Weekly Newsletter 038/2020



Kenya Law

Weekly Newsletter


An advocate acting for the victim can actively participate in criminal proceedings to safeguard their constitutional and statutory rights

Joseph Lendrix Waswa v Republic [2020] eKLR
Petition No. 23 of 2019
Supreme Court of Kenya
DK Maraga CJ & P; MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ
September 4, 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 advocate of the family of the victim in a criminal trial sought to be allowed to actively participate in the trial - whether an advocate acting for a victim could be permitted to actively participate during criminal proceedings to safeguard the victim’s constitutional and statutory rights - guiding principles in determining whether a victim or his legal representative could participate in a criminal trial - manner and extent of the participation - whether in allowing such an advocate to actively participate in the criminal proceedings would violate the accused person’s right to a fair trial - what were the benefits of an expeditious trial - Constitution of Kenya, 2010, articles 20(3), 27, 50, 159(2(b) and 259(1) and(3); Victim Protection Act, 2014, sections 9.
Constitutional Law – Director of Public Prosecutions – functions – prosecution of crimes - where the advocate of the family of the victim in a criminal trial sought to be allowed to actively participate in the trial - whether a victim or his legal representative could prosecute crimes on behalf of the Director of Public Prosecutions - Constitution of Kenya, 2010, article 157; Victim Protection Act, 2014, 9(2)(a).
Criminal Law – appeals – criminal appeals – interlocutory appeals in criminal trials - whether a party in a criminal trial could appeal against an interlocutory ruling, and if so, at what time should the appeal be made - what were the circumstances in which an interlocutory appeal could be allowed – Constitution of Kenya, 2010, article 50(2)(q); Criminal Procedure Code (Cap 75), sections 347 and 379(1).
Jurisdiction – jurisdiction of appellate courts – jurisdiction to interfere with the exercise of discretion by a trial court - what were the circumstances in which an appellate court could interfere with exercise of discretion of a trial court.

Brief facts:
The appellant was charged with the offense of murder in the trial court. After nine witnesses for the prosecution had testified, counsel for the family of the deceased (the victim) made an oral application for leave to actively participate in the proceedings. The trial court observed that the law had shifted the traditional parameters of a victim in a criminal case and therefore a victims’ counsel could no longer be considered a passive observer in criminal proceedings. However, the trial court noted that the counsel for the victim could not be active and parallel to that of the prosecutor.
Consequently, the trial court allowed the participation of the counsel watching brief limited to the following instances: on submission at the close of the prosecution case whether there was a case to answer; final submission should the accused be put on his defence; on points of law should such arise in the course of trial, and upon application at any stage of the trial for the consideration by the court.
Aggrieved by the trial court’s ruling, the appellant lodged an appeal to the Court of Appeal. The Court of Appeal being satisfied that the impugned rights given by the trial court to the victim of the offence (the father of the deceased) were in conformity with the Constitution of Kenya, 2010 and the Victim Protection Act, 2014 (VPA), upheld the ruling of the trial court and dismissed the appeal in its entirety. Aggrieved by the decision of the Court of Appeal, the appellant filed the instant appeal.


Issues:

  1. Whether an advocate acting for the victim could be permitted to actively participate in criminal proceedings to safeguard the victim’s constitutional and statutory rights.
  2. Whether allowing an advocate acting for the victim to actively participate in the criminal proceedings would violate the accused right to a fair trial by exposing them to double prosecution.
  3. What were the guiding principles in determining whether a victim or his legal representative could participate in a trial and the manner and extent of the participation?
  4. Whether a victim or his legal representative could prosecute crimes on behalf of the Director of Public Prosecutions.
  5. Whether a party in a criminal trial could appeal against an interlocutory ruling, and if so, at what time should the appeal be made?
    1. What were the circumstances in which an interlocutory appeal could be allowed?
  6. What were the circumstances in which an appellate court could interfere with the exercise of discretion of a trial court?
 

Relevant provisions of the law
Constitution of Kenya, 2010
Article 20(3)

In applying a provision of the Bill of Rights, a court shall—

(a) develop the law to the extent that it does not give effect to a right or fundamental freedom; and
(b) adopt the interpretation that most favours the enforcement of a right or fundamental freedom.

Article 259
(1) This Constitution shall be interpreted in a manner that—

(a) promotes its purposes, values and principles;
(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
(c) permits the development of the law; and
(d) contributes to good governance.

(2) ……..
(3) Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking…


Held:
  1. As the overriding element of State control inevitably pit the power of the State against the accused, the necessity of protecting the accused’s rights within that power imbalance arose to ensure that there was However, that could inadvertently eclipse the recognition of the victim’s inherent interest in the response by the criminal justice system to the crime. Kenya’s progressive Constitution had captured and addressed all those scenarios.
  2. The right to fair hearing was provided for under article 50(1) of the Constitution and the attendant rights of an accused person were set out in article 50(2). The Constitution also recognized victims of offences. In addition to the constitutional underpinning, the Victim Protection Act (VPA) was enacted deliberately in 2014 to give effect to article 50(9). Thus, the rights of victims in a trial process also had statutory underpinning.
  3. Although the adversarial criminal trial process was a contest between the State, represented by the Director of Public Prosecutions (DPP), and the accused, usually represented by defence counsel and the traditional role of victims in a trial was often perceived to be that of a witness of the prosecution, that flowing from both the Constitution and the Victim Protection Act (VPA) and in particular section 9(2)(a) of the VPA,
  4. The participation of victims in criminal trial proceedings, though a novel trend in Kenyan laws, was in accord with international developments that had embraced the place of victims in the trial process. Kenya’s Constitution under articles 2(5) and (6) permitted the court to apply the general rules of international law and also provided that any treaty or convention ratified by Kenya formed part of the law of Kenya.
  5. The role of a victim in a criminal trial was recognized in the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985). In that Declaration, in the context of the criminal justice system, it was a central obligation of governments to comply with the victim’s rights to access to justice and fair treatment, restitution, compensation and assistance.
  6. Under article 68(3) of the Rome Statute, of the International Criminal Court (ICC) victims before the ICC were granted far-reaching rights. In light of the large degree of discretion accorded to the judges conducting the trial, the practice of the ICC had developed to allow victims:-
    1. to make an opening and closing statement (that was also in consonance with rule 89(1) of the ICC Rules of Procedure and Evidence);
    2. to attend and participate in hearings and status conferences through written submissions and oral argument;
    3. to introduce evidence and challenge admissibility of evidence with leave of the court; and
    4. to question witnesses and/or the accused under the strict control of the court. Where there were a large number of victims admitted to participate in the proceedings, the court could limit the number of lawyers representing them pursuant to rule 90(2)-(4) of the ICC Rules of Procedure and Evidence.
  7. The emerging picture from other jurisdictions was that the criminal justice processes should empower victims and their voices should be heard, not only as witnesses for the prosecution but as rights holders with a valid interest in the proceedings and the outcome of the cause.
  8. Article 259(1) and (3) of the Constitution was instructive on how to construe their rights under article 50(9) of the Constitution. Articles 20(3) and 50(9) of the Constitution read together with the Victims Protection Act (VPA) affirmed that victims had rights in Kenya’s criminal justice system. Those rights were stipulated in section 9 of the Victims Protection Act (VPA). Article 27 of the Constitution also provided that . Both the Constitution and the Victims Protection Act (VPA) sought to ensure the fairness of justice procedures applied to both the victims and accused particularly on the right to a fair hearing, timeliness, respect, dignity, and neutrality.
  9. The trial court being an impartial entity that oversaw the progress of a case had the ultimate function of determining the accused’s guilt or innocence. Its aim was to establish the truth. The purpose of criminal proceedings, generally, was to hear and determine finally whether the accused had engaged in conduct which amounted to an offence and, on that account, was deserving of punishment. Thus, the rights of the accused could not be considered in isolation without regard to those of the victim. Victims too had a legitimate interest in the court’s exercise of its jurisdiction. The criminal justice system should cultivate a process that inspired the trust of both the victim and the accused.
  10. Considering the rights of the accused, the victim and society as a whole in a criminal trial was not only fair, pragmatic but also constitutionally viable. The trial court had to protect the rights of all parties involved in criminal proceedings. There was a public interest in ensuring that trials were fair. That interest could be served by safeguarding the rights of the accused, the objectivity of the prosecution and, by acknowledging the victim’s interest. The rights of the accused and the public interest should be secured and fulfilled. The rights of victims did not undermine those of the accused or the public interest. The true interrelationship of the three was complementary. The participatory rights of the victim did not violate the fair trial rights of the accused. A victim participate in a trial in person or via a legal representative.
  11. Once a victim or his legal representative made an application to participate in a trial, it was the duty of the trial court to evaluate the matter before it, consider the victim’s views and concerns, their impact on the accused person’s right to a fair trial, and subsequently, , determine the extent and manner in which a victim could participate in a trial. Since participatory rights were closely related to the rights of the accused and the right to a fair and expeditious trial, they should be granted in a judicious manner which did not cause undue delay in the proceedings and thus prejudice the rights of the accused.
  12. Discretionary pronouncements of a court formed an integral part of a court’s jurisdiction and should not be interfered with unless an appellate court was satisfied that the exercise of that discretion was improper and, therefore, warranted interference. A court had to be satisfied that the trial court in exercising discretion misdirected itself and had been clearly wrong in the exercise of the discretion and that as a result, there had been injustice. In the instant case, there was no need to interfere with the trial court’s discretionary pronouncements.
  13. Article 157(1) of the Constitution established the office of the DPP. The State’s prosecutorial powers were vested in the DPP under article 157 of the Constitution. That office, under article 157(10), neither required the consent of any person to institute criminal proceedings nor was it under the direction or control of any person or authority. Those provisions were also replicated in section 6 of the Office of the Director of Public Prosecutions Act, 2013. The office of the DPP was the sole constitutional office with the powers to conduct criminal prosecutions.
  14. The victim had no active role in the decision to prosecute, or the determination of the charge upon which the accused would finally be tried. That was the sole duty of the DPP. While the victim of a crime could participate at any stage of the proceedings as deemed appropriate by the trial court, a victim or his legal representative did not have the mandate to prosecute crimes on behalf of the DPP. The DPP had to at all times retain control of, and supervision over the prosecution of the case. As such, the constitutional and statutory power of the DPP to conduct the prosecution was not affected by the intervention of the victim in the process.
  15. A victim could not and did not wear the hat of a . When victims presented their views and concerns in accord with section 9(2) (a) of the Victim Protection Act (VPA), victims were assisting the trial court to obtain a clear picture of what happened (to them) and how they suffered, which the trial court could decide to take into account. Victim participation should meaningfully contribute to the justice process. However, that did not mean that the court’s judgment would follow the wishes of the victim. The trial court would take into account the law, facts, all the different interests, and concerns, including the rights of the defence and the interests of a fair trial to arrive at a sagacious decision.
  16. The following would assist the trial court when it was considering an application by a victim or his legal representative to participate in a trial and the manner and extent of the participation:-
    1. the applicant had to be a direct victim or such victim’s legal representative in the case being tried by the court;
    2. the court should examine each case according to its special nature to determine if participation was appropriate, at the stage participation was applied for;
    3. the trial court had to be satisfied that granting the victim participatory rights should not occasion an undue delay in the proceedings;
    4. the victim’s presentation should be strictly limited to the views and concerns of the victim in the matter granted participation;
    5. victim participation should not be prejudicial to or inconsistent with the rights of the accused;
    6. the trial court could allow the victim or his legal representative to pose questions to a witness or expert who was giving evidence before the court that had not been posed by the prosecutor;
    7. The trial court had control over the right to ask questions and should ensure that neither the victim nor the accused were not subjected to unsuitable treatment or questions that were irrelevant to the trial;
    8. the trial court should ensure that the victim or the victim’s legal representative understood that prosecutorial duties remained solely with the DPP;
    9. while the victim’s views and concerns could be persuasive; and in the public interest that they were acknowledged, those views and concerns were not to be equated with the public interest;
    10. the court could hold proceedings in camera where necessary to protect the privacy of the victim;
    11. while the court had a duty to consider the victim’s views and concerns, the court had no obligation to follow the victim’s preference of punishment.
  17. The right to have a trial commence and conclude without unreasonable delay was an accused person’s constitutional guarantee under article 50(2)(e) of the Constitution. A victim also had the right to have the trial begin and conclude without unreasonable delay under section 9(1)(b) of the Victim Protection Act (VPA). In addition, article 159(2)(b) of the Constitution obligated courts not to delay justice. Further, treaties and international instruments that Kenya had ratified such as the African Charter on Human and People’s Rights, Rome Statute of the ICC, and the International Covenant on Civil and Political Rights (ICCPR) contained similar provisions, that bound the court in all criminal justice procedures and processes.
  18. The benefits of an expeditious trial could not be gainsaid. A speedy trial ensured that the rights of the accused person were secured; it minimized the anxiety and concern of the accused; it prevented oppressive incarceration; and protected the reputation, social and economic interests of the accused from the damage which flowed from a pending charge. It also protected the interests of the public, including victims and witnesses, and ensured the effective utilization of resources. Additionally, it lessened the length of the periods of anxiety for victims, witnesses, and their families and increased public trust and confidence in the justice system.
  19. In conformity with the Constitution, courts should shun situations where an accused’s right to a fair trial was prejudiced by virtue of undue delay. Courts possessed the power to take appropriate action to prevent injustice. That power was derived from the public interest that trials were conducted fairly and that as far as possible the accused was tried without unreasonable delay the end goal being to achieve prompt justice in criminal cases.
  20. There was no provision in both the Constitution and the for interlocutory criminal appeals. The Constitution under article 50(2)(q) provided that every accused person had the right, Similarly, the CPC under sections 347 and 379(1) only allowed appeals by persons who had been convicted of an offence.
  21. The delay of over six years defeated the intention of the framers of the Constitution and of Parliament to have criminal trials concluded expeditiously. The guarantee to have a criminal trial conducted without undue delay related not only to the time by which a trial should commence but also the time by which it should end, judgment rendered and any applicable appeals or reviews completed. Therefore, although criminal trials were not time bound like election petitions, there was need to have them determined expeditiously in line with the constitutional prescriptions.
  22. The right of appeal against interlocutory decisions wa but and await the final determination by the trial court. A person seeking to appeal against an interlocutory decision had to file the intended notice of appeal 14 days of the trial court’s judgment. However, exceptional circumstances could exist where an appeal on an interlocutory decision could be allowed, these included:-
    1. where the decision concerned the admissibility of evidence, which, if ruled inadmissible, would eliminate or substantially weaken the prosecution case;
    2. when the decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal; and
    3. where the decision entailed the recusal of the trial court to hear the cause.
Petition dismissed.
Orders
  1. For the avoidance of doubt, the determination in Criminal Appeal No. 132 of 2016 was upheld.
  2. In view of the inordinate delay of the original murder trial, occasioned by appeals relating to an interlocutory matter, the substantive matter was directed to be heard and determined on the basis of priority.

Kenya Law
Case Updates Issue 038
/2020

Case Summaries

EVIDENCE LAW Requirements for admissibility of documents from non-commonwealth countries in Kenyan courts

Techno Service Limited v Nokia Internation Oy-Kenya & 3 others [2020] eKLR
Civil Suit No. 118 of 2018
High Court at Nairobi
MM Kasango, J
July 29, 2020
Reported by Kakai Toili

Download the Decision

Evidence Law – admissibility of evidence – admissibility of documentary evidence from non-commonwealth countries – where an affidavit in support of an application was sworn in a non-commonwealth country - what were the requirements to be met for documents from non-commonwealth countries to be admissible in Kenyan courts – Evidence Act, Cap 80, section 88 .
Civil Practice and Procedure – advocates – notice of appointment of advocates – where an advocate filed an application in a suit without filing a notice of appointment  - what was the effect of failure of a firm of advocates filing an application in a suit before filing a notice of appointment - Civil Procedure Rules, 2010, Order 9 rule 1.
Civil Practice and Procedure – affidavits – affidavits in support of applications – where an earlier dated affidavit was filed in support of a later dated affidavit -  whether an earlier dated affidavit could support a later dated application - Civil Procedure Rules, 2010, Order 19 rule 8.
Civil Practice and Procedure – suits – institution of suits – institution of suits by companies – requirements – resolution of the board of directors or general meeting of members - whether it was mandatory for a board of directors or a general meeting of members of a company to resolve to instruct counsel to file a suit on behalf of the company before the suit could be filed.
Civil Practice and Procedure – suits - summons to enter appearance – extension of validity of summons – requirement of filing an application to seek extension of validity - whether a court could extend the validity of summons without an application being made to that effect – Civil Procedure Rules, 2010, Order 5 rule 2.
Civil Practice and Procedure – judgments – entering of judgments as prayed in a plaint – where judgment was entered as prayed in a plaint which sought declaratory orders – where the judgment was entered without formal proof -  whether a judgment could be entered without formal proof where there were prayers in the plaint seeking declaratory orders.

Brief facts:
The plaintiff through a notice of motion application sought an order to serve summons and a plaint on the 1st defendant by way of substituted service, through a newspaper advertisement in a Kenyan newspaper.  After an ex parte hearing of that application the court granted the plaintiff leave to serve the 1st defendant by substituted service through newspaper advertisement. On October 9, 2019, the plaintiff served the 1st defendant as ordered by the court. In default of appearance, the court entered judgment against the 1st defendant as prayed in the plaint.
The instant application, the defendants sought among others orders that the court set aside the default judgment entered against the 1st defendant and that the court stay the hearing of the suit and direct that the dispute be referred to arbitration. The application was premised on among other grounds that; all the four defendants were foreign companies; that the service of summons through the Daily Nation newspaper did not get the attention of the 1st defendant but rather it was later that a local counsel for the 1st defendant found that advertisement; and that the summons served through newspaper advertisement had expired having been issued by the court on July 2, 2018. 

Issues:

  1. What were the requirements to be met for documents from non-commonwealth countries to be admissible in Kenyan courts?
  2. What was the effect of failure of a firm of advocates filing an application in a suit before filing a notice of appointment?
  3. Whether an earlier dated affidavit could support a later dated application.
  4. Whether it was mandatory for a board of directors or a general meeting of members of a company to resolve to instruct counsel to file a suit on behalf of the company before the suit could be filed.
  5. Whether a court could extend the validity of summons without an application being made to that effect.
  6. Whether judgment could be entered without formal proof where there were prayers in the plaint seeking declaratory orders? Read More..

Relevant provisions of the law
Civil Procedure Rules, 2010
Order 5
Rule I
(1)   When a suit has been filed a summons shall issue to the defendant ordering him to appear within the time specified therein

 Rule 2
(1)    A summons (other than a concurrent summons) shall be valid in the first instance for twelve months beginning with the date of its issue and a concurrent summons shall be valid in the first instance for the period of validity of the original summons which is unexpired at the date of issue of the concurrent summons. 2 (1) A summons (other than a concurrent summons) shall be valid in the first instance for twelve months beginning with the date of its issue and a concurrent summons shall be valid in the first instance for the period of validity of the original summons which is unexpired at the date of issue of the concurrent summons.
(7) Where no application has been made under subrule (2) the court may without notice dismiss the suit at the expiry of twenty-four months from the issue of the original summons.

Held:

  1. Order 9 rule 1 of the Civil Procedure Rules required an advocate acting for a party be appointed to so act.  There was no notice of appointment of the firm of advocates which filed an application on behalf of the 1st defendant (the firm).  That lack of notice of appointment by the firm was contrary to the provision of the law for them to file an application when they had not been appointed by the 1st defendant to act for it. The only way an advocate could prove he/she was an authorized agent of a party was by filing a notice of appointment. Having failed to file that notice the firm had no legal basis to file the notice of motion application under consideration; the firm was thus a stranger in the suit.
  2. The first document filed by the 1st defendant in the action was the application under consideration. Section 6 of the Arbitration Act required a party seeking stay of proceedings and referral to arbitration to promptly file that application before the court. The 1st defendant did not take any other steps in the proceedings other than the application under consideration. Therefore, there was no basis for the plaintiff to argue that the 1st defendant’s prayer for stay of proceedings and referral to arbitration was contrary to section 6 of Arbitration Act.
  3. Order 19 rule 8 of the Civil Procedure Rules provided that unless otherwise directed by the court an affidavit would not be rejected solely because it was sworn before the filing of the suit concerned. The plaintiff was therefore in error to argue that the earlier dated affidavit could not support the later dated application.
  4. Section 88 of the Evidence Act permitted, as admissible in the Kenyan courts, documents which were admissible in the English court. For any documents from a non-commonwealth country, such as the subject affidavit in the instant matter, needed to have the notary’s signature and seal attested, proved or authenticated by affidavit or otherwise. The affidavit of the assistant general counsel of the 1st defendant was sworn before a notary public in the state of Washington but there was no authentication of that notary.
  5. It did not require a board of directors or even the general meeting of members of a company to sit and resolve to instruct counsel to file proceedings on behalf and in the names of the company. Any director, who was authorized to act on behalf of the company, unless the contrary was shown, had the powers of the board to act on behalf of that company. The affidavit of the assistant general counsel was incompetent because the notary’s signature was not authenticated. Consequently, the defendants’ application was unsupported by affidavit and it thereupon could not stand.
  6.  The court had power to strike out the suit because the summons even at the time they were served on the 1st defendant had expired. The court at the instant stage did not have the power to extend the summons. Order 5 rule I(1) of the Civil Procedure Rules showed the preeminence that summons played in a suit. Although a suit was filed against a defendant it was the summons which ordered the defendant to appear within a specified time, that was what Order 5 rule I(1) demonstrated.
  7. The plaintiff’s summons was issued on July 2, 2018; from the reading of Order 5 rule 2(1) of the Civil Procedure Rules, those summons expired on July 2, 2019. Under Order 5 rule 2(2) the court had power to extend, on an application being made, the summons from time to time. No application was made to extend the validity of the summons. When the summons were served on the 1st defendant, through the newspaper advertisement they were already expired. The summons having expired could not be extended.
  8. The court was empowered under Order 5 rule 2(7) of the Civil Procedure Rules to dismiss a suit where summons had not been extended for twenty-four months. The plaintiff’s summons having been issued on July 2, 2019, expired after twenty four months as at July 2, 2020. The summons served on the 1st defendant on October 9, 2019 were expired, invalid and of no effect. They could not invite the 1st defendant to enter an appearance in the instant matter. The judgment entered against the 1st defendant on November 26, 2019, was therefore invalid.
  9. The judgment was invalid because the Deputy Registrar entered judgment as prayed in the plaint yet the prayers in the plaint needed formal proof because they were prayers seeking declaratory orders. The Deputy Registrar’s error in entering judgment as prayed in the plaint was prompted by the plaintiff’s request for judgment application dated October 28, 2019. By that request for judgment, the plaintiff requested for judgment in terms of the prayers prayed in the plaint. What the plaintiff should have requested for was interlocutory judgment as per Order 10 rule 6 of the Civil Procedure Rules. The judgment entered by the Deputy Registrar could not stand because it was final judgment and not interlocutory as it ought to have been.

Notice of Motion application dated March 12, 2020 dismissed with no order as to costs; suit dismissed with no order as to costs.

CONSTITUTIONAL LAW Photocopying machines, printers, money counting machines, among others, formed tools of trade in the banking industry, which could not be attached when executing a decree

Santowels Limited v Stanbic Bank Kenya Ltd [2020] eKLR
Civil Case No. 648 of 2004
High Court at Nairobi
M A Odero, J
July 30, 2020
Reported by Chelimo Eunice

Download the Decision

Civil Practice and Procedure – execution – execution of orders and decrees – execution of decrees against a bank – attachment – property liable to attachment and sale in execution of a decree – what amounted to tools of trade which could not be attached in the banking industry – whether photocopying machines, printers, money counting machines, among others, amounted to tools of trade in the banking industry – Civil Procedure Act (Cap 21), section 44(1)(i) and (ii).
Civil Practice and Procedure – execution – execution of orders and decrees – procedure to be followed when executing a decree – requirement that a notice to show cause be issued to a person against whom execution was applied – whether it was mandatory for a notice to show cause to be issued to a person against whom execution was applied – where proclamation was done eighteen (18) months after issuance of the decree - whether a notice to show cause was required to be issued if the application for execution was made within one year from the date of the order – Civil Procedure Rules, order 22, rule 18.
Evidence Law – execution – execution of decrees - burden of proof – who bore the burden of proving that the judgment creditor had sufficient means to reimburse the decretal sum?

Brief facts:
The court on March 22, 2018 awarded the respondent, among others, a sum of Kshs. 8,498,746.03 plus interest. Consequent upon the judgment, a decree was extracted on May 17, 2018. In execution of the decree, the respondent moved to proclaim the applicant’s goods on November 15, 2019. The applicant then moved to court seeking orders for the setting aside of warrants of attachment and notice of proclamation dated November 14, 2019 and November 15, 2019 respectively. The applicant also sought to stay execution of the decree.

The applicant’s position was that the proclamation was based on an unlawful warrant as no notice to show cause was ever extracted and served yet the decree was over one year old. The applicant argued that it had an arguable appeal which would be rendered nugatory if execution was not stayed and that it stood to suffer substantial loss if the stay orders sought were not granted as the respondent was not be in a position to refund the decretal sum.

Issues:

  1. Who bore the burden of proving that the judgment creditor had sufficient means to reimburse the decretal sum?
  2. Whether it was mandatory for a notice to show cause to be issued to a person against whom execution was applied.
  3. Whether a notice to show cause was required to be issued where proclamation was done eighteen (18) months after issuance of the decree.
  4. Which property was liable to attachment and sale in execution of a decree?
  5. What amounted to tools of trade which could not be attached in the banking industry?
  6. Whether photocopying machines, printers, money counting machines, among others, amounted to tools of trade in the banking industry. Read More..

Relevant provisions of the Law
Civil Procedure Act;
Section 44(1);
“All property belonging to a judgment debtor including property over which or over the profits of which he has a disposing power which  he may exercise for  his own benefit, whether that property is held in his name or in the name of another but on his behalf, shall be liable to attachment  and sale in execution of a decree provided that  the following  shall not be liable to attachment  or sale-

 (i)……………………….                 
 (i) The tools and implements of a person necessary for the performance by him or his trade or profession"

Civil Procedure Rules;
Order 22, rule 18;
(1) Where an application for execution is made:

 (a) More than one year after the date of the decree;
 (b) Against the legal representative of a party to the decree; or
 (c) For attachment of salary or allowance of any person under rule 43; The Court excluding the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him ......".

"... provided that no such notice shall be necessary in consequence of more  than one year having elapsed between the date of the Decree and the application for execution if the Application is made within one year from the date of the court order against the party against whom the execution is applied for, made on any previous application  for  execution  or  in  consequence of  the application being made against the legal representative of the judgment debtor, if upon a previous application for execution  for  execution against the same person, the court   has  ordered  execution  to  issue  against  him, provided further  that no such notice shall be necessary on  any  application  for  the  attachment   of  salary  or allowance  which  is  caused solely  by  reason  of  the judgment  debtor having changed his employment since a previous order for attachment".

Held:

  1. The respondent was a registered company, but it had not annexed any evidence to show what resources were available to the company to enable it refund the decretal amount if and when called upon to do so. While the legal duty was on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it was unreasonable to expect such an applicant to know in detail the resources owned by a respondent or lack of them. Once an applicant expressed that a respondent would be unable to pay back the decretal sum, the evidential burden then shifted to the respondent to show what resources it had since that was a matter which was peculiarly, within its knowledge.
  2. Where there was an allegation that the respondent was not possessed of means, the burden of proof shifted to the respondent to demonstrate, by way of affidavit of means evidence, that it was possessed of such sufficient means that if the decretal sum was paid to it and the appeal was successful, it was in a position to reimburse/refund the decretal sum.
  3. The respondent had not annexed an affidavit of means to confirm the resources available to it. Further, the applicant being a commercial bank in business, was possessed of sufficient means to satisfy any award that could be made against it by the Court of Appeal. In the circumstances, it was prudent to grant a stay sought as that would enable both parties to ventilate their respective arguments before the Court of Appeal.
  4. Proclamation was done eighteen (18) months after issuance of the decree. Therefore, in terms of order 22, rule 18 of the Civil Procedure Rules (Rules), a notice to show cause ought to have been issued by the respondents. However, in terms of the proviso to order 22, rule 18 of the Rules, no notice to show cause was required to be issued if the application for execution was made within one year from the date of the last order against the party whom the execution was applied for.
  5. Order 22, rule 18 of the Rules was couched in mandatory terms. The proviso to the order was not applicable in the instant circumstances. Accordingly, the respondents erred by failing to issue the applicants with a notice to show cause in compliance with order 22, rule 18 of the Rules.
  6. The proclaimed items, according to the proclamation notice, included, photocopying machines, printers, money counting machines, projector machine and vault safe. Those were tools of trade in the banking industry and without them, the applicant would be greatly hampered in carrying out its core mandate on behalf of its customers. Amongst the items which were proclaimed, were necessary tools of trade which under section 44 (1) (ii) of the Civil Procedure Act, were not attachable.
  7. The applicant had demonstrated that it stood to suffer substantial harm if the stay of execution was not granted.

Application allowed, with costs awarded to the applicant.
Orders

  1. Stay of execution of the decree dated March 22, 2018 was granted.
  2. The applicant ordered to deposit as security, within 30 days of the date of the ruling, the sum of Kshs. 4 Million (Four Million only) in a joint interest earning account opened in the name of both counsels.
  3. Failure to deposit the security as ordered would lead to lapse of the stay of execution granted with no further reference to the applicant.
JURI Nature of a review against a decision of a single judge of the Supreme Court

Charles Karathe Kiarie & 2 others v Administrator of the Estate of John Wallace Mathare (Deceased) & 2 others [2020] eKLR
Civil Application No. 4 of 2020
Supreme Court of Kenya
DK Maraga, CJ & P; PM Mwilu, DCJ & VP; MK  Ibrahim, NS Ndungu & I Lenaola SCJJ
August 4, 2020.
Reported by Kakai Toili

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Jurisdiction – jurisdiction of the Supreme Court – appellate and review jurisdiction - nature of a review against a decision of a single judge of the Supreme Court - what were the circumstances in which a decision of a single judge of the Supreme Court could be reviewed - whether the decision of a single judge of the Supreme Court could be appealed against.

Brief facts:
The applicant filed the instant application seeking a review of the ruling a single-judge of the court and for the court to reconsider the applicants’ application made on June 12, 2018. The application made on June 12, 2018 sought among others orders for extension of time for filing a review application against the decision of the single judge disallowing extension of time for filing the reference on taxation against two rulings. The Deputy Registrar of the court had taxed the respondents’ bill of costs at Kes. 2,052,770, aggrieved by that decision, the applicants applied for copies of the taxation proceedings and the Deputy Registrar’s rulings.
The rulings were supplied on May 17, 2018 thus leading to the applicant’s inability to file his reference on taxation within 7 days as required by rule 49 of the Supreme Court Rules. In dismissing the applicant’s application to extend time to lodge references against the taxation ruling, the single judge of the court held that the 27 days delay explained by the applicant as time taken to prepare the application for extension of time was neither reasonable nor credible.

Issues:

  1. What was the nature of a review against a decision of a single judge of the Supreme Court?
  2. Whether the decision of a single judge of the Supreme Court could be appealed against.
  3. What were the circumstances in which a decision of a single judge of the Supreme Court could be reviewed? Read More..

Held:

  1. A review of the decision of a single judge was not an appeal as there could be no appeal from the decision of a single judge of the court to the full court. To allow such an appeal would not only be an abuse of the court process but it would also lead to endless litigation and clog the system. A review was not meant to grant an applicant a second bite at the cherry; it was not a regurgitation of the matter that was before a single judge or limited bench. The focus of a review was the decision of the single judge and not the merits of the substantive application that was the subject of the decision under review.
  2. As a review of a single judge’s decision entailed interference with the exercise of the judge’s discretion, such interference was permitted only in exceptional circumstances. Therefore, for such an application to succeed, the applicant had to satisfactorily demonstrate that in reaching his decision, the judge acted whimsically or misdirected himself in the exercise of his or her discretion and as a result reached a manifestly wrong decision causing an apparent injustice.
  3. Considering the history of the instant matter which was filed in 1995, the applicant had not satisfactorily explained the two delays. Given the period of 7 days within which the references should have been filed, the 27 and 30 days respectively taken to prepare the two references were unreasonable.

Application dismissed; each party to bear its own costs of the application.

CIVIL PRACTICE AND PROCEDURE

Adverse effects of the Covid 19 pandemic deemed to be reasonable explanation to warrant the enlargement of time to file an application of review before the Supreme Court.

William Olotch v Pan Africa Insurance Co. Limited
Civil Application No. 14 of 2020
Supreme Court of Kenya
DK Maraga, CJ and P; PM Mwilu, DCJ and VP; MK Ibrahim, SC Wanjala and SN Ndungu, SCJJ
September 4, 2020
Reported by Ribia John

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Civil Practice and Procedure – review – review of Court of Appeal decision by the Supreme Court – inadvertent delay – application for enlargement of time - whether the adverse effects of the Covid 19 pandemic could be considered as reasonable explanation to warrant the enlargement of time to file an application of review before the Supreme Court – Supreme Court Act, section 21(3); Supreme Court Rules, rule 53.

Brief facts:
The applicant sought enlargement of time to file an application for review of the ruling of the Court of Appeal in Civil Application No. SUPP 15 of 2019. The applicant contended that the delay in filing the application for review was inadvertent, and was caused by the adverse effects posed by the Covid 19 pandemic, including restrictions on travel imposed by the Government and coupled with the challenges in accessing reliable internet

Issues:

Whether the adverse effects of the Covid 19 pandemic could be considered as reasonable explanation to warrant the enlargement of time to file an application of review before the Supreme Court. Read More...

Held:

  1. The Supreme Court had the jurisdiction to consider and allow an application for leave to extend time as settled   as pronounced under section 21(3) of the Supreme Court Act and rule 53 of the Supreme Court Rules, 2012. The application by the applicant satisfied the principles set out by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others (2014) eKLR
  2. The applicant had a reasonable and cogent explanation and adduced sufficient reasons for the inadvertent delay in filing his application for review of the Court of Appeal decision on certification in Civil Application No. SUPP 15 of 2019. The respondent had not shown what prejudice would be occasioned upon him if the applicant’s application was allowed.

Application allowed.
Orders

  1. The Respondent was to file and serve its response to the originating motion within 14 days of service.
  2. The Deputy Registrar was to issue any and further directions as could be deemed necessary in the circumstances.
  3. Each party shall bear its own costs.

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