZETTE NOTICE NO. 8670 
THE JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND TECHNOLOGY ACT (No. 8 of 1994)  
THE KIMATHI UNIVERSITY COLLEGE OF TECHNOLOGY ORDER, 2007 (L.N. 162 of 2007)  

APPOINTMENT 

IN EXERCISE of the powers conferred by section 11(1)(a) of the Kimathi University College of Technology, Order, 2007, I, Mwai Kibaki, President and Commander-in-Chief of the Armed Forces of the Republic of Kenya, appoint –

James Waibochi (Chairman)
David Ndegwa Wachira (Vice-Chairman)

to be members of the Kimathi University College of Technology Council, for a period of three (3) years.

Dated the 8th September, 2008.

MWAI KIBAKI,
President.

GAZETTE NOTIE NO. 8671 
THE STATE CORPORATIONS ACT (Cap. 446)  
CHEMILIL SUGAR COMPANY

APPOINTMENT

IN EXERCISE of the powers conferred by section 6(1)(a) of the State Corporations Act, I, Mwai Kibaki, President and Commander-in-Chief of the Armed Forces of the Republic of Kenya, appoint –

SIMEON KIPKOECH MINING (DR.)

to be chairman of the Chemilil Sugar Company, for a period of three(3) years.

Dated the 8th September, 2008.

MWAI KIBAKI,
President.

GAZETTE NOTICE NO. 8672 
THE STATE CORPORATIONS ACT (Cap. 446)  
THE INDUSTRIAL DEVELOPMENT BANK (CAPITAL)

APPOINTMENT

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

HENRY KIPTIONY KIPLANGAT

to be a member of the Board of Directors, Industrial Development Bank (Capital), for a period of three (3) years, with effect from 11th August, 2008.

Dated the 12th September, 2008.

HENRY KOSGEY,
Minister for Industrialization.

GAZETTE NOTICE NO. 8673 
THE VALUATION FOR RATING ACT (Cap. 266)  
THE TOWN COUNCIL OF NYANSIONGO

DECLARATION

IN EXERCISE of the powers conferred by section 6 of the Valuation for Rating Act, the Minister for Local Government declare that “valuer in preparing any Draft Valuation Roll or Draft Supplementary Valuation Roll, need neither value nor include in the roll of the value of the land or the assessment for improvement rate, as required by paragraphs (c) and (e) respectively of this section”.

Dated the 31st January, 2007.

MUSIKARI KOMBO,
Minister for Local Government.

GAZETTE NOTICE NO. 8674 
THE STATISTICS ACT (No. 4 of 2006)  
THE KENYA NATIONAL BUREAU OF STATISTICS

APPOINTMENT

PURSUANT to section 5(2) of the Statistics Act, 2006, the Minister of State for Planning, National Development and Vision 2030 appoints –

ANTONY KYALO MWANGULU KILELE

to be the Director-General and Secretary of the Board of the Kenya National Bureau of Statistics, for a period of three (3), with effect from 14th April, 2008.

Dated the 10th September, 2008.

W.A. OPARANYA,
Minister of State for Planning,
National Development and Vision 2030.

GAZETTE NOTICE NO. 8675
THE WATER ACT (No. 8 of 2002)
THE COAST WATER SERVICES BOARD

APPOINTMENT 

IN EXERCISE of the powers conferred by section 51 of the Water Act, 2002, the Minister for Water and Irrigation appoints –

BENSON GARAMA KATANA

to be a member of the Coast Water Services Board, for a period of three (3) years, with effect from 16th September, 2008, and revokes the appointment of Hassan Isack Abdi*.

Dated the 16th September, 2008.

C.K. NGILU,
Minister for Water and Irrigation.

GAZETTE NOTICE NO. 8676
THE TEACHERS SERVICE COMMISSION ACT (Cap. 212)
THE TEACHERS SERVICE APPEALS TRIBUNAL

APPOINTMENT 

IN EXERCISE of the powers conferred by paragraph 7 of the Second Schedule to the Teachers Service Commission Act, the Minister for Education appoints –

MARGARET WANJIRU MAKENA

to be Secretary of the Teachers Service Appeals Tribunal, with effect from the 15th July, 2008.

Dated the 8th September, 2008.

S.K. ONGERI,
Minister for Education.

GAZETTE NOTICE NO. 8677
THE TEACHERS SERVICE COMMISSION ACT (Cap. 212)
THE TEACHERS SERVICE APPEALS TRIBUNAL

APPOINTMENT 

IN EXERCISE of the powers conferred by section 11(2) (a) of the Teachers Service Commission Act, the Minister for Education appoints –

SAMUEL MUTUA KIVUITU

to be the Chairman of the Teachers Service Appeals Tribunal, with effect from the 15th July, 2008.

Dated the 8th September, 2008.

S. K. ONGERI,
Mnister for Education.

GAZETTE NOTICE NO. 8678
THE TEACHERS SERVICE COMMISSION ACT (Cap. 212)
THE TEACHERS SERVICE APPEALS TRIBUNAL

APPOINTMENT

IN EXERCISE of the powers conferred by section 11(2)(b) of the Teachers Service Commission Act, the Minister for Education appoints –

Idris Mohammed Farah,
Augusta Muthigani,
Richard Kibagendi,
Hilda Wanjiru Ikahu,

to be members of the Teachers Service Appeals Tribunal, for a period of three (3) years, with effect from the 15th July, 2008.

Dated the 8th September, 2008.

S.K. ONGERI,

GAZETTE NOTICE NO. 8679
THE CRIMINAL PROCEDURE CODE (Cap. 75)

APPOINTMENT 

IN EXERCISE of the powers conferred by section 85 of the Criminal Procedure Code, the Attorney-General appoints –

GEORGE NDUNGU NGUGI

to be a public prosecutor for all cases arising under the Local Government Act and all regulations made thereunder.

Dated the 12th September, 2008.

S.A. WAKO,

GAZETTE NOTICE NO. 8680
THE COPYRIGHT ACT (No. 12 of 2001)

APPOINTMENT 

IN EXERCISE of the powers conferred by section 11 of the Copyright Act, 2001, the Attorney-General, on the recommendation of the Board appoints –

MARISELLA NABONGO OUMA (DR.)

to be the Executive Director of the Kenya Copyright Board, for a period of three (3) years, with effect from the 1st October, 2008.

MARISELLA NABONGO OUMA (DR.)

to be Executive Director of the Kenya Copyright Board, for a period of three (3) years, with effect from the 1st October, 2008.

Dated the 18th September, 2008.

S.A. WAKO,
Attorney-General.

GAZETTE NOTICE NO. 8939
THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT (No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY

ENVIRONEMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED CONSTRUCTION OF WASTEWATER TREATMENT PLANT ON PLOT NO. 12270, NAIROBI 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 the proposed construction of wastewater treatment plant.

The proposed project will entail construction of effluent treatment plant, pump, house, laboratory, control room, office, stores, sanitary facilities and waste receptacle.  The project will be located on plot L.R. No. 12270, Nairobi.

The project anticipates the following impacts and mitigation measures:

The full report of the proposed project is available for inspection during working hours at:

(a) The Director-General, National Environment Management Authority, Kapiti Road, off Mombasa Road, P. O. Box 67839 -00200, Nairobi.

(b) The Permanent Secretary, Ministry of Environment and Mineral Resources, National Hospital Insurance Fund Building, Community, 4th Floor, P. O. Box 30521, Nairobi.

(c) Provincial Director of Environment, Nairobi Province.

(d) District Environment Office, Nairobi North District.

The National Environment Management Authority invites members of the public to submit oral or written comments within (30) days from the date of publication of this notice to the Director-General, National Environment Management Authority, to assist the authority in the approval process of the project.

B.M. LANGWEN,
For Director-General,

GAZETTE NOTICE NO. 8940
THE ENVIRONMENT 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 CONSTRUCTION OF 21 STOREY FIVE STAR HOTEL

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 the proposed construction of 21 storey five star hotel.

The proposed project will entail construction of a 21 storey five star hotel.  The hotel will offer among others; conference services, entertainment facilities such as swimming pool, health clubs, food and drink catering, shops and offices for rental purposes. The proposed project will be located on L.R. No. 209/10342 off Loita Street and borders Barclays Plaza, Hotel Grand Regency and Nyati House.

The project anticipates the following impacts and mitigation measures:

The full report of the proposed project is available for inspection during working hours at:

(a) The Director-General, National Environment Management Authority, Kapiti Road, off Mombasa Road, P. O. Box 67839 -00200, Nairobi.

(b) The Permanent Secretary, Ministry of Environment and Mineral Resources, National Hospital Insurance Fund Building, Community, 4th Floor, P. O. Box 30521, Nairobi.

(c) Provincial Director of Environment, Nairobi Province.

(d) District Environment Office, Nairobi North District.

The National Environment Management Authority invites members of the public to submit oral or written comments within (30) days from the date of publication of this notice to the Director-General, National Environment Management Authority, to assist the authority in the approval process of the project.

B.M. LANGWEN,
For Director-General,