Test to be met before an application for a pre-charge detention for the continued detention of an accused person can be allowed
Sudi Oscar Kipchumba v Republic (Through National Cohesion & Integration Commission)  eKLR
Criminal Revision No. 208 of 2020
High Court at Nakuru
J Ngugi, J
September 18, 2020
Reported by Kakai Toili
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Constitutional Law – fundamental rights and freedoms – rights of an arrested person – where the trial court had allowed an application to detain the applicant for 7 more days pending investigations – where the order of detention of the applicant was sought before the applicant was formally charged with a criminal offence – test to be met before a pre-charge detention could be allowed – whether the pre-charge detention was necessary and met the threshold of compelling test required by the Constitution where a person’s speech led to demonstrations against him - whether pre-charge detention by the police was unconstitutional for being repugnant to the ethos of constitutional justification of the exercise of power and authority - Constitution of Kenya, 2010, articles 21(1), 49(1)(f) and 259.
Jurisdiction - jurisdiction of the High Court - revisionary jurisdiction of the High Court - where an accused person sought the revision of a subordinate court’s pre-charge detention order - whether an accused person could approach the High Court for the revision of a subordinate court’s pre-charge detention order – Constitution of Kenya, 2010, article 165.
The applicant had presented himself to the police after learning that the police were looking for him and after the police had camped outside his home the previous few hours. The applicant’s home was in Kapseret, where he was the area Member of Parliament. Upon being presented before the trial court, the State sought leave of the court to detain the applicant for fourteen (14) days to give it an opportunity to conclude investigations and bring charges against him.
In its application in the lower court, the State stated that it was doing investigations with a view to bringing five charges against the applicant as follows: hate speech; assault of a police officer; offensive conduct; unlawful possession of firearms and ammunition; and resisting arrest. The trial court held that the State had made out a case for the continued detention of the applicant for a further period of seven days. Aggrieved by that decision, the applicant filed the instant application seeking among others orders that pending the determination of the application the instant court admits the applicant to bail or bond on reasonable terms.
- What was the test to be met before an application for a pre-charge detention for the continued detention of an accused person could be allowed?
- Whether pre-charge detention by the police was unconstitutional for being repugnant to the ethos of constitutional justification of the exercise of power and authority.
- Whether pre-charge detention was necessary and met the threshold of compelling test required by the Constitution where a person’s speech led to demonstrations against him.
- Whether an accused person could approach the High Court for the revision of a subordinate court’s pre-charge detention order.
Relevant provisions of the law
Constitution of Kenya, 2010
Article 49 – Rights of arrested persons
(1) An arrested person has the right -
(f) to be brought before a court as soon as reasonably possible, but not later than –
i) An arrested person has the right -
(g) at the first court appearance, to be charged or informed of the reason for the detention continuing or to be released; and
(h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
- What was before the subordinate court was miscellaneous proceedings where a ruling had been made to hold the applicant in pre-charge detention. Both the terms of the Criminal Procedure Code as well as the radically liberalized revisionary powers of the High Court donated in article 165 of the Constitution permitted the applicant to approach the court for revision as he did.
- It was unlawful for the police to seek to have a person who had been arrested to continue to remain in custody without a formal charge being laid in court. If that trend continued, it would erode all the gains made in the advancement of human rights and fundamental freedoms as provided in the bill of rights since the Constitution was promulgated in August 2010. A person’s right to liberty should be respected at all times unless there were legal reasons for such person to be deprived of his liberty. The police should only arrest a person when they have prima facie evidence that an offence had been disclosed, which could result in such person being charged with a disclosed offence or a holding charge of the likely offence being presented in court.
- It was repugnant to the ethos of constitutional justification of the exercise of power and authority in which the Constitution was steeped in to encourage such practice even if not categorically unconstitutional textually. In many cases, pre-charge detention by the police would be, in context and effect, unconstitutional. That would be the case where the police conduct revealed a pattern or desire to overreach or to deploy the criminal justice system in a manner which unnecessarily diminished rather than aggrandized personal liberty or autonomy of the arrested individual.
- While the text of article 49(1)(f) of the Constitution, in certain circumstances and contexts, comprehended a situation where a person was presented before a court without being formally charged and was thereby informed of the reasons for his continued detention through the State’s application to have him so held, the State had to satisfy a double test:
By virtue of articles 21(1) and 259 of the Constitution, the court had to act to aggrandize not diminish the personal liberties of arrested individuals in line with the other three interests. Differently put, the State had to demonstrate that there were compelling reasons to deny pre-charge bail while balancing all factors within the complex permutation presented by those quadruple interests and without reifying or essentializing any.
- to persuade the court that it was acting in absolute good faith and that the continued detention of the individual without a charge being preferred whether provisional or otherwise was inevitable due to existing exceptional circumstances;
- to demonstrate that the continued detention of the individual without charge was the least restrictive action it could take in balancing the quadruple interests present in a potential criminal trial;
- the rights of the arrested individual;
- the public interest, order and security;
- the needs to preserve the integrity of the administration of justice; and
- the interests of victims of crime where appropriate.
- The reasons preferred by the State and accepted by the Magistrate’s Court for the continued detention of the applicant did not meet the high threshold in the double-test for the continued detention of an accused before being formally charged for at least four reasons:
- The argument that the applicant was likely to interfere with witnesses because he was a man of immense persuasion and influence seemed eminently pre-textual for at least two reasons:
- Looking at the offences the State said it hoped to charge the applicant with, it was a stretch on credulity to posit that any witness could be unduly influenced by the applicant:
- The critical elements of hate speech were provable not through individual witnesses who could come under the influence of the applicant but by showing the ordinary import of the words uttered by the applicant were calculated to incite members of the public.
- Assault on a police officer would be proved not by a member of the public who could be susceptible to wither under the influence of his Member of Parliament during investigations but by the police officer who was allegedly assaulted.
- Unlawful possession of firearms and ammunition was proved through forensic, documentary and expert evidence.
- Resisting arrest was provable through the factual evidence of the police officers who were present at the time of the attempted arrest.
- It was unclear what the offense of committing offensive conduct would entail in the instant circumstances but such generality and nebulousness of the allegations could not be a ground for limiting constitutional rights of an accused person.
- The State made no efforts whatsoever to demonstrate which witnesses would be interfered with and how such interference would happen at the investigation stage given the offences contemplated. It was not enough to proclaim that an arrested person wielded influence in his line of business, profession, trade or occupation. In order to restrict the person’s right to be released on pre-charge bail, the State had to credibly and specifically demonstrate the likelihood of such interference. The argument that the interests of public order, peace and security necessitated the pre-charge detention of the applicant because his speech had led to demonstrations against him did not meet the high threshold of compelling test required by the Constitution. The reason given appeared to be illogical when set against the granted remedy. There was no indication how holding the applicant for seven days would dissipate the public order, peace and security risk his alleged utterance caused. There was no allegation that the applicant had threatened to make like utterances if they were, indeed, capable of inciting the public. In any event, the applicant had demonstrated a willingness to abide by the condition not make any comments akin to the ones the State found insalubrious and capable of inciting the public. The radical remedy prayed for and granted to the State was not rationally related to the alleged risk.
- The logic espoused by the acontextual and simplistic pitting of public order, peace and security against the personal liberty interests and autonomy of the applicant was a dangerous anti-liberty ethos which was rejected by the Constitution.
- There were no compelling reasons for the continued pre-charge detention of the applicant. All the concerns raised by the State could be accommodated without the very radical measures sought and granted.
- The applicant was to be admitted to bail in the sum of Kshs. 500,000 with respect to all the charges the State contemplated to bring against him as covered in the State’s application before the lower court. Alternatively, the applicant to be released on his personal recognisance of Kshs. 1 million and one surety of similar sum. Those bail/bond terms were to remain in effect and would expire upon the formal charging of the applicant with (a) disclosed offence(s). Upon such eventuality, the trial court would be at liberty to set its own bail/bond terms.
- The applicant should not, before a charging decision was made in his case and thereafter until the order was varied by the trial court, make any public utterances or comments akin to those he wad alleged to have made which the State alleged were capable of inflaming public passions and hostilities among communities.
- The applicant was to desist from addressing any public rally before investigations into this case were complete and a charging decision made.
- The applicant was to report to any police station as summoned by the investigating officer for purposes of completing investigations.
- The State was at liberty to charge the applicant with (a) disclosed offence(s) once investigations were complete and a charging decision made.
- Meanwhile, the applicant was not to be arrested or detained by the police. If a decision to charge him was made, he was to be summoned to present himself to court to take plea
- Each party was at liberty to apply for any further orders.
Case Updates Issue 039/2020
|| Kenya Revenue Authority could not impose a penalty and also undertake criminal prosecution with respect to the same tax liability
Republic v Kenya Revenue Authority & 2 others ex parte Kungu Gatabaki & 4 others; Jacaranda Hotel Limited (Interested Party)  eKLR
Judicial Review Miscellanous Application No. 336 of 2018
High Court at Nairobi
P Nyamweya, J
July 17, 2020
Reported by Chelimo Eunice
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Tax Law – administration of tax – collection and recovery of tax - recovery of unpaid tax – recovery of unpaid tax by suit - whether Kenya Revenue Authority was precluded from recovery of tax by other legal means, other than by civil suit, once there was a default in the payment of tax due on instalment terms - whether Kenya Revenue Authority was precluded from recovery of tax through criminal prosecution – whether Kenya Revenue Authority could impose a penalty and also undertake criminal prosecution with respect to the same tax liability – where Kenya Revenue Authority had elected to make a tax demand and had entered into negotiations with a tax defaulter for the payment of the tax liability, including interest and penalties – whether Kenya Revenue Authority could proceed to undertake criminal proceedings in the circumstances - Tax Procedure Act, section 80.
Tax Law – administration of tax – tax dispute resolution process - tax decisions – what amounted to a tax decision - objections to tax decisions – procedure for objecting a tax decision – appeals against appealable tax decisions – what amounted to an appealable decision - Tax Procedures Act, sections 3, 12, 51 and 52.
Jurisdiction – jurisdiction of the High Court – exhaustion doctrine and alternative statutory dispute resolution mechanisms – exceptions to the exhaustion doctrine – what courts could consider in determining whether exceptions to the exhaustion doctrine applied - where a matter had progressed from merely being a tax liability and payment dispute, to one of criminal prosecution – whether the internal dispute resolution process was applicable in the circumstances – whether the High Court had jurisdiction to determine a matter challenging the processes involved and the law applied to charge a tax defaulter – Constitution of Kenya, 2010, articles 47 and 165(6); Fair Administrative Action Act, section 9.
Judicial Review – certiorari and prohibition - judicial review orders sought to challenge a decision to prosecute and to stop criminal proceedings – principles and circumstances under which courts granted orders prohibiting the commencement or continuation of a criminal trial process - whether merits of the case was one of the grounds for halting criminal proceedings – whether the concurrent existence of criminal proceedings and civil proceedings constituted an abuse of the process of the court - claim that the decision to prosecute was tainted with illegality and procedural impropriety – whether such a decision to prosecute would be quashed and further criminal proceedings stopped.
Legitimate Expectation – rationale for the doctrine of legitimate expectation – application of the doctrine of legitimate expectation - exception to the application of the doctrine of legitimate expectation - requirements for successful reliance on the doctrine of legitimate expectation - emerging principles on the doctrine of legitimate expectation – whether Kenya Revenue Authority by entering into negotiations with a tax defaulter to pay tax due in instalments amounted to a promise not to prosecute.
Constitutional Law - office of the Director of Public Prosecution – powers of the Director of Public Prosecution – whether courts could interfere with powers of the Director of Public Prosecution to investigate and undertake prosecution – what were the circumstances in which courts could intervene in a criminal prosecution.
Judicial Review – application for judicial review – grounds for grant of judicial review remedies - illegality, irrationality and procedural impropriety – when could a decision or act complained of be said to be tainted with illegality - when could a decision or act complained of be considered irrational - when could a decision maker be said to have engaged in a procedural impropriety.
Judicial Review – basis for judicial review – powers of courts in judicial review - whether judicial review could include aspects of merit review of administrative action – whether a reviewing court in judicial review had the mandate to substitute its own decision for that of the administrator - Constitution of Kenya, 2010, articles 47 and 165(6); Fair Administrative Action Act, section 7.
The ex parte applicants sought judicial review orders against the respondents arguing that after the 1st respondent issued the interested party with an enforcement notice to immediately settle tax arrears in the sum of Kshs. 197,581,802/-, the interested party engaged the 1st respondent on a payment plan to offset the arrears. That after extensive negotiations, the interested party agreed with the 1st respondent on a settlement plan. That the interested party had paid a total sum of Kshs. 127, 735,232/- pursuant to the said agreement.
That despite demand, the 1st respondent had failed to give credit to the interested party for the sum of Kshs. 45,000,000/- paid in PAYE, and in an unconscionable turn of events, and without any proper basis, the 1st respondent instituted proceedings against the ex parte applicants for alleged non-payment of Kshs. 153,359,181.50/-. The ex parte applicants contended that having accepted the interested party’s proposal, the 1st respondent was estopped from using the criminal justice system to coerce the interested party to pay the entire amount demanded once. They, thus, challenged, among others, the institution of the criminal proceedings.
In response, the 1st respondent argued, among others, that failure by the interested party to pay taxes due rendered them liable for prosecution and that since it was a company, the offence was to be treated as having been committed by an individual who at the time was a director or other similar officer in the company. That having established that the ex parte applicants were directors of the interested party, they were lawfully charged with the offence of failure to pay taxes by the due date. It argued that the ex parte applicants had not demonstrated that their prosecution was actuated by malice, neither had they demonstrated that the actions by the prosecution were unlawful or in excess of authority. It contended that the resolution of the dispute, if any, would not be by way of judicial review but through a constitutional petition. It further argued that the mere fact that there were pending civil proceedings on the same subject matter did not ipso facto warrant the halting or quashing of criminal proceedings and that power had to be exercised sparingly.
- What were the grounds for grant of judicial review remedies?
- What was the exhaustion doctrine, what were its exceptions and what did courts could consider in determining whether the exceptions applied?
- Whether internal tax dispute resolution process was applicable in a matter which had progressed from merely being a tax liability to one of criminal prosecution.
- Whether High Court had jurisdiction to determine a matter challenging the processes involved and the law applied to prosecute a tax defaulter.
- Whether Kenya Revenue Authority was precluded from recovery of tax by other legal means, other than by civil suit.
- Whether Kenya Revenue Authority could impose a penalty and also undertake criminal prosecution with respect to the same tax liability.
- What were the principles and circumstances under which courts granted orders prohibiting the commencement or continuation of a criminal trial process?
- What were the requirements for successful reliance on the doctrine of legitimate expectation?
Relevant provisions of the Law
Tax Procedures Act
Appealable decision mean an objection, decision and any other decision made under a tax law other than-
(a) a tax decision;
(b) or (b) a decision made in the course of making a tax decision.
Tax decision means-
(a) an assessment;
(b) a determination of the amount of tax payable or that will become payable by a taxpayer;
(c) a determination of the amount that a tax representative, appointed person, director or controlling member is liable for;
(d) a decision on an application by a self-assessment taxpayer;
(e) a refund decision;
(f) a decision requiring repayment of a refund; or
(g) a demand for a penalty.
“(1) A taxpayer may apply in writing to the Commissioner for an extension of time to pay a tax due under a tax law.
(2) When a taxpayer applies for an extension the Commissioner may, if the Commissioner is satisfied that there is reasonable cause—
(a) grant the taxpayer an extension of time for payment of the tax; or
(b) require the taxpayer to pay the tax in such instalments as the Commissioner may determine.
(3) The Commissioner shall notify the taxpayer in writing of the decision regarding the application for extension of time, within 30 days of receiving the application for extension of time.
(4) Where a taxpayer who has been permitted to pay a tax by instalments under subsection (2) defaults in the payment of an instalment, the whole balance of the tax outstanding at the time of default shall become immediately payable.
(5) Despite being granted an extension of time to pay a tax or permission to pay a tax due by instalments by the Commissioner, a taxpayer shall be liable for any late payment interest arising from the original date the tax was due for payment.
(1) Despite any other written law for the time being in force, the Commissioner may recover an unpaid tax as a civil debt due to the Government and, where the amount of unpaid tax does not exceed one hundred thousand shillings, the debt shall be recoverable summarily.
(2) In any suit for the recovery of an unpaid tax, the production of a certificate signed by the Commissioner stating—
(a) the name and address of the person who is the defendant in the suit; and (b) the amount of tax and late payment interest (if any) due by the person, shall be conclusive evidence that the amount stated on the certificate is due from that person.
“(1) A taxpayer who wishes to dispute a tax decision shall first lodge an objection against that tax decision under this section before proceeding under any other written law.
(2) A taxpayer who disputes a tax decision may lodge a notice of objection to the decision, in writing, with the Commissioner within thirty days of being notified of the decision.”
“(1) A person who is dissatisfied with an appealable decision may appeal the decision to the Tribunal in accordance with the provisions of the Tax Appeals Tribunal Act, 2013 (No. 40 of 2013).
(2) A notice of appeal to the Tribunal relating to an assessment shall be valid if the taxpayer has paid the tax not in dispute or entered into an arrangement with the Commissioner to pay the tax not in dispute under the assessment at the time of lodging the notice.”
(1) A person shall not be subject to both the imposition of a penalty and the prosecution of an offence in respect of the same act or omission in relation to a tax law.
(2) If a person has committed an act or omission that may be liable under a tax law to both the imposition of penalty and the prosecution of an offence, the Commissioner shall decide whether to make a demand for the penalty or to prosecute the offence.
(3) If a person has paid a penalty under a tax law and, in respect of the same act or omission for which the penalty was paid, the Commissioner commences a prosecution, the penalty shall be repaid to the person as a refund of tax under section 48, and the person shall not pay a penalty, in the case of a prosecution, unless the prosecution is withdrawn.
- In order to succeed in an application for judicial review, an applicant had to show that the decision or act complained of was tainted with illegality, irrationality and procedural impropriety. Illegality was when the decision making authority committed an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles were instances of illegality. Irrationality was when there was such gross unreasonableness in the decision taken or act done that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision was usually in defiance of logic and acceptable moral standards. Procedural impropriety was when there was failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness would be in non-observance of the rules of natural justice or to act with procedural fairness towards one to be affected by the decision. It would also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercised jurisdiction to make a decision.
- Judicial review was entrenched as a constitutional principle pursuant to the provisions of article 47 of the Constitution, which provided for the right to fair administrative action, and section 7 of the Fair Administrative Action Act, which granted any person aggrieved by an administrative action or decision an opportunity to apply for review of the administrative action or decision. Those provisions revealed an implicit shift of judicial review to include aspects of merit review of administrative action, even though the reviewing court had no mandate to substitute its own decision for that of the administrator. Article 165(6) of the Constitution also gave the court supervisory jurisdiction over any person, body or authority that exercised a quasi-judicial function or a function that was likely to affect a person’s rights.
- Regarding tax disputes, section 51(1) and (2) of the Tax Procedures Act (the Act) made provisions on the dispute resolution process. A taxpayer who wished to dispute a tax decision was required to first lodge a notice of objection against the tax decision with the Commissioner of Tax before proceeding under any other written law. If dissatisfied with an appealable decision, section 52 of the Act had another avenue for appealing to the Tax Appeal Tribunal (Tribunal). Section 3 of the Act defined what amounted to an appealable decision and a tax decision. Further, section 12 of the Act also provided that a person who disputed the decision of the Commissioner of Tax on any matter would also appeal to the Tribunal.
- Section 9(2) and (3) of the Fair Administrative Action Act required the exhaustion of statutory and other internal review or appeal mechanisms before a party could seek judicial review. Under section 9 (4) of the Fair Administrative Action Act, the court could, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.
- Where there was an alternative remedy and especially where Parliament had provided a statutory appeal process, it was only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception could be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the real issue, was to be determined and whether the statutory appeal procedure was suitable to determine it. In reaching a decision as to whether an exception applied, courts would undertake an analysis of the facts, regulatory scheme involved, the nature of the interests involved, including level of public interest involved and the polycentricity of the issues and the ability of a statutory forum to determine them.
- Even though a tax assessment and demand was made by the 1st respondent to the interested party, and they engaged in negotiations on the payment terms, the matter had since progressed from merely being a tax liability and payment dispute, to one of criminal prosecution of the ex parte applicants. The decision by the 1st respondent to prosecute the ex parte applicants was the primary decision that was being challenged. The tax refunds due to the interested party had been raised by the ex parte applicants to augment their arguments on the legality of their prosecution, and was therefore secondary and incidental to the decision under challenge.
- The statutory remedies provided by section 51 and 52 of the Act were not only inapplicable in the circumstances, but had also been overtaken by events. The ex parte applicants had demonstrated that judicial review was a more effective and convenient remedy than the statutory laid down dispute resolution mechanism, as they were not disputing the amount of tax due for the interested party but the processes involved and the law applied to charge and prosecute them. The court had inherent and wide jurisdiction under articles 47 and 165(6) of the Constitution to supervise the respondents in that respect. Thus, the matter was properly before the court.
- The interested party owed tax and various provisions of the Act were applicable as regards its payment of the tax liability. In addition, the Act provided for various methods of collection and enforcement of tax payment by the 1st respondent, including by civil suit, preservation of funds by issuing of third party agency notices, distress, search and seizure of goods and assets, production of documents and criminal prosecution.
- The ex parte applicants brought evidence of correspondence between the interested party and the 1st respondent regarding the payment of tax arrears due in instalments. Section 33 of the Act allowed for an arrangement to be made as regards extension of time to make such payment. Section 39 of the Act on the other hand provided for the recovery of unpaid tax by suit. It was evident from a reading of the provisions that the 1st respondent was not precluded from recovery of tax by other legal means once there was a default in the payment of tax due on instalment terms. In addition, it was evident from the sections that the recovery of tax by a civil suit was additional to, and irrespective of other collection methods provided for by the law. Thus, the section did not preclude criminal prosecution, where such criminal prosecution was permissible.
- Part XII of the Act provided for penalties and prosecution for criminal offences in relation to payment of tax, including the offence of failure to pay tax when due, subject to the principles set out in section 80 of the Act. Section 80 of the Act was an illustration of the constitutional principle in article 50(2)(o) of the Constitution that a person could not be convicted or punished for the same offence more than once. The penalty regime under the tax laws was premised predominantly on the culpability of a taxpayer for non-payment of tax and potential loss of revenue, which formed the basis for calculating the penalty due. It was thus a form of punishment meted out on a taxpayer for non-compliance with his or her tax obligations and responsibilities. The 1st respondent was specifically required by section 80 of the Act to elect whether to impose a penalty or undertake criminal prosecution with respect to a tax liability, and was expressly prohibited from undertaking both methods of enforcement as that would amount to double jeopardy.
- There was imposition of penalties on the interested party with respect to its tax liability. The ex parte applicants’ averments that the interested party had paid a total sum of Kshs 127,735,232/= pursuant to the negotiations on the payment of the said liability as at the date of commencing the instant judicial review proceedings was not disputed by the 1st respondent. The 1st respondent did not provide any evidence to show the defaults in the payment of the agreed instalments, or of the breakdown of the payments made by the interested party to support its averments on the nature of the said payment in terms of the principal sum and penalties of the sum of tax that was demanded, and that was the subject of the prosecution of the ex parte applicants.
- The tax liability for which the ex parte applicants were being prosecuted was that of the interested party, and it was the same tax liability that was the subject of the aforesaid negotiations and part payment. Therefore, the 1st respondent having elected to make a tax demand, to and entered into negotiations with the interested party for the payment of the tax liability, including of interest and penalties, which the interested party had partly paid, was prohibited by section 80 of the Act from undertaking criminal prosecution of the interested party’s directors for the same tax liability. Thus, the prosecution of the ex parte applicants was not only manifestly illegal for being contrary to section 80 of the Act, but also unconstitutional.
- Courts ought not to usurp the constitutional mandate of the Director of Public Prosecutions (DPP) to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The merits of the case, and particularly whether the criminal proceedings had a likelihood of success, or that the applicant had a good defence was not a ground for halting criminal proceedings by way of judicial review.
- However, if an applicant demonstrated that the criminal proceedings constituted an abuse of process, courts would not hesitate in putting a halt to such proceedings. The concurrent existence of the criminal proceedings and civil proceedings would not, ipso facto, constitute an abuse of the process of the court unless the commencement of the criminal proceedings was meant to force the applicant to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognized aim.
- The police had a duty to investigate on any complaint once a complaint was made. The police would be failing in their constitutional mandate to detect and prevent crime. The police only needed to establish reasonable suspicion before preferring charges. The rest was left to the trial court. The predominant reason for the institution of the criminal case could not be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge acted in a reasonable manner, courts would be reluctant to intervene.
- An order of prohibition was an order from the High Court directed to an inferior tribunal or body which forbade that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lay, not only in excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It did not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings. Equally so, the High Court had inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considered himself to be a victim of oppression. If the prosecution amounted to an abuse of the process of the court and was oppressive and vexatious, the court had the power to intervene and had the inherent power and the duty to secure fair treatment for all persons who were brought before the court or to a subordinate court and to prevent an abuse of the process of the court.
- The role of the court in a judicial review application was to ensure that an applicant was not dragged willy-nilly into court on criminal charges when there was no substantial evidence to sustain an indictment. The DPP had the authority and discretion to decide who, when and how to prosecute within the bounds of legal reasonableness. That role could not be usurped by the court. If the DPP acted outside the bounds of legal reasonableness, however, he acted ultra vires and the court could intervene.
- A criminal prosecution which was commenced in the absence of proper factual foundation or basis was always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there ought to be in existence material evidence on which the prosecution could say with certainty that they had a prosecutable case. A prudent and cautious prosecutor had to be able to demonstrate that he had a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution would be malicious and actionable.
- There were various scenarios that would require interrogation to warrant a review of the unfettered discretion of the DPP:-
- where there was an abuse of discretion;
- where the decision-maker exercised discretion for an improper purpose;
- whether decision-maker was in breach of the duty to act fairly;
whether decision-maker had failed to exercise statutory discretion reasonably;
- where the decision-maker acted in a manner to frustrate the purpose of the Act donating the power;
- where the decision-maker fettered the discretion given;
where the decision-maker failed to exercise discretion;
where the decision-maker was irrational and unreasonable.
- The prosecution of the ex parte applicants was unlawful and unconstitutional. In addition, sections 104 to 110 of the Act which provided for the procedure and manner of prosecution of offences, were found in Part XII of the Act, and could only be read and applied subject to the overriding principle applicable to that Part which was in section 80 of the Act. To that extent, the 1st respondent overstepped its legal boundaries, and acted unlawfully and in abuse of the legal process in prosecuting the ex parte applicants.
- Legitimate expectation was based not only on ensuring that legitimate expectations by the parties were not thwarted, but on a higher public interest beneficial to all, which was, the value or the need of holding authorities to promises and practices they had made and acted on and by so doing upholding responsible public administration. That in turn enabled people affected to plan their lives with a sense of certainty, trust, reasonableness and reasonable expectation. Public authorities had to be held to their practices and promises by the courts and the only exception was where a public authority had a sufficient overriding interest to justify a departure from what had been previously promised.
- A person would have a legitimate expectation of being treated in a certain way by an administrative authority even though he had no legal right in private law to receive such treatment. The expectation would arise either from a representation or promise made by authority, including an implied representation, or from consistent past practice.
- In proceedings for judicial review, legitimate expectation applied the principles of fairness and reasonableness, to the situation in which a person had an expectation, or interest in a public body retaining a long-standing practice, or keeping a promise. A party that sought to rely on the doctrine of legitimate expectation had to show that it had locus standi to make a claim on the basis of legitimate expectation.
- The emerging principles on legitimate expectation were:-
- there had to be an express, clear and unambiguous promise given by a public authority;
- the expectation itself had to be reasonable;
- the representation had to be one which it was competent and lawful for the decision-maker to make; and
- there could not be a legitimate expectation against clear provisions of the law or the Constitution.
- It was difficult to adopt the ex parte applicants’ argument that the conduct of the 1st respondent of entering into negotiations with the interested party to pay the tax due in instalments amounted to a promise not to prosecute the ex parte applicants. That was because, if there was any express statement or promise made by the 1st respondent whether to the ex parte applicants or interested party, it was to accept payment of the due tax in instalments. No express representation was made that it would not commence criminal proceedings against the ex parte applicants.
- Further, as to whether such a promise could be implied by the provisions of section 80 of the Act and conduct of the 1st respondent in relation thereto, the statutory framework of the tax compliance laws prevented such an implication, as criminal prosecution for tax evasion was expressly provided for by the said laws. In addition, even if such an implication could arise as a result of the conduct of the 1st respondent in entering negotiations with the interested party on the payment of the due tax and penalties, the contested issue of whether the ex parte applicants were directors of the interested party at the material time would had to be resolved first, for them to rely on such an implied representation.
- To resolve the dispute on the status of the ex parte applicants at the time of the alleged non-payment of tax by the interested party, the dispute would require the court to handle conflicting evidential matters and to establish the existence of certain facts at the material time, which entailed delving into the merits of the case. That would be overstepping the judicial review mandate vested upon the court, and was a matter that needed to be decided by a trial court, whether criminal or civil.
- Prohibition looked to the future. However, where a decision had been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice, an order of prohibition would not be efficacious against the decision so made. Prohibition could not quash a decision which had already been made. It could only prevent the making of a contemplated decision. Only an order of certiorari could quash a decision already made and an order of certiorari would issue if the decision was without jurisdiction or in excess of jurisdiction, or where the rules of natural justice were not complied with or for such like reasons.
- The prosecution of the ex parte applicants was found to be unlawful and unconstitutional, and the order sought of certiorari to quash the said prosecution was thus merited. Consequently, an order of prohibition stopping any further prosecution of the ex parte applicants was also merited to ensure that the court did not act in vain.
- The outstanding orders of prohibition and mandamus sought by the ex parte applicants could not, however, be granted for two reasons. Firstly, the court could not prohibit the 1st respondent from undertaking its statutory duties without any justifiable basis. Secondly, given the limits of the court’s judicial review jurisdiction, the orders sought that touched on the merits of the dispute could not be granted.
Application partly allowed.
- An order of certiorari issued to bring into the High Court for purposes of being quashed the charge sheet and proceedings in Nairobi MCCR/1338/2018- Republic vs Kung’u Gatabaki & Others instituted by the 1st and 2nd Respondents against the ex parte applicants.
- An order of prohibition issued directed at the 3rd respondent prohibiting him/her and any other Magistrate’s court of similar jurisdiction from trying, hearing or further hearing and determining MCCR/1338/2018 - Republic vs Kung’u Gatabaki & Others.
- The 1st and 2nd respondents order to meet the ex parte applicants’ costs of the application.
|| Factors to consider in determining whether a judgment can be appealed against to the Supreme Court involving constitutional interpretation and application
Hassan Zubeidi v Active Partners Group Limited & 4 others  eKLR
Petition No. 44 of 2019
Supreme Court of Kenya
DK Maraga, CJ&P; PM Mwilu DCJ &V-P; MK Ibrahim, SC Wanjala & NS Ndungu, SCJJ
August 4, 2020
Reported by Kakai Toili
Jurisdiction – jurisdiction of the Supreme Court – appellate jurisdiction – matters of constitutional interpretation and application - what were the factors to consider in determining whether a judgment could be appealed against to the Supreme Court as involving the interpretation or application of the Constitution – Constitution of Kenya, 2010, article 163(4)(a).
The 1st, 2nd and 4th respondents filed the instant preliminary objection challenging the court’s jurisdiction on grounds that the appeal before the court did not raise any issues concerning the interpretation or application of the Constitution as envisaged under article 163(4)(a) of the Constitution of Kenya, 2010, (Constitution). The respondents claimed that there were two issues for determination before the two superior courts namely, whether, under the terms of the contract between the 1st and 2nd respondents and the petitioner, Kenyan courts had jurisdiction to determine a dispute arising therefrom; and whether, a default judgment entered against the 1st and 2nd respondents could be set aside.
It was further claimed that in answering to the first issue, the High Court held that it had jurisdiction to determine the dispute. While in overturning the decision, the Court of Appeal held that the jurisdiction of Kenyan courts had been unequivocally excluded by the contract in question. Concerning the second question, it was alleged that both superior courts were in agreement that the default judgment should be set aside. The respondents’ therefore argued that the resolution of the two issues did not involve the interpretation or application of the Constitution, nor could it be said that in disposing of them, the superior courts took a trajectory of constitutional interpretation or application.
What were the factors to consider in determining whether a judgment could be appealed against to the Supreme Court as involving the interpretation or application of the Constitution? Read More..
- The court had to consider whether the appeal raised a question of constitutional interpretation or application, and whether it had been canvassed in the superior courts, progressing through the normal appellate mechanism so as to reach the Supreme Court by way of an appeal. The court also had to determine, in the alternative, whether a trajectory of constitutional interpretation or application was evident in the superior courts’ reasoning leading to the determination of the question.
- The petitioner’s appeal emanated from two rulings of the trial court, the ruling setting aside a default judgment and the ruling on the effect of contractual clauses, ousting the jurisdiction of courts in Kenya. A perusal of the pleadings before the courts and the decisions of both the High Court and the Court of Appeal left no doubt that in arriving at the decisions they did, the two superior courts did not advert to the Constitution by way of interpretation or application. On the contrary, all that the courts did was to determine whether the default judgment ought to be set aside and to interpret the effect of a contractual clause.
- The petitioner had raised the issues of breach of articles 27, 48 and 50 of the Constitution for the first time before the court. The interpretation and application of those articles was not in issue before either the High Court or the Court of Appeal. The petitioner had not properly invoked the jurisdiction of the court under article 163(4)(a) of the Constitution.
Preliminary objection allowed; petition of appeal dated November 15, 2019, struck out; costs of the proceedings in the court to be borne by the petitioner.
|| A man cannot commit the offence of incest with a male relative under the Sexual Offences Act
JKM v Republic
Criminal Appeal No 54 of 2018
High Court at Nyahururu
RPV Wendo, J
July 30, 2020
Reported by Sharon Sang & Kakai Toili
Criminal Law – sexual offences – incest - incest by a male person –elements constituting the offence of incest by a male person – whether a man could commit the offence of incest on a male relative - Sexual Offences Act,(No. 3 of 2006), section 20 and 22.
Criminal Law – sexual offences – defilement and incest – where the charge of incest by a male person was substituted with that of defilement – where the accused had defiled a 9 year old child – where both offences bore a similar sentence which was life imprisonment – whether it would be prejudicial to substitute the offence of incest by a male person to the offence of defilement under the Sexual Offences Act – Sexual Offences Act, (No. 3 of 2006), section 8 and 20.
Jurisdiction – jurisdiction of the High Court – appellate jurisdiction - role of the High Court as an appellate court.
The appellant had been convicted for the offence of incest contrary to section 20(1) of the Sexual Offences Act (the Act) by the trial court. The particulars of the charge were that the appellant intentionally caused his genital organs to penetrate the genital organs of his son (the complainant) a child aged 9 years. In the alternative, the appellant was charged with the offence of indecent act with a child, contrary to section 11(A) of the Act in that he intentionally caused his genital organs to come into contact with the genital organs of the complainant. Upon conviction, the appellant was sentenced to serve 20 years imprisonment. The appellant was aggrieved by the judgment of the trial court and thus filed the instant appeal. The appellant prayed that the conviction be quashed and the sentence set aside.
- What were the elements that constituted the offence of incest by a male person?
- Whether the offence of incest by a male person could be established if committed on a male relative under the Sexual Offences Act.
- Whether it would be prejudicial to substitute the offence of incest by a male person to the offence of defilement under the Sexual Offences Act which bore similar sentence if convicted. Read More..
Relevant provisions of law
Sexual Offences Act, No 2 of 2006
“indecent act” means an unlawful intentional act which causes—
(a)any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration;
(b)exposure or display of any pornographic material to any person against his or her will;
“penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
Section 20 – Incest by male persons
(1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.
Section 22 – Test of relationship
(1) In cases of the offence of incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not.
(3) An accused person shall be presumed, unless the contrary is proved, to have had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the incest.
(4) In cases where the accused person is a person living with the complainant in the same house or is a parent or guardian of the complainant, the court may give an order removing the accused person from the house until the matter is determined and the court may also give an order classifying such a child as a child in need of care and protection and may give further orders under the Children Act (No 8 of 2001)
- The court had a duty to exhaustively examine all the evidence tendered in the trial court, evaluate and analyze it and arrive at its own findings and conclusions. However, the court had to make allowance for the fact that it neither saw nor heard the witnesses testify whereas the trial court had the opportunity to, and to assess the witnesses’ demeanor.
- The offence of incest by a male person was created by section 20(1) of the Sexual Offences Act. To establish a case under section 20, the prosecution had to prove the elements of the offence which were that there had to be;
- an indecent act or an act that caused penetration; and
- the victim had to be a female person who was related to the perpetrator in the degrees set out in section 22 of the Act.
- There was overwhelming evidence on record that the complainant was aged about 8 years old. The complainant was a child of tender age and had undergone a voire dire examination. PW6 who examined the complainant, assessed his age at 8 years, at the time he was in nursery school.
- There was no evidence on record as to suggest why the complainant, a child of tender age, could have framed the appellant with such a serious offence and given such candid details of the incident. The complainant was a truthful witness, he gave his evidence on oath and was subjected to cross-examination and his testimony was not shaken. The appellant was therefore the perpetrator of the offence that caused anal penetration of the complainant.
- The complainant was a male person and did not fall within the category listed in section 20(1) of the Act. Under section 20(1), a male person committed the incest with a female relative. There was no provision in the Act where a male person was deemed to commit incest with male relative. An offence of incest had therefore not been disclosed as no such offence existed under section 20(1).
- The evidence on record disclosed an offence of defilement under section 8(1) as read with section 8(2) of the Act. The trial court erred in convicting and sentencing the appellant under section 20(1) of the Act. The appellant was thus guilty of the offence of defilement contrary to section 8(1) as read with section (2) of the Act.
- The appellant would not suffer any prejudice for being found guilty for the offence of defilement because the sentence under section 20 of the Sexual Offences Act was similar to the sentence under section 8(1) and (2) which was, life imprisonment.
- The appellant behaved like a beast. The complainant was a young boy of tender age, his own son upon whom he inflicted serious injuries by his bestial acts. Instead of being his protector, he was the molester until the young boy had to run for his life and find refuge in the bathroom. The appellant did not deserve mercy.
- The Rules Committee needed to reconsider section 20(1) of the Sexual Offences Act, whether a man could commit incest on a male relative.
Appeal partly allowed; appellant sentenced to serve 30 years imprisonment under section 8(2) of the Sexual Offences Act which sentence would run from the date the appellant was sentenced.
|CIVIL PRACTICE AND PROCEDURE
Power of the Supreme Court to correct any apparent errors in its judgments, rulings and orders
Charles Karathe Kiarie & 2 others v Administrator of the Estate of John Wallace Mathare (Deceased) & 2 others
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 11, 2020
Reported by Sharon Sang and Kakai Toili
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.
On August 4, 2020, the court delivered a ruling dismissing the application, allowing a preliminary objection by the 1st and 2nd respondents. In the ruling at paragraph , it was erroneously indicated that the supporting affidavit was sworn on May 30, 2017. Further, at paragraph , the court indicated that the preliminary objection had been filed on June 20, 2020 which was an error as it was filed on June 11, 2020. In the final orders at paragraph , order (a) was to the effect that the application dated May 30, 2017 was dismissed. That was an inadvertent error as the application subject of the court’s ruling was dated February 27, 2020.
Whether the Supreme Court had the general powers to correct any apparent errors in its judgments, rulings and/or orders.Read More...
Relevant provisions of law
Supreme Court Act, No 7 of 2011
Section 21 – General powers
(4) Within fourteen days of delivery of its judgment, ruling or order, the Court may, on its own motion or on application by any party with notice to the other or others, correct any oversight or clerical error of computation or other error apparent on such judgment, ruling or order and such correction shall constitute part of the judgment, ruling or order of the Court.
Section 21(4) of the Supreme Court Act clothed the court with general powers to correct any apparent errors in its judgments, rulings and/or orders.
- Paragraph  of the ruling dated August 4, 2020 was corrected by deleting the date “May 30, 2017” and inserting therein the date “February 27, 2020.”
- Paragraph  of the ruling dated August 4, 2020was corrected by deleting the date “June 20, 2020” and inserting therein the date “June 11, 2020”,
- Paragraph  of the ruling dated August 4, 2020 was corrected by deleting order (a) that read “The Application dated May 30, 2017 is hereby dismissed” and inserting a new order (a) thus: The Application dated 27th February 2020 is hereby dismissed”.
- The Ruling dated August 4, 2020 was accordingly amended, and the order would constitute part of the ruling of the court.
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