Weekly Newsletter 045/2018

Weekly Newsletter 045/2018



Kenya Law

Weekly Newsletter


The proper way of sentencing an offender, who at the time of commission of a serious offence was a minor above the age of sixteen years, but at the time of sentencing was an adult
S C N v Republic [2018] eKLR
Criminal Appeal No. 55 of 2015
High Court at Naivasha
R Mwongo, J
October 18, 2018
Reported by Kakai Toili
Download the Decision

Criminal Law-charges-defective charges-circumstances in which a charge could be defective-variation with evidence adduced in support of the charge-effect of-rejection of evidence-whether a charge could be defective if it was in variance with the evidence adduced in its support-what were the circumstances in which contradiction would lead to rejection of evidence due to contradiction with charges preferred against an accused; Criminal Procedure Code, section 382
Criminal Procedure-sentencing-sentencing for defilement-where the offender was a child above the age of sixteen years at the time of committing the offence but an adult at the time of sentencing-where the Children Act provided for ways of dealing with child offenders-what was the proper way to sentence an offender who at the time of commission of a serious offence was a minor above the age of sixteen years but at the time of sentencing was an adult -what was the purpose of the sentences provided for under the Children Act-Children Act, section 191; Sexual Offences Act, section 8

Brief Facts:
The appellant was convicted for the offence of defilement and sentenced to life imprisonment. At the time of commission of the offence the appellant was a child above sixteen years. In the Trial Court while giving his evidence, the complainant, a nine year old pupil, said that the accused removed his trouser then removed his own trouser and then did bad manners to him. When asked what bad manners was, the complainant insisted that what was done to him was bad manners. The Trial Court recorded that the appellant inserted a pen in the complainant’s buttocks and that the complainant did not see the pen. The evidence before the Trial Court showed that the appellant pressed the complainant’s head onto the ground so he could not scream. Aggrieved by his conviction and sentencing, the Appellant filed the instant appeal.

Issues:

  1. Whether a charge could be defective if it was in variance with the evidence adduced in its support.
  2. What were the circumstances in which contradiction would lead to rejection of evidence due to contradiction with charges preferred against an accused?
  3. What was the proper way of sentencing an offender who at the time of commission of a serious offence was a minor above the age of sixteen but at the time of sentencing was an adult.
  4. What was the purpose of the sentences provided for under the Children Act?

     

Relevant Provisions of the Law
Criminal Procedure Code
Section 382

Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.

Sexual Offences Act
Section 8

(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life

Children Act
Section 191

(1) In spite of the provisions of any other law and subject to this Act, where a child is tried for an offence, and the court is satisfied as to his guilt, the court may deal with the case in one or more of the following ways—

(a) By discharging the offender under section 35(1) of the Penal Code (Cap. 63);
(b) by discharging the offender on his entering into a recognisance, with or without sureties;
(c) by making a probation order against the offender under the provisions of the Probation of Offenders Act (Cap.64);
(d) by committing the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake his care;
(e) if the offender is above ten years and under fifteen years of age, by ordering him to be sent to a rehabilitation school suitable to his needs and attainments;
(f) by ordering the offender to pay a fine, compensation or costs, or any or all of them;
(g) in the case of a child who has attained the age of sixteen years dealing with him, in accordance with any Act which provides for the establishment and regulation of borstal institutions;
(h) by placing the offender under the care of a qualified counsellor;
(i) by ordering him to be placed in an educational institution or a vocational training programme;
(j) by ordering him to be placed in a probation hostel under provisions of the Probation of Offenders Act (Cap. 64);
(k) by making a community service order; or
(l) in any other lawful manner.


Held:

  1. A charge could be defective if it was in variance with the evidence adduced in its support. The Trial Court heard and saw the witness and his demeanour; his outward behavior and bearing including movement, shame, eyes and posture. The Trial Court appreciated that the complainant had been penetrated in the buttocks in terms of section 8(1) of the Sexual Offences Act. The idea that a writing instrument, a pen, was used to penetrate the complainant was not consistent with the overall evidence and comprehension of the child. It was a mere afterthought on the part of the appellant.
  2. It was not every contradiction that warranted rejection of evidence. The law was that grave contradictions unless satisfactorily explained would usually but not necessarily lead to the evidence of a witness being rejected. Courts would ignore minor contradictions unless they thought that they pointed to deliberate untruthfulness or if they did not affect the main substance of the prosecution’s case. The instant Court did not have an opportunity to observe the witness’ demeanour and was therefore unable to find that there was no evidence connecting the appellant to the offence.
  3. Oral evidence of a single witness was sufficient to warrant a conviction. In the instant case, medical evidence was availed by PW 3 who produced a P3 medical report and post rape care report as exhibits. The reports showed that the complainant was sexually abused and described in detail injuries to anus. There was therefore proof of penetration beyond reasonable doubt.
  4. With regard to what courts were to do in respect of minors who commit offences but attain the age of majority before sentencing, the statutory scheme stipulated that a child above sixteen years could only be held in a borstal institution for a maximum period not exceeding three years. However, section 191(1)(l) Children Act provided for an offender to be dealt with in any other lawful manner. The dilemma created by the instant case in which the Sexual Offences Act provided for a specific sentence, but was silent about the age of the offender, could be dealt with by reference to section 191 of the Children Act.
  5. The purposes of the sentences provided for under the Children Act were meant to correct and rehabilitate a young offender, any person below the age of eighteen years while taking into account the overarching objective was the preservation of the life of the child and his best interest. A death sentence or a life imprisonment were not provided for but when dealing with an offender who had attained the age of sixteen years, courts could sentence him in any other lawful manner.

Appeal partly allowed

  1. i. Appellant’s sentence reduced to a custodial sentence of ten (10) years.
Kenya Law
Case Updates Issue 045/2018
Case Summaries

CRIMINAL PROCEDURE Both section 39 (3) (b) of Anti - Corruption and Economic Crimes Act (ACECA) and section 6 of the Bribery Act did not have to appear at the same time in the charge sheet as that amounted to duplicity of charges

Republic V Juma Kalume Kalama [2018] eKLR
Anti-Corruption and Economic Crime Division Milimani
HC ACEC Rev. No. 5 of 2017
High Court of Kenya at Nairobi
J.N. Onyiego, J
July 31, 2018.
Reported By Felix Okiri

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Criminal Procedure – review - jurisdiction of the High Court to entertain proceedings by way of review - what was the limit of the exercise of supervisory power of the High Court, particularly under article 165 (6) and (7) of the Constitution and sections 362, 364 of the Criminal Procedure Code (CPC) – Constitution of Kenya, 2010, article 165 (6) and (7); Criminal Procedure Code, section 362, 364
Criminal Procedure – charges – framing of charges – where Court declined to take plea and dismissed the charges under section 89(5) of the Criminal Procedure Code Cap 75 on the ground that the charges should have been preferred and filed under the Bribery Act and not under section 39 (3) (b) of the ACECA which had been repealed by section 23 of the Bribery Act - what was the proper mode of framing the statement of the offence and particulars so as to reflect the operative section of an offence of bribery- Anti-corruption and Economic Crimes Act No. 3 of 2003, section 39 (3) (b) and  48(1); the Criminal Procedure Code section 89(5); Bribery Act, section 27 (2)

Brief facts:
The Respondent was charged with two counts of criminal charges relating to corruption including- corruptly offering a benefit to a public officer contrary to section 39 (3) (b) as read with section 48(1) of the ACECA; and corruptly giving a benefit contrary to section 39 (3) (b) as read with section 48 (1) of the ACECA.  According to the charge sheet, both offences were committed on December 23, 2016.
Upon presentation of the charge sheet before the subordinate court for plea taking, that Court declined to take plea and dismissed the charges under section 89(5) of the CPC on the ground that the charges should have been preferred and filed under the Bribery Act and not under section 39 (3) (b) of the ACECA which had been repealed by section 23 of the Bribery Act which commenced operation on the January 13, 2017. 
The Applicant sought revisionary orders in relation to that ruling contending that the rejection and subsequent dismissal of the charges by the subordinate court on ground that the proper charge should have been under the Bribery Act was erroneous in view of the provision under section 27 (2) of the Bribery Act.

Issues:

  1.  Whether an accused person would be section 39 (3) (b) of ACECA or section 5 of the Bribery Act? 
  2. What was the proper mode of framing the statement of the offence and particulars so as to reflect the operative section of an offence of bribery?
  3. What was the import of section 27 of the Bribery Act which was the saving/ transitional clause?
  4. What was the relevance of the revisionary jurisdiction of the High Court on subordinate courts?
  5. What was the limit of the revisionary jurisdiction of the High Court on subordinate courts? Read More..

Relevant provisions of the law
Constitution of Kenya, 2010 (the Constitution)
Article 165(6)
 “the high court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court”.

Article 165(7)
 “For purposes of Clause 6, the high court may call for the record of any proceedings before subordinate court or person, body or authority referred to in Clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice”. 

Criminal Procedure Code (CPC)
Section 362
 “The high court may call for and require the record of any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order  recorded or passed, and as to the regularity of any proceedings of any subordinate court”.

 Section 364 (1)
 “In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the high court may-
 (a).................
 (b) In the case of any other order other than an order of acquittal, alter or reverse the sentence.

Held :

  1. Authority to exercise revisionary powers by the High Court over subordinate courts was a creature of article 165 (6) and (7) of the Constitution which was the supreme law of the land and sections 362 and 364 of the CPC.
  2. The mandate donated by the above provisions to oversee subordinate courts’ operations in the course of discharging their judicial function was intended to restore consistence, predictability and alignment in the administration of justice in case of  any illegality, irregularity or impropriety committed by a subordinate court. The exercise of supervisory power of the High Court, particularly under article 165 (6) and (7) of the Constitution and sections 362, 364 of the CPC was so wide, and was not limited to situations where there was an error on the face of the record, or new issues having emerged. It covered incorrect, illegal, improper or irregular proceedings, order or finding of the Trial Court. The High Court was entitled to review the decision of subordinate courts to determine whether they complied with legal standards.
  3. Section 39 (3) (b) of ACECA was repealed by the Bribery Act No. 27 of 2016 which was assented to on December 23, 2016 and commenced on January 2017.  The offence was thus committed and investigations instituted when section 39 of the ACECA was operational but prosecution instituted and commenced after its repeal and after the commencement of the Bribery Act.
  4. Alive of the possible confusion or consequences occasioned by repealed laws, the legislature in its wisdom provided a transitional clause under the Bribery Act courtesy of section 27 (2) which provided that any investigation or prosecution or court proceedings instituted before the commencement of Bribery Act were to be treated or continued as if they were instituted under the Bribery Act with the necessary modifications.
  5. That transitional provision was meant to breathe life into the previously commenced investigation or prosecution or court proceedings instituted under the repealed law and to midwife or ensure smooth delivery or transition of such investigation or prosecution or proceedings commenced or instituted during the lifetime of ACECA to the repealing Act.
  6. No one was to be charged of an offence that did not exist at the time it was alleged to have been committed.  However, in the instant case, the offence of bribery was inexistence both under the repealed law and current Act save for the penalty which was stiffer under the Bribery Act than the one provided under the ACECA.
  7. Both section 39 (3) (b) and section 6 of the Bribery Act did not have to appear at the same time in the charge sheet as that amounted to duplicity of charges.  Instead the charge was to reflect a statement of the offence referring to section 39 (3) (b) as read with section 48(1) (now repealed) as read together with section 27(2) of the Bribery Act no 47 of 2016.  By indicating both section 39 (3) (b) of ACECA and 27 (2) of Bribery Act, the charges would have been modified to suit the requirement of section 27 (2) of the Bribery Act.  The statement of the offence and particulars had to reflect the operative section of the offence and the time when the offence was committed hence the particulars of the offence and the penalty then applicable.
  8. Section 27 (2) of the Bribery Act  had provided safety measures to the effect that any investigation commenced or prosecution or court proceedings instituted prior to the repeal of ACECA, were be treated or continued as though they were instituted under the Bribery Act.
  9. The operative word was, ‘they were to be treated or continued as if they were’ instituted under the Bribery Act meaning that they were to be preferred under the repealed Act but with necessary modification.
  10. In the circumstances, the necessary modification would be, the inclusion of the word “repealed” as read with section 27(2) of the Bribery Act after the statement of the offence under ACECA. If parliament had intended offences previously investigated or prosecution or court proceedings instituted under the repealed Act to continue under the new Act, they should have stated so without using the word as if.  The enactment of the Bribery Act and consequent repeal of section 39 of ACECA was in no way intended to set free those offenders caught in the transitional period. Equally it was not intended to subject offenders of offences committed under the old regime (ACECA) to suffer a more punitive sentence under the Bribery Act than it was under ACECA being the relevant section for the offence in question.
  11. The offences in question were those of corruptly offering and giving a bribe which was recognized both under the repealed law section 39 and the Bribery Act section 5. The choice of words in either Act was merely semantic and that did not change the status of the offence.
  12.  The intention of parliament was clear and discernible under section 27 (2) of the Bribery Act hence section 23(3) (e) of the Interpretation and General Provisions Act Cap 2(3) invoked was not applicable. That provision was relevant in a situation where there was no specific provision governing the issue in question or in situations of an ambiguity.
  13. The Trial Court misapprehended the law to some extent by holding strictly that section 39(3) of ACECA was completely not applicable. However, to the extent that the charge was not properly drafted to take into account both the ACECA and the Bribery Act, the Trial Court would still have rejected the charge sheet and discharged the Respondent under section 89 (5) of CPC. Fortunately, the said provision was not a bar to re-arresting the Respondent and same charges preferred afresh with the necessary modifications as stated herein above.

Application allowed
Orders

  1. The application for revision of the orders of Hon. E.G Nderitu in EACC No. 2/2017 made on June 6, 2017 was allowed.
  2. The Applicant was to be at liberty to prefer proper charges under the Anti-Corruption and Economic Crimes Act No. 3 of 2003 with necessary modifications and arraign the Respondent before the Senior Principal Magistrate Court at Voi to answer to the fresh charges.
BANKRUPTCY LAW Conditions governing the grant of an interim order an as alternative to bankruptcy under the Insolvency Act

Rajenda Ratilal Sanghani v Schoon Noorani
Insolvency Cause Misc No 33 of 2018
High Court at Nairobi
F Tuiyott, J
October 26, 2018
Reported by Beryl A Ikamari

Download the Decision

Bankruptcy Law-alternative remedies to bankruptcy for natural persons-interim order-effect of an application for an interim order-conditions governing the grant of an application for an interim order-effect of failure by the applicant to satisfactorily demonstrate that he was unable to pay his debts-Insolvency Act, No 18 of 2015, sections 305, 306 & 307.
Bankruptcy Law-alternative remedies to bankruptcy for natural persons-interim order-right of audience in proceedings relating to an application for an interim order-effect of failure by the rules committee to make the Insolvency Procedure Rules contemplated under section 697 of the Insolvency Act-whether proceedings relating to applications for interim orders should be ex-parte and whether a creditor should have a right to be heard in those proceedings-Insolvency Act, No 18 of 2015, section 697.

Brief Facts:
The applicant/debtor sought to use the remedy of an interim order as an alternative to bankruptcy under section 305 of the Insolvency Act. The interim order would enable him to make a proposal to his creditors for composition in satisfaction of the debts or a scheme of arrangement of his financial affairs. The respondent, one of the creditors, raised a preliminary objection against the use of the interim order. The grounds of the preliminary objection included the assertion that the application targeted only one creditor and failed to include all other creditors, it had material non-disclosures, it was made in bad faith and was an abuse of court process, it was premature and speculative as the creditor had not demanded payment for the full debt and it did not comply with legal requirements relating to an interim order under the Insolvency Act. 

Issues:

  1. Whether a creditor had a right of audience in proceedings related to an application for an interim order, as an alternative remedy to bankruptcy, under the Insolvency Act.
  2. What were the conditions governing the grant of an interim order, as an alternative remedy to bankruptcy, under the Insolvency Act? Read More...

Relevant provisions of the law.
Insolvency Act, No 18 of 2015, section 306(1);
306. Power of the Court to make interim order
(1) On the hearing of an application made under section 304, the Court may make an interim order if satisfied—

(a) that the debtor intends to make a proposal under this Division;
(b) that on the day of the making of the application the debtor was an undischarged bankrupt or was able to make an application for the debtor's own bankruptcy;
(c) that no previous application has been made by the debtor for an interim order during the twelve months immediately preceding that day; and
(d) that the supervisor designated under the debtor's proposal is willing to act in relation to the proposal.

Held:

  1. Section 304 of the Insolvency Act provided for circumstances when an application for an interim order could be made.  The provision did not set out the procedure for making an application for an interim order. The Insolvency Procedure Rules contemplated under section 697 of the Insolvency Act were yet to be made by the Rules Committee.
  2. Whether or not a creditor had a right of audience in an application for an interim order was a question for which legal provision was required. An interim order ought to last for a very short period. Under section 306(5) of the Insolvency Act, an interim order would cease to have effect 14 days from the date on which the order was made. The objective of the relief was to grant the debtor breathing space in which to present a viable proposal to his creditors. There was no reason for creditors to be involved in proceedings relating to an interim order and they should be ex-parte proceedings.
  3. The mere presentation of an interim order had ramifications on the rights of creditors and landlords to commence or continue with certain proceedings. Under section 305 of the Insolvency Act, the effect of the interim order was that a landlord seeking rent payments would have to get court approval and any proceedings against the debtor could be stayed or allowed to continue on certain terms. Under section 306(7) of the Insolvency Act, after an interim order was made, a bankruptcy application could not proceed, a landlord who was demanding rent payments could only exercise his rights over the leased property with the Court's approval and any other proceedings against the debtor or his property could only be commenced or continued with the approval of the Court.
  4. Due to the possibility of long delays in prosecuting an application for an interim order and the extension of the order for long periods, it was possible for the landlord or creditor to suffer considerable prejudice and hardship. Additionally, the immunity that the debtor enjoyed upon the presentation of the application for interim order and the grant of the interim order meant that there was real temptation for a debtor, acting in bad faith, to abuse the process. Therefore, while the application for interim orders should be ex-parte, there were occasions when the participation of a creditor was justified. Each matter would depend on its own circumstances. Considering the creditor's objection and replying affidavit, the circumstances were such that the creditor deserved a hearing.
  5. An application for an interim order would be struck out where it was demonstrated that it was an abuse of court process or that it was so hopeless that it could not possibly succeed. However, the Court would have to be slow in granting orders of striking out and do so only in the clearest of cases.
  6. The conditions to be met for the grant an interim order were expressly provided in section 306(1) of the Insolvency Act. With regard to the making of the application for an interim order, where the debtor was not an undischarged bankrupt the Court would have to be satisfied that the debtor was unable to pay his debts. Additionally, before granting the interim order, the Court would have regard to the overarching objective and satisfy itself that the order would facilitate the consideration and implementation of the debtor's proposal.
  7. The debtor was not an adjudged bankrupt and therefore he had to demonstrate that he was capable of making an application for his own bankruptcy. Under section 32 of the Insolvency Act, that application could be made by a debtor who demonstrated that he was unable to pay his debts. Therefore, on a prima facie basis, the evidence would have to show that the debtor was unable to pay his debts.
  8. An assessment of a debtor's ability to pay his debts could only be done where the debtor provided a true and full inventory of his creditors and debtors and other liabilities and assets. The applicant failed to provide such an inventory. He did not give particulars relating to creditors, other than the respondent, and debtors and other liabilities and assets that he had.
  9. The allegations of the respondent, which were not disputed by the applicant, were to the effect that the applicant had valuable property which could be used in satisfaction of the debt. The challenge presented by the allegations meant that the application failed a crucial test relating to whether the applicant was able to pay his debts, given that he was not an undischarged bankrupt.
  10. Upon the grant of an interim order, the appointed provisional supervisor would make a report to court on the debtor's proposal. The report would state whether in the provisional supervisor's opinion, the proposal had a reasonable prospect of being approved and implemented, whether a meeting of the debtor's creditors should be convened to consider the proposal and whether that meeting should be convened as stated in the proposal. Where the report considered a meeting favourable and the Court directed that such a meeting should be held, the creditors would meet to consider the report for approval. Where the report was rejected the Court would discharge any subsisting interim order. The circumstances were that the only named creditor was likely to reject the proposal. If the debtor's proposal was credible and viable, the process would be allowed to run its course.

Preliminary objection upheld and application dismissed. 

CIVIL PRACTICE AND PROCEDURE Supreme Court allows an application for extension of time to file an appeal that was filed a few hours outside the official gazetted time

Bernard Kibor Kitur v Alfred Kiptoo Keter and another
Supreme Court of Kenya
Petition (Application) No 27 of 2018
D K Maraga, CJ & P, J B Ojwang, S C Wanjala, S N Njoki & I Lenaola, SCJJ
October 31, 2018
Reported by Ian Kiptoo

Download the Decision

Civil Practice and Procedure-appeal-filing of appeals-extension of time to file an appeal-where an appeal was filed a few hours outside the official gazetted time-where the application was filed during prevailing August Recess of the Supreme Court-whether the Supreme Court could extend the time to file an appeal that was filed during the prevailing August Recess of the Supreme Court, a few hours outside the official gazetted time-Supreme Court Rules, 2012, rules 5 (2) (b),7A (2), 33 (1), and 53

Brief facts:
The matter before the Court was an application for extension of time to file an appeal against the judgment and orders of the Court of Appeal. The applicant stated that the delay in filing the appeal was occasioned by the uncertainty about the computation of time for lodging an appeal to the Supreme Court; furthermore, whether the same was calculated from the time the notice of appeal was lodged at the Court of Appeal on July 24, 2018 or July 25, 2018 when the same was presented to the Supreme Court Registry and whether the computation of time included public holidays and weekends.
On the other hand, the 1st respondent contended that the application was brought inordinately and with undue and unexplained delay, and, that the petition of appeal and record of appeal were lodged out of time contrary to rule 33(1) of the Supreme Court Rules, 2012

Issue:

  1. Whether the Supreme Court could extend the time to file an appeal that was filed during the prevailing August Recess of the Supreme Court, a few hours outside the official gazetted time.Read More..

Held:

  1. As provided under rule 7A (2) as read with rule 53 of the Supreme Court Rules, 2012, the Chief Justice, and by extension the Court, could give further directions and extend the time limited under the rules upon consideration of prevailing circumstances. Pursuant to rule 33 (1) of the Supreme Court Rules, 2012, August 24, 2018 was the last day by which the Applicant should have lodged his appeal to the Court, which day fell on the Court’s August Recess period as published in Gazette Notice No. 7465 of July 6, 2018. During that period, the registry was open between the hours of 9.00 am – 12.00 noon as provided under rule 5 (2)(b) of the Supreme Court Rules, 2012, but the applicant sought to lodge his documents at around 4.00 pm on the said day.
  2. In the emerging jurisprudence, the concept of timelines and timeliness was generally upheld, as a vital ingredient in the quest for efficient and effective governance under the Constitution of Kenya, 2010. However, even as the Court took account of that context, it remained cognizant of its eternal mandate of responding appropriately to individual claims, as dictated by compelling considerations of justice.
  3. The Supreme Court Act, 2011, the Supreme Court Rules, 2012 and the Elections Act provided for strict timelines for the hearing and determination of matters before the Court. It would therefore be incumbent upon the respective parties to adhere to those strict timelines. However, the Court might consider whether there were any extenuating circumstances that would allow it to exercise its unfettered jurisdiction to extend time, more so on the grounds of public interest.
  4. The filing of the appeal on August 24, 2018 during the prevailing August Recess of the Supreme Court, a few hours outside the officially gazetted time could not be regarded as inordinately late. The applicant had explained his predicament to the satisfaction of the Court and grounded within the established principles. In any event, the respondent had not established any prejudice he would suffer should the application be allowed.

Application allowed
Orders

  1. The Appeal filed on  August 27, 2018 was deemed to have been filed on time;
  2. Costs shall abide in the cause
JURISDICTION The High Court has no jurisdiction to annul a Court of Appeal judgment.

Kenya Hotel Properties Ltd v Attorney General & 5 others
Constitutional Petition No 438 of 2015
High Court at Nairobi
E C Mwita, J
September 28, 2018
Reported by Beryl A Ikamari

Download the Decision

Jurisdiction-jurisdiction of the High Court-supervisory jurisdiction of the High Court-claim for, inter alia, the grant of orders of certiorari, for the High Court to quash a Court of Appeal judgment, on grounds that one of the judges in the three judge bench that issued the judgment was biased-whether the High Court could exercise supervisory jurisdiction over the Court of Appeal-Constitution of Kenya 2010, articles 22, 23 & 165(3).
Constitutional Law-judiciary-Judges and Magistrates Vetting Board-judges found to be unsuitable to continue serving in the judiciary-the status of judgments delivered by judges who were found to be unsuitable to continue serving-whether such judgments would be annulled upon the making of an application for annulment.

Brief facts:
In HCCC No 367 of 2000 the 1st Interested Party obtained a High Court judgment against the Petitioner for Kshs. 54,902,400 for mesne profits, Kshs. 10, 000,000 general damages for trespass and Kshs. 6,000,000 for loss of business opportunity. The Petitioner appealed to the Court of Appeal, where a three judge bench, reduced the amount owed to Kshs. 22,729,800/=.  The Petitioner filed an application for a review of the judgment but the application was dismissed except that the date of interest was reviewed.
Subsequently, the 3rd Respondent, the Judges and Magistrates Vetting Board (the Board), was established. The Board found Justice Okubasu unsuitable to serve and he was removed from office. The Petitioner said that the decision on suitability to serve was an indictment and proof of bias against one of the judges who presided over its appeal at the Court of Appeal. According to the Petitioner, the Court of Appeal decision should be annulled. The Petitioner also alleged that there had been a violation of its right to a fair trial recognized in article 50 of the Constitution.

Issues:

  1. Whether the High Court had jurisdiction to hear and determine a matter in which the annulment of a Court of Appeal judgment was sought.
  2. The status of judgments delivered by judges that were found to be unsuitable to continue serving by the Judges and Magistrates Vetting Board. Read More..

Held:

  1. The jurisdiction of a court entailed the authority reposed on the Court of law to take cognizance of matters placed before it for adjudication. That jurisdiction may be general or specific, limited or unlimited. Jurisdiction of a court may be conferred by the Constitution, statute or both and jurisdiction could only be exercised by the Court as conferred upon it by the law.
  2. The Court had to exercise jurisdiction conferred upon it by the Constitution or statute or both. It could not exercise jurisdiction that it did not have or exceed the jurisdiction conferred upon it or even confer jurisdiction upon itself through some form of innovation. Any action taken by the Court without jurisdiction or in excess of jurisdiction would be unconstitutional or illegal.
  3. Article 165(3) of the Constitution conferred on the Court very wide jurisdiction but it was not exhaustive and in article 165(3)(e) the High Court could have any other jurisdiction, original or appellate, conferred on it by legislation.  The jurisdiction conferred on the High Court included jurisdiction to determine questions relating to the constitutionality of an act said to be done under the authority of the Constitution and questions relating to the enforcement of fundamental rights and freedoms.
  4. There was no remedy that the High Court was unable to grant under the Constitution. Under article 23 (3) of the Constitution, the High Court was empowered to grant appropriate relief including declaration of rights, injunctions and conservatory orders among others.
  5. Granting an appropriate relief meant that the Court may have to fashion new remedies to ensure the protection and enforcement of fundamental rights and freedoms. An appropriate relief had to mean an effective remedy. The appropriate relief would depend on the nature of the right infringed and the nature of the infringement.
  6. Articles 22 and 23 as read with article 165(3) of the Constitution were to the effect that the High Court would redress a denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights. That implied that a Petitioner would have to move to Court alleging a violation of rights and fundamental freedoms and on being satisfied as to the violations, the Court would prescribe appropriate redress based on the facts and circumstances of the case.
  7. The impugned judgment was made by a court which was superior to the High Court in terms of judicial hierarchy. The judgment was binding on the Court in terms of precedent. The High Court had wide jurisdiction but there was a constitutional caveat to the effect that the High Court could not supervise other superior courts.
  8. Article 165(6) of the Constitution provided that the High Court had supervisory jurisdiction over subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial authority but not over a superior court. Superior courts in terms of article 162 (1) of the Constitution were the Supreme Court, the Court of Appeal, the High Court and courts of equal status namely; the Employment and Labour Relations Court and the Environment and Land Court.
  9. Considering the High Court's place in terms of judicial hierarchy, the High Court could not direct the Court of Appeal to reopen a closed appeal and hear it de novo. That would amount to undermining the authority of the Court of Appeal and it would be contrary to the wording of article 165(6) of the Constitution.
  10. The Board's finding that one of the judges on the bench that issued the impugned decision was unfit to continue serving did not grant the High Court jurisdiction to annul a Court of Appeal judgment. The High Court could not attempt to exercise jurisdiction which it did not have and direct the Court of Appeal to open a closed appeal and re-hear it. 
  11. The constitutional court division of the High Court did not have superior or special jurisdiction over the Court that heard and determined HCCC No 367 of 2000. It was a court of concurrent jurisdiction and for that reason it could only exercise jurisdiction conferred on it by the Constitution or legislation where appropriately moved.
  12. Judicial bias would constitute an infringement on the right to fair hearing which was a core value in Kenya’s constitutional set up. Accusations of bias, however frivolous, were capable of tarnishing the officer concerned as well as public confidence in the Judiciary as an institution.
  13. The impugned judgment was issued by a bench of three judges and a claim of bias was only made against one of them. The judicial officer against whom the claim of bias was made was not a party to the proceedings. The reliefs sought gave the impression that the Petitioner wanted a second chance to litigate his appeal. While seeking to have the Court of Appeal judgment annulled, the Petitioner did not seek to have the High Court judgment that gave rise to the appeal annulled. The High Court should not take a judicial misadventure and attempt to annul a decision of a superior court as it was not sitting on appeal over the decision of another superior court.
  14. The decisions of the Court in Standard Chartered Financial Services v Manchester Outfitters [2016] eKLR and Re Pinochet [1999] UKHL 52 (January 1999) could be distinguished from the petition. The two cases were set aside by the Court of Appeal and the House of Lords, respectively, and not by inferior courts.

Petition dismissed.

Long'et Terer - CEO and Editor

e: editor@kenyalaw.org

t: @LongetTerer

The Kenya Law Team

Where Legal Information is Public Knowledge.

The National Council for Law Reporting | P.O Box 10443 - 00100, Nairobi Kenya. | www.kenyalaw.org