Weekly Newsletter 033/2020



Kenya Law

Weekly Newsletter


Failure to supply evidence in criminal trials count by count does not violate the right to fair trial
 
Director of Public Prosecutions v Peter Aguko Abok & 35 others [2020] eKLR
Revision Application No. 42 of 2019
Anti-Corruption and Economic Crimes Division
JN Onyiego, J
February 19, 2020.
Reported by Kakai Toili
Download the Decision
 
Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms – right to a fair trial - where the Director of Public Prosecutions (DPP) was directed to disclose evidence count by count - whether the disclosure of evidence count by count went against the spirit of full disclosure and contrary to the right to a fair trial - whether failure to supply the defence with evidence in criminal trials count by count violated the right to fair trial - Constitution of Kenya, 2010, articles 25(e), 35, 50(2) and 259.
Jurisdiction – jurisdiction of the High Court – supervisory jurisdiction over subordinate courts - what was the nature of the High Court’s supervisory jurisdiction – Constitution of Kenya, 2010, article 165(6); Criminal Procedure Code(Cap 75) section 362
Criminal Procedure – challenging of decisions made by trial courts – procedure to be followed – where a trial court made a decision by its own motion – where what was the proper way to challenge a decision of a trial court made by that court’s own motion.
Criminal Procedure – joinder of parties - joinder of parties in a suit challenging the decision of a trial court – where the decision was made by the trial court’s own motion – where the Director of Public Prosecutions joined the accused persons as respondents in the suit - whether it was necessary to join the accused persons as respondents in the suit.
Evidence Law – disclosure of evidence – disclosure of evidence in criminal trials – where the Director of Public Prosecutions (DPP) was directed to disclose evidence count by count – where there was no law providing for the disclosure of evidence count by count - whether a court could direct the disclosure of evidence - what was the rationale of the obligation on the DPP to supply to the defence all material evidence it intended to rely on in a trial - Constitution of Kenya, 2010, articles 25(e), 35, 50(2) and 259; Judiciary guidelines for active case management of criminal cases in Magistrates and High Courts of Kenya, paragraphs 5.1, 6.1, 6.2 and 6.3.
 
Brie facts:
The accused persons had been arraigned before the trial court facing corruption related charges. Having returned a plea of not guilty, the accused persons were released on various bail terms and conditions. During the hearing of the bail application, the prosecution intimated that they had about 250 documents to disclose, some of which had more than1,000 pages and that they had 65 witnesses whom they intended to call.
The trial court in its ruling made remarks suo motto stating that anti-corruption matters were complex hence required a different approach in handling them from the inception, the absence of the law governing their uniqueness notwithstanding. The trial court further directed the prosecution to among others make disclosure in every prosecution file and that henceforth, the investigative agencies and the prosecution to ensure that disclosure in each prosecution file had to be done count by count. Aggrieved by the ruling and in particular the direction for disclosure count by count, the prosecution filed the instant application.


Issues:
  1. Whether failure to supply evidence in criminal trials count by count violated the right to fair trial.
  2. What was the nature of the High Court’s supervisory jurisdiction over subordinate courts?
  3. What was the proper way to challenge a decision of a trial court made by that court’s own motion?
  4. Whether it was necessary to join accused persons as respondents in a suit challenging the decision of a court made by its own motion.
  5. Whether a court could direct the disclosure of evidence count per count despite lack of law providing for the same.
  6. What was the rationale of the obligation on the Director of Public Prosecution to supply to the defence all material evidence it intended to rely on in a trial?
  7. Whether the disclosure of evidence count by count went against the spirit of full disclosure and contrary to the right to a fair trial.
 
Held:
  1. Jurisdiction was the cornerstone of any judicial proceedings, it flew from either the Constitution or statute or both; without it, a court had to down its tools and move no further step. Article 165(6) of the Constitution conferred supervisory jurisdiction of the High Court over subordinate courts and over any person, body or authority exercising judicial or quasi-judicial function but not over a superior court. Underlying the operationalization of article 165(6) was section 362 of the Criminal Procedure Code (CPC) which underscored the supervisory role of the High Court over subordinate courts. However, despite the authority to exercise those wide discretionary powers, the same had to be discharged reasonably and judiciously. Those powers had to only be directed towards addressing or correcting decisions arrived at based on misapprehension of the law or application of wrong principles of the law. The court had jurisdiction to determine the application.
  2. The impugned orders were made on the trial court’s own motion (suo motto). However, the applicant decided to name the accused persons as respondents. Ideally, the applicant should have named the trial court as the respondent either in a judicial review application seeking for certiorari orders or for revision as in the instant case.
  3. The accused persons never played any role whatsoever nor did they contribute towards the issuance of the impugned orders. Their joinder in the proceedings was unnecessary. However, in the court’s ruling delivered on January 22, 2020 the court stated that, at best, the respondents should have been enjoined as interested parties and not as respondents. The court consequently allowed them to participate as interested parties on grounds that the outcome of the orders to be made whether upholding the trial court decision or not would affect their interest in one way or the other.
  4. Pursuant to section 364(2) and 365 of the CPC, the court had powers to hear any party either personally or by an advocate if it found it necessary. There was no prejudice in granting the accused persons an opportunity to give their side of the story as interested parties which was not prejudicial to any party.
  5. It was incumbent upon the applicant to prove the elements of illegality, impropriety, irregularity or error of the directive on disclosure of evidence by the prosecution count by count. There was no express legal provision governing the process of disclosure of evidence during the pre-trial stage count by count. The only relevant document addressing the issue of disclosure was the Judiciary guidelines for active case management of criminal cases in Magistrates and High Courts of Kenya (the Guidelines).
  6. From paragraph 5.1, 6.1, 6.2 and 6.3 of the Guidelines, a trial court could give directions suo motto to ensure efficient and smooth running of court business. A court was not a mechanical machine to strictly operate within strict and fixed parameters. Each court had a case management strategy executed within the confines of the law to ensure optimal results and attainment of the overriding objective that criminal cases be dealt with justly and expeditiously whilst exercising any power given under the law. In any event, a court with jurisdiction to hear a matter had certain inherent powers to exercise in civil or criminal proceedings which were not necessarily written. There was nothing wrong in the trial court making directions suo motto in the circumstances of the case which in any event were inherent by virtue of holding that jurisdiction.
  7. Despite lack of express legislative legal framework governing the process of disclosure of material evidence in criminal proceedings, the requirement was underscored constitutionally under article 50(2) of the Constitution. Article 50(2) on the right to a fair trial (hearing), which under article 25(e) was absolute as an inalienable right, could not be compromised at the altar of any convenience.
  8. Under article 259 of the Constitution, courts were duty bound to interpret the Constitution in a manner that promoted its purposes, values and principles, advanced the rule of law, and, the human rights and fundamental freedoms in the bill of rights, permitted the development of the law; and contributed to good governance. The principle in constitutional interpretation was that, it should be given a purposive inherent interpretation and where the words used were clear leaving no ambiguity, the court should not strive to give any other meaning other than to pronounce what the objective of that provision entailed without leaving room for discretion.
  9. From the plain reading of article 50(2)(b) and (j) of the Constitution, prosecution had a legal and binding obligation to supply to the defence all material evidence in its possession which it intended to rely on to enable the defence prepare its defence adequately. The rationale behind that provision was to avoid practice by ambush. It was meant to put both the prosecution and the defence on equal footing so that none was caught by surprise. It was in fulfillment of article 35 of the Constitution which underpinned the right to access information.
  10. The prosecution had not failed to supply all material evidence in their possession. The direction by the court only came a bit too early even before a pre-trial conference could be held. It was perhaps a cautionary alert that when time eventually came that was what was expected of them. Before a pre-trial conference was held and necessary directions for disclosure made, a charge sheet properly framed had to be presented before court and all necessary ingredients satisfied as provided for under section 134 of the CPC.
  11. The starting point of article 50(2)(b) of the Constitution was to be informed of the charge, with sufficient detail. Nobody had challenged the manner in which the charge sheet had been drafted or framed. All accused persons took plea and denied the charges which were sufficiently explained and understood by the accused. None of them claimed that the charges as framed in the charge sheet were defective nor did the trial court note that. The accused were therefore deemed to know the specific offence or wrong doing leveled against them and therefore from the particulars of the charge sheet they were aware of what they were supposed to defend themselves against. There was no allegation of any ambiguity on the manner in which the charge sheet had been drawn. To that extent the interested parties could not claim not to have understood sufficiently what charges they were facing.
  12. Supply of evidence the prosecution intended to rely on was not a one stop-shop kind of adventure, the exercise was an ongoing process. Disclosure could be before the hearing or trial commenced or during the trial depending on the circumstances of each case or discovery of new evidence which could reasonably not be expected or be available at the start or commencement of the trial. In such a situation(s), the prosecution could be expected to notify the court and the accused of the intention to adduce additional evidence or even the court on its own motion under section 150 of the CPC demand where necessary for certain witnesses although not listed to be called and testify for the ends of justice to be met.
  13. Full disclosure was neither restrictive nor conditional, the prosecution should not be made to withhold some evidence which it intended to use in the trial from other accused persons. Prosecution of a criminal case was like a web, what could not directly touch on one accused could indirectly or circumstantially connect or touch on another accused person. To restrict production or supply of information or evidence according to each count against individual accused persons in respect of each count would go against the spirit of full disclosure of evidence to the defence contrary to what was envisaged under article 50(2) of the Constitution.
  14. The accused persons should not complain that they were going to be overburdened in reading the entire prosecution evidence or material including that which was not relevant to their respective clients. If it was left to the discretion of the prosecution to isolate evidence and restrict supply to individual counts, it would cause more confusion in the course of the trial when such discovery was made and some accused persons demanded to be supplied what they were never supplied but others were supplied with.
  15. An advocate should not fear going through the entire evidence as that was what entailed adequate preparation of the defence case. Unlike the old days when murder trials used to be conducted through committal proceedings before a magistrate using committal bundles before the trial would commence in the High Court, there was no law governing committal process for now. If there was such provision which was scrapped from Kenya’s statute books, the request for committal proceedings and proof of evidence count by count would have applied.Without a clear legal framework governing committal proceedings or pre-trial conference as was the case in the International Court of Justice, the court could not craft one from nowhere.
  16. Although the trial court was creative and innovative in trying to advance jurisprudence, there had to be a legal framework stipulating on how the process was to be undertaken and the consequences for non-adherence with such directions. Unlike civil cases where a case could be dismissed at a preliminary stage for failure to disclose reasonable cause of action, in criminal cases, the case had to go through a full trial before a court could acquit.
  17. There were sufficient constitutional and statutory safety measures governing the rights of an accused person including cross examining witnesses if necessary and submitting in their case and even call witnesses. Their rights to a fair hearing or trial would not be prejudiced or suffer injury by having all the prosecution evidence disclosed in advance which the prosecution was more than willing to supply as per the law.The interested parties had not proved with precision how their rights would be violated or had been violated by not being supplied with all the material evidence count by count. In fact, prosecution should be commended for being more than ready to supply in advance all material evidence without restriction or segregation which could attract complaints of discrimination on account of selective supply hence contravening the Constitution and the Fair Administrative Action Act.
  18. The framers of article 50(2)(b) and (j) of the Constitution and generally the Kenyan people did not intend to restrict or limit disclosure of information in supply of evidence to accused persons. By giving it a broader interpretation, it served its objective that disclosure of evidence meant the entire evidence relating to the subject case regardless whether one was charged alone or with other persons in respect of one count or more.From the entire evidence supplied, each accused was able to have a broader understanding of the case so as to prepare the defence sufficiently.
  19. There was no mischief to be cured by restricted disclosure of evidence. There were more benefits when having full disclosure of evidence than restricting it to individual counts or individual accused persons. Since there was no law in place specifically governing disclosure on count per count article 50(2)(b) and (j) of the Constitution when read together with other provisions governing the trial of criminal proceedings was sufficient engine to drive the entire process without jeopardizing anybody’s rights.
  20. The order of the trial court directing that prosecution disclose evidence count by count would amount to demanding too much from the applicant and by extension controlling its prosecutorial role even before the hearing process commences. The trial court improperly and without any underpinning legal frame work arrived at the direction of disclosure of evidence count by count.
  21. What will happen if the prosecution does not have all the evidence at once before the trial commences yet disclosure is a continuous process?  Can the court find that there is no full disclosure for such and such an accused person or counts and therefore set free the accused person?  Courts do not issue orders or make decisions in vain.  Once a charge has properly been framed, registered and admitted in court, the prosecution is duty bound to disclose all the evidence it intends to rely on without segregating on which evidence is applicable to which accused or to which count.
  22.  [Obiter] Perhaps, it is high time the Attorney General prepared amendments to the Evidence Act and Criminal Procedure Code to provide a clear legal frame work on committal proceedings or pre-trial conference proceedings where the evidence disclosed in advance would be challenged at a preliminary stage to determine whether an accused person should be committed to stand trial on the basis of the evidence available.
  23. With a proper legal framework, it will save more precious judicial time, cost and avoid charges prepared for the sake of settling personal scores or speculative charges which are eventually withdrawn for lack of evidence, witnesses, or simply collapse from the word go.  This will also mean that Judiciary will concentrate on more serious and deserving cases and that the prosecution will be more than vigilant to present only serious cases in court.
  24. As it is now, the DPP cannot be questioned or challenged on the merits or sufficiency of the evidence at the pre-trial stage until full hearing is conducted and cross examination duly carried out and then determined by the court on whether there is a case to answer or not. Aware that Anti-Corruption matters are unique in nature, there is need for legislation to provide for special process of prosecution including preliminary committal proceedings at the pre-trial conference stage to determine on cases worthy proceeding to full trial.
Application allowed; the orders regarding disclosure of evidence count per count set aside.
 

Kenya Law
Case Updates Issue 033
/2020

Case Summaries

JURISDICTION A claim for restitution of emoluments and pensions under statute was not constitutional in nature

Alfred Asidiga Mulima & 2 others (Suing as Representatives of Ex-East African Airways Staff Welfare Association) v Attorney General & 8 others [2020] eKLR
Petition No. 17 of 2019
Supreme Court of Kenya
P M Mwilu (DCJ & VP), M K Ibrahim, S C Wanjala, N Njoki and I Lenaola, SCJJ
August 4, 2020
Reported by Chelimo Eunice

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Jurisdiction – appellate jurisdiction of the Supreme Court – appeal on non-payment of emoluments and pensions – whether a claim for restitution of emoluments and pensions under statute were constitutional in nature - whether a claim that non-payment of pensions and emoluments violated a litigant’s constitutional rights gave the Supreme Court jurisdiction to entertain the matter - whether the Supreme Court could entertain a claim for restitution of emoluments and pensions – Constitution of Kenya, 2010, article 163(4)(a).

Brief facts:
The petitioners who were former employees of the East African Airways Corporation (EAAC) which fell under the ambit of the East African Community (EAC) had filed a petition in the High Court (trial court). In the petition, they alleged violation of their constitutional rights under the Constitution as a result of non-payment of various amounts of money they alleged were due to them following the disbandment and dissolution of the EAC as well as the winding up of the EAAC. Their claim involved payment of emoluments accruing and owing to them as former employees of the defunct EAAC. They highlighted various provisions of the Constitution as the basis for their claim against the respondents.
The trial court dismissed the petition stating that it was res judicata, the issues that it raised having been the subject of consideration by courts of competent jurisdiction.Aggrieved by the decision of the trial court, the petitioners moved the Court of Appeal where the appeal was dismissed on grounds that the matter was time-barred as the real issue in contest was one based on contractual and statutory obligations and not violation of the Constitution per se. Aggrieved by that decision, the petitioners filed the instant appeal.

Issues:

  1. Whether a claim for restitution of emoluments and pensions under statute were constitutional in nature.
  2. Whether the Supreme Court could entertain a claim for restitution of emoluments and pensions. Read More..

Held:

  1. The trial court and the appellate court in holding that there was no violation of any constitutional rights and that the claim arose from a contract of employment proceeded to interrogate the claims against the East African Community Mediation Agreement Act (EACMAA), a statute, and not any part of the Constitution. None interpreted or applied the Constitution in any substantive manner.
  2. Where a matter or claim was for restitution of emoluments and payments under statute, not of violated constitutional rights per se, then the Supreme Court would decline to assume jurisdiction under article 163(4)(a) of the Constitution. The instant claim was a civil claim against the respondents for unsettled or unpaid dues following the redundancy of the petitioners. The petitioners had not shown how the issues were of a constitutional nature, and hence, a requirement of them to make a determination on the same.
  3. It was perturbing why the petitioners would seek constitutional reprieve for issues that were about statutory application and had no nexus whatsoever with violation of constitutional rights. It was the applicability or otherwise of the EACMAA that was at the centre of the dispute and not the interpretation or application of the Constitution per se. None of the issues parties submitted on called for such interpretation or application of the Constitution in any substantive or even peripheral manner.
  4. Having held that the issues before court were not constitutional in nature, there was no reason to delve into the other issues set out for determination. As long as EACMAA remained valid, the petitioners were at liberty to pursue their emoluments and pensions under that Act. The petitioners would as well pursue the trial court’s order directed at the National Bank of Kenya to pay retired staff of the EAC from funds it was holding.
  5. A simple, otherwise straight forward claim for emoluments and pensions should never have taken almost 40 years to commence and prosecute.
  6. Since the court had no jurisdiction, it would not address the place of the principle of res judicata in constitutional matters as well as the retrospectivity or otherwise of the Constitution.

Petition dismissed with no orders as to costs.

LEGAL SYSTEMS

Power of the Registrar of Companies to deregister a company that bore a similar name to an existing registered company where both companies were registered under the repealed Companies Act.

Republic v Registrar of Companies & 2 others; Ex Parte Schindler Limited
Miscellaneous Application No. 105 of 2019
High Court at Nairobi
JM Mativo, J
July 13, 2020
Reported by Ribia John and Ian Otenyo

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Legal Systems – retrospective application of the law – circumstances where the law could act retrospectively – where a statute replaced and repealed an older version of the statute - retrospective application of the repealed statute - whether statutes should be considered as affecting future matters only in the absence of an express provision to the contrary where a statute repealed its older version - whether the Companies Act, 2015, applied to companies registered under the repealed Act – Companies Act, Cap 486 (repealed) sections 20(2), 58(5), (6) and (7)and 356
Company Law – registration and deregistration of companies –powers of the Registrar of Companies in registration of companies – where two registered companies bore similar names - rationale for protecting a company’s registered name – whether under the repealed Companies Act,  the registrar of companies had the power to deregister a company that bore a similar name to an existing registered company – whether under the Companies Act, 2015, the Registrar of Companies had the power to deregister a company that bore a similar name to an existing registered company where both companies were registered under the repealed Companies Act – Companies Act, Cap 486 (repealed) sections 20(2), 58(5), (6) and (7)and 356
Judicial Review – prerogative orders – writ of mandamus – writ of prohibition – what were the conditions precedent for a writ of mandamus to issue – what were the conditions precedent for a writ of prohibition to issue
Judicial Review – prerogative orders – writ of prohibition – writ of prohibition vis-à-vis a quashing order - whether a writ of prohibition was similar to a quashing order thus preventing a tribunal or authority from acting beyond its scope of powers - what was the distinctive factor between a writ of prohibition and a quashing order

.

Brief facts:
Schindler Limited (ex-parte applicant) was registered on February 15, 1989 under the repealed Companies Act and was subsequently issued with a Certificate of Incorporation by the Registrar of Companies (1st respondent). The 1st respondent registered Schindler United Elevator Kenya-China Limited (the 3rd respondent) on December 23, 2014 and was issued with a Certificate of Incorporation.
The ex-parte applicant sought an order of Mandamus to compel the 1st respondent to strike out the 3rd respondent from the Register of Companies. It also sought an order of prohibition to prohibit the 1st respondent or its agents, servants and or employees from continuing, sustaining or proceeding with registration of entities bearing its name or names that were strikingly similar which violated its Registered Trademarks and Licenses. Lastly, it prayed for costs of the case.

Issues:

  1. Whether statutes should be considered as affecting future matters only in the absence of an express provision to the contrary where a statute repealed its older version.
  2. What was the rationale for the presumption against the retrospective application of legislation?
  3. Whether the Companies Act, 2015, applied retrogressively to companies registered under the repealed Act.
  4. Whether under the Companies Act, 2015, the Registrar of Companies had the power to deregister a company that bore a similar name to an existing registered company where both companies were registered under the repealed Companies Act.
  5. What was the rationale for protecting a registered name under the Companies Act, 2015, or under the repealed Act?
  6. What factors should a court consider before issuing;
    1. a writ of mandamus,
    2. a writ of prohibition.
  7. Whether a writ of prohibition was similar to a quashing order thus preventing a tribunal or authority from acting beyond its scope of powers.
  8. What was the distinctive factor between a writ of prohibition and a quashing order?Read More...

Relevant provisions of the law
Companies Act, CAP 486 (Repealed)
Section 20(2)
Change of Name
“2(a)  If, through inadvertence or otherwise, a company on its first registration or on its registration by a new name is registered by a name which, in the opinion of the registrar, is too like the name by which a company in existence is previously registered, the first-mentioned company may change its name with the sanction of the registrar and, if he so directs within six months of its being registered by that name, shall change it within a period of six weeks from the date of the direction or such longer period as the registrar may think fit to allow.
(b)     If a company makes default in complying with a direction under this subsection, the company and every officer of the company who is in default shall be liable to a fine not exceeding one hundred shillings for every day during which the default continues.”

Section 356
356. Application of Act to companies formed and registered under the
repealed Acts
“This Act shall apply to existing companies—

(a)     in the case of a limited company, other than a company limited by guarantee, as if the company had been formed and registered under this Act as a company limited by shares;
(b)     in the case of a company limited by guarantee, as if the company had been formed and registered under this Act as a company limited by guarantee; and
(c)      in the case of a company other than a limited company, as if the company had been formed and registered under this Act as an unlimited company:
Provided that any reference, express or implied, to the date of registration shall be construed as a reference to the date at which the company was registered under that one of the repealed Acts under whichsuch company was registered.”

Held:

  1. In a business, identity took utmost importance. Not only should the business entity have been readily identifiable among its customers, but the goods or services it offered had to also be identified or associated with it. A unique identity could have been targeted by those that sought to cash in on it for nefarious reasons. Under the law, a business had to have a business name or a company name (if so incorporated).
  2. By the time the 3rd respondent was registered, the name was not available for registration because a different company existed under a similar name. The admission was sufficient to merit the prayers sought
  3. The Companies Act, 2015, applied to companies registered under the repealed Act. When compared to section 356 of the repealed Companies Act, the 1st respondent’s argument that the repealed Act did not empower it to deregister a company inadvertently registered as in the instant circumstances was legally frail. The legal position that laws did not operate retrospectively could not apply where the repealing statute expressly provided that it applied. Generally, a statute would be construed as operating prospectively only unless the legislature had clearly expressed a contrary intention.
  4. The reasoning behind the presumption against the retrospective application of legislation was premised upon the unwillingness of the courts to inhibit vested rights. The general rule was that, in the absence of an express provision to the contrary, statutes should be considered as affecting future matters only; and more especially that they should if possible be so interpreted so as not to take away rights actually vested at the time of their promulgation. A further reason for its existence was that the creation of new obligation or an imposition of new duties by the Legislature was not lightly assumed. Thus a statute was presumed not to apply retrospectively, unless it was expressly or by necessary implication provided otherwise in the relevant legislation. Unless a contrary intention appeared from new legislation which repealed previous legislation, it was presumed that no repeal of an existing statute had been enacted in relation to transactions completed prior to such existing statute being repealed.
  5. Where the statutory provision confirmed the existing law, it was not a case of true retrospectivity, since true retrospectivity meant that at a past date, the law was to be taken to have been that which it was not. Thus, if the legal position was A, and enactment X was designed merely to confirm A, then it could not be said that, subsequent to the promulgation of X, the legal position had become A. Accordingly, true retrospectivity could only become an issue once X replaced, amended or supplemented A. Presumptions, however strong, were merely an aid to interpretation and had to yield to the intention of the legislature as it emerged from any particular statute. Thus, the answer to the question whether a particular statute had retrospective operation could not be found by simply determining whether the statute dealt with substantive law or matters of procedure. One had to always to ascertain the intention of the legislature.
  6. The Constitution of Kenya, 2010, (Constitution) required a purposive approach to statutory interpretation. The purpose of a statute played an important role in establishing a context that clarified the scope and intended effect of a law. A contextual or purposive reading of a statute had to remain faithful to the actual wording of the statute. A contextual interpretation of a statute had to be sufficiently clear to accord with the rule of law.
  7. In giving effect to the purposive approach, a court should, at least:
    1.  look at the preamble of the Act or at the other express indications in the Act as to the object that had to be achieved,
    2. study the various sections wherein the purpose could be found,
    3.  look at what led to the enactment (not to show the meaning, but also to show the mischief the enactment was intended to deal with); and
    4. draw logical inferences from the context of the enactment.
  8. A purposive construction of the Companies Act, 2015, required courts and regulatory bodies tasked with enforcement of the Act to interpret and apply the Act in a manner that gave effect to its objects as set out in the preamble.  The provisions of the Act proscribing regulation of registration of companies entrenched in the preamble had to be given effect when interpreting the statute. Those statutory and policy reasons discernible from the preamble included the need to ensure that double registration of names was not permitted. The legislative intention discernible form section 356 of the repealed Act was clear; the Act applied to companies registered under the repealed Act. Pursuant to section 20 of the Act, the Registrar had the power to deregister a company that had been inadvertently registered.
  9. The rationale for protecting a registered name under the Companies Act, 2015 or under the repealed Act was not hard to find. Where the names of companies were the same or substantially similar and where there was a likelihood that members of the public would be confused in their dealings with the competing parties, those were important factors which the court would take into account when considering whether or not a name was undesirable. The rationale was also discernible in the common law principles concerning passing off which had an impact on whether a company may use its registered company name in trade. No man could pass off his goods as those of another. By implication, that offered some protection to a business that had established goodwill as a result of the use of a name/brand in respect of goods or services. Another business could not register that name as its company name if doing so would engender a misrepresentation that the source of its goods or services was the same as that of the business with established goodwill.
  10. An order of mandamus would issue to compel a person(s) who had failed to perform the duty to the detriment of a party who had a legal right to expect the duty to be performed. Mandamus was a judicial command that required the performance of a specified duty, which had not been performed. It was employed to compel the performance, when refused, of a ministerial duty, that being its chief use. It was also employed to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way, nor to direct the retraction or reversal of action already taken in the exercise of either.
  11. The eight factors that had to be present for the writ of mandamus to issue were;
    1. there should be a public legal duty to act,
    2. the duty should be owed to the applicants,
    3. there should be a clear right to the performance of that duty, meaning that:
      1. the Applicants had satisfied all conditions precedent; and
      2. there should have been:
        1. a prior demand for performance,
        2. a reasonable time to comply with the demand, unless there was outright refusal; and
        3. an express refusal, or an implied refusal through unreasonable delay.
    4. No other adequate remedy was available to the applicants,
    5. the Order sought had to be of some practical value or effect;
    6. there was no equitable bar to the relief sought;
    7. On a balance of convenience, mandamus should lie.
  12. The writ of prohibition arrested the proceedings of any tribunal, corporation, board or person, when such proceedings were without or in excess of the jurisdiction of such tribunal, corporation, board or person. A prohibiting order was similar to a quashing order in that it prevents a tribunal or authority from acting beyond the scope of its powers. The key difference was that a prohibiting order acted prospectively by telling an authority not to do something in contemplation.

Application allowed; no order as to costs.
Orders:

  1. An order of mandamus issued compelling the 1st respondent to strike off the 3rd respondent from the Registrar of Companies.
  2. An order of prohibition issued prohibiting the Registrar of Companies, its agents, servants and or employees from continuing, sustaining or proceeding with the registration of the 3rd respondent or any entity that bore the ex parte applicant’s name or names that were strikingly similar and/or which infringed the applicant’s trademarks and licenses.
CONSTITUTIONAL LAW The circular on the operalization and improvement of cargo logistics at the ports of entry and inland container depots was constitutional.

Association of Public Health Officers of Kenya v Kenya Bureau of Standards & 2 others [2020] eKLR
Constitutional Petition No. 147 of 2019
High court at Mombasa
E K Ogola, J
June 11, 2020
Reported by Chelimo Eunice

Download the Decision

Constitutional Law – fundamental rights and freedoms – right to health – role of the government in relation to health - powers and duties of Port Health Officers in relation to promoting health and countering influences having an adverse effect on the health of the people - whether the circular on the operalization and improvement of cargo logistics at the ports of entry and inland container depots was unconstitutional for negatively impeding the port health officers from discharging their functions - whether the Kenya Ports Authority directive’s limiting the port health officers from carrying out their functions could override the statutory mandate bestowed on officers – Constitution of Kenya, 2010, articles 43 and 46; Public Health Act, Cap 242, sections 15, 60, 62, 68 and 73; Food, Drugs and Chemical Substances Act, Cap 254, section 30.
Constitutional Law – principles of constitutional law - separation of powers – separation of powers between arms of government – roles of the judicial arm of government - whether courts had any role to play in policy formulation and execution – whether courts would interfere in the policy decisions of the government - whether a policy decision was subject to judicial review - grounds in which a policy decision would be subject to judicial review.

Brief facts:
On June 4, 2019, the President through the Head of the Public Service issued a circular on the operalization and improvement of cargo logistics at the ports of entry and inland container depots (impugned circular).The impugned circular was aimed at bringing order at the ports of entry through proper co-ordination of and harmonization of various intervention measures to reduce the duplication of roles by various government agencies, increasing efficiency and reducing the cost of doing business.
Arising from the impugned circular, the 2nd respondent issued a directive addressed to the Port Health Officer, Mombasa, communicating that in accordance to the said circular, port health officers in discharging their functions were allowed to board vessels at the port. However, they were not allowed to stop any cargo released by the 1st or the 2nd respondent and their intervention where necessary, was to be made to the lead agency through the 1st respondent.
The petitioner challenged the impugned circular arguing that it contravened the Constitution and various statutory provisions as it limited the Port Health Officers (PHO) from carrying out their functions, that they were being left out in the performance of their statutory mandate to intervene after inspection of food, drugs and other substances imported into the country were found to be unsafe and that any such intervention could only be through the 1st respondent, thereby relegating the petitioner’s role to that of a bystander.

Issues:

  1. Whether courts had any role to play in policy formulation and execution.
  2. Whether a policy decision was subject to judicial review.
  3. Grounds in which a policy decision would be subject to judicial review.
  4. Whether the circular on the operalization and improvement of cargo logistics at the ports of entry and inland container depots was unconstitutional.
  5. What were the statutory powers of the port health officers?
  6. Whether the Kenya Ports Authority directive’s limiting the Port Health Officers from carrying out their functions could override the statutory mandate bestowed on officers. Read More..

Held:

  1. The general rule was that the formulation and execution of policy were mandates firmly within the province of the executive arm of government and a court of law would not interfere with those mandates. The role of the legislature was to make laws and policy and that of the executive was to implement those laws and policies. The role of the judiciary was to interpret the policies and laws as enacted and approved by the legislature and executive. Generally, courts had no role to play in policy formulation. Formulation of government policy was a function best suited for the executive and legislature.
  2. The province of the court was solely to decide on the rights of individuals and not to enquire how the executive or executive officers performed duties in which they had discretion.
  3. The formulation of policy and implementation thereof were within the province of the executive. Questions which were in their nature exclusively political ought not be adjudicated upon by courts. It was advisable for courts to practice self-restraint and discipline in adjudicating government or executive policy issues. That precautionary principle ought to be exercised before delving and wading into the political arena which was not the province of the courts.
  4. There was an exception to the stated general rule. There were constitutionally permissible situations where courts would interfere in the policy decisions of the government, and particularly if a policy decision was in actual or threatened violation of the fundamental rights guaranteed under the Constitution, or in violation of other provisions of the Constitution. The necessity of vindicating constitutionally secured personal liberties and fundamental freedoms was the principal justification for the anti-majoritarian power that judicial review conferred upon courts.
  5. An executive order termed as a policy decision was not beyond the pale of judicial review. Whereas courts would not interfere with the nitty-gritty of the policy, or substitute one by the other but it would not be correct to contend that courts would lay its judicial hands off, when a plea was raised that the impugned decision was a policy decision. Interference therewith on the part of the courts would not be without jurisdiction as it was subject to judicial review.
  6. Broadly, a policy decision was subject to judicial review on the following grounds:
    1. if it was unconstitutional;
    2. if it dehored the provisions of the Act and the regulations;
    3. if the delegatee had acted beyond its power of delegation;
    4. if the executive policy was contrary to the statutory or a larger policy.
  7. The impugned circular was aimed at harmonization of various intervention measures at the port of entry in order to reduce the duplication of roles, the cost of doing business and increase efficiency of government entities operating at the ports of entry.  The agencies had been grouped into 5 categories with the petitioner’s members being grouped in category one that comprised of Port Health, Immigration, Kenya Revenue Authority, Customs Department, Port Facility Security Office, (PFSO), Kenya Ports Authority and whose mandate would be to have full access to vessels and was the only agencies whose representatives would be allowed to board docked vessels at the port.
  8. Under section 15(c) of the Public Health Act, the national government was tasked with ensuring that the implementation of rights to health specified in the Bill of Rights and more particularly the progressive realization of the right of all to the highest attainable standard of health including reproductive health care and the right to emergency treatment. On public and environmental health, section 68 of the Public Health Act provided that the national health system was to devise and implement measures to promote health and to counter influences having an adverse effect on the health of the people.
  9. Under section 73 of the Public Health Act, the Minister was mandated to make rules prescribing the powers and duties of Port Health Officers and the procedure to be followed in the examination of, and the granting of pratique to vessels and requiring every master of a vessel on arrival at any port or place in Kenya to furnish a declaration of health in respect of the existence or suspected existence on board, in any person, animal or thing, of any infectious disease, or any other disease, among others.
  10.  Going by the impugned circular, the national government through its state agencies had a duty to ensure that when exercising its mandate under the statutes, the mandate was not in violation of articles 43(1) and 46(1) of the Constitution when it came to goods that were for human consumption and affected the environment. In exercising its statutory mandate, the national government was supposed to ensure that its actions were not unconstitutional, contra-statute and/or ultra vires.
  11. The petitioner had not demonstrated how the impugned circular was unconstitutional, contra–statute, or ultra-vires, and how it impeded their rights and the rights of consumers guaranteed under statute. It was not clear how the impugned circular was in violation of articles 43(1) and 46(1) of the Constitution. The fact that the 2nd respondent had been given the lead agency status had not in any way impeded on the statutory mandate of the port health officers, since the aim of appointing the 2nd respondent as a lead agency was for proper co-ordination of, and harmonization of various intervention measures to reduce the duplication of roles by various government agencies at the ports of entry, to increase efficiency and reduce the cost of doing business. If a port health officer had suspicion that a particular consignment was questionable, then they had the power to board any vessel for the purpose of inspection and raise the concerns through an accountability form on their online system regardless of whether an enhanced certificate of conformity was issued or not. Further, it was not illegal for the Head of Public Service to constitute a multi-agency team in order to reduce the cost of business and enhance efficiency at the port.
  12. The impugned circular implied that the petitioner’s members would be allowed to exercise their mandate. However, the port health officers were not allowed to stop any cargo released by the 1st or the 2nd respondents and in case of any intervention where necessary, the same would be made to the Lead Agency (KPA) through the 1st respondent.
  13. Section 60(1) of the Public Health Act provided for powers of the port health officers, whereas section 62 of the Act made provisions on the granting of restricted or conditional pratique to and quarantining of vessels. Section 30 of the Food, Drugs and Chemical Substances Act on the other hand stipulated the powers of authorized officers. Those were the statutory provisions that granted members of the petitioner their mandate. The extent of that mandate was clear.  It was not limited in any way. Therefore, the directive by the 2nd respondent restricting the port health officers from stopping any cargo released by the 1st or 2nd respondent was contra-statute as there was no statutory provisions that had been relied on that limited the mandate of the port health officers.
  14. The 2nd respondent’s directive went against the guidelines provided in the impugned circular and in particular, clause 7, which clarified that all government agencies with mandate over international trade operations would continue to remain accountable for the discharge of their respective mandates in accordance with the existing legal frameworks, but subject to adherence with the guidelines provided in the circular.
  15. The purpose and intent of the impugned circular in creating the multi-agencies at the port of entry was to limit the duplication of roles and to increase efficiency.  A lead agency was appointed for proper coordination and harmonization of the various intervention measures. The circular was never meant to take away the mandate of any agency. Consequently, the 2nd respondent’s directive restricting the mandate of the port health officers was contra-statute and ultra-vires and the same was quashed.
  16. The main prayer of the petition concerning the impugned circular had not been proved, and to that extent, the petition failed.

Petition partly allowed.
Orders

  1. A declaration issued that the 2nd respondent’s directive referenced GMO/2/3 that was grounded on the Government of Kenya circular OP/CAB/9/83A contravened articles 43(1) and 46(1) of the Constitution as it limited Port Health Officers from carrying out their functions as envisaged under the Public Health Act, the Food Drugs and Chemical Substances Act as well as the International Health Regulations.
  2. An Order of certiorari issued to bring into the court and quash the 2nd respondent’s directive referenced GMO/2/3 that was grounded on the Government of Kenya circular OP/CAB/9/83A as it contravened articles 43(1) and 46(1) of the Constitution as it limited Port Health Officers from carrying out their functions as envisaged under the Public Health Act, the Food, Drugs and Chemical Substances Act as well as the International Health Regulations.
  3. Parties ordered to bear own costs.
CIVIL PRACTICE AND PROCEDURE

Discretion of a taxing officer to award costs.

R. Billing & Co. Advocates v Kundan Singh Construction Limited (Now KSC International Limited)
Civil Appeal No. 254 of 2013
Court of Appeal at Nairobi
W. Ouko, W. Karanja and PO Kiage, JJA
July 10, 2020
Reported by Ribia John

Download the Decision

Civil Practice and Procedure – taxation of costs – advocate-client bill of costs arising from civil proceedings – discretion of a taxing officer - under what circumstances would a court interfere with the discretion of the taxing officer to award costs.

Brief facts:
The appellant filed the instant advocate-client bill of costs before the taxing officer arising from the proceedings in HCCC No.164 of 2009. Based on what they believed they deserved for their services, the appellant drew a bill of costs in which it sought to be paid a total of Kshs. 39,968,752.00, less Kshs. 2,180,000.00 which it had received. That was however taxed down to Ksh.1,400,000.00 by the taxing officer, to which was added one-half, that was, Kshs. 700,000.00, in terms of Part B of Schedule VI 1(a) and (b) of the Advocates Remuneration (Amendment) Order, 2006, translating to Kshs. 2,100,000.00. To that, the appellant further added that Kshs. 336,000.00 was deducted being 16% VAT, resulting in a total instruction fees of Kshs. 2,436,000.00/=.
Aggrieved, the appellant filed a review application in which the appellant urged the High Court to review the decision of the taxing officer, claiming that they were instructed to take steps on behalf of the respondent in a claim whose aggregate value was in the sum of Ksh. 1,734,581,100. The High Court dismissed the review application. Aggrieved the appellant filed the instant appeal.

Issue:

Under what circumstances would a court interfere with the discretion of the taxing officer to award costs. Read More...

Held:

  1. The value of the subject matter of a suit for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case), but if the same was not so ascertainable the taxing officer was entitled to use his discretion to assess such instruction fee as he considered just, taking into account, amongst other matters, the nature and importance of the cause or matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.
  2. In the instant suit, there was no judgment or settlement between the parties, and therefore the value of subject matter of the suit could only be determined from the pleadings. The appellant based its claim on Kshs. 1,734,581.100 as the value of the subject matter and asked the taxing officer to assess instructions fees on this sum. The main purpose for filing the suit was to obtain injunctive and declaratory relief against the bank by restraining it, inter alia, from wrongfully and prematurely calling in any of the three guarantees which were set out in the plaint. In order to obtain an order of injunction, the respondent had to show, by affidavit that it stood to suffer irreparable loss and damage if the three guarantees were called. That was not to say that the sums in those guarantees constituted the value of the claim so as to demand instructions fees based on them. It was never alleged that the respondent instructed the appellant to demand recovery of any specific sum of money to be paid to it by anyone and we cannot discern any such claim from the plaint or any other pleadings.
  3. The taxing officer was entitled to exercise discretion in assessing instructions fees and in doing so, took into account, the nature and importance of the dispute, the interest of the parties, the general conduct of the proceedings and all other relevant circumstances. The taxing officer allowed instruction fees in the sum of Kshs. 2,000,000.00, which was by far more than the basic fee of Kshs. 3,000.00 provided for in Schedule VI of the Advocates Remuneration Order.
  4. The instant court would not interfere with the exercise of judicial discretion unless in the exercise of that discretion the court misdirected itself in some matter and as a result arrived at a wrong decision, or that it was manifest from the case as a whole that the court was clearly wrong in the exercise of discretion and as a result occasioned injustice. Courts had to extend some latitude to taxing officers and avoid unnecessary interference with questions of quantum in which taxing officers had greater experience, unless, there was some misdirection. There was no such transgression in the instant case.
  5. The taxation of costs was not a mathematical exercise; it was entirely a matter of opinion based on experience. A court would not interfere with the award of a taxing officer, and particularly where the taxing officer was an officer of great experience, merely because the court thought the award was somewhat too high or too low: it would only interfere if the court thought the award was so high or so low as to amount to an injustice to one party or the other.
  6. The trial court could not be faulted for upholding Kshs. 2,687,247 allowed by the taxing officer because that was what was proportionate to the work done. The appellant’s involvement in the action was very brief and limited. It was only involved in filing the plaint, applying for an injunction and replying to the defences, all of which were not complicated.
  7. While the practice of law, no doubt, was well-paying, it was doubtful that an advocate would earn the kind of fees demanded by the appellant for merely filling a suit for declaratory and permanent injunctive orders, simultaneously with an application for interlocutory injunction, without more. While the successful party was entitled to be reimbursed expenses reasonably incurred in a litigation, on the other hand, the advocates; remuneration should never be at such a level as to amount to an impediment to access to justice, as high costs of litigation would make courts a preserve only of the wealthy.
  8. There was no mathematical formula by which to calculate the instruction fee; that the exercise involved intricate balancing act, weighing the diverse general principles, maintaining consistency in the level of costs; and that bearing in mind all these intricate balancing acts, the reviewing court could not lightly interfere with what in the taxing officer’s opinion was a reasonable fee. There had to be a compelling reason to justify such interference.

Appeal dismissed with costs.

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