Rulings which made bad law

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By Shadrack Muyesu

The decision by Justice Jessie Lessit in ‘Republic v Zacharia Okoth Obado’ [2018] eKLR has to go down as one of the most ludicrous this year. In dismissing the bail application of Migori Governor Zachariah Okoth Obado, while the Court reaffirmed the onus of the Prosecution to prove presence of compelling reasons to deny bail, it took a step back to deny bail in the absence of witness statements and other relevant evidence.
In essence, by punishing the applicant for the Prosecution’s failure to avail evidence on time, the Court disregarded the pristine principle of innocence till proof of guilt and opened room for indefinite remand. Inter alia, the Court found that failure to provide them could not be interpreted to mean that the Prosecution had no case at all, unless good grounds existed which could lead to such a conclusion. Further, without proof, the court ruled that political influence was a ground for denial of bail. In my view, there hasn’t been clearer evidence than this, of political bias and judicial activism.

It is established policy that an accused person should not be subjected to pre-trial detention where the evidence against him or her is tenuous, even if the charge is serious. Conversely, it may be justifiable to subject an accused person to pre-trial detention where the evidence against the accused person is strong. In Republic v David Muchiri Mwangi [2018] eKLR the Court had this to say:

For the accused to have been charged the investigations must have been completed; and even if there is still pending investigation, that in itself is not compelling reason enough to deny the accused his constitutional right to bail. The fact that an accused person is a man of means (read influence) in itself cannot be a ground for denial of bond unless it is proved to the satisfaction of the court that he is using the same means (influence) to defeat the course of justice which is not the case herein.

The decision may be compared to another bail application at a similar time in ‘Republic v Joseph Kuria Irungu & another’ [2018] eKLR, where the Court reaffirmed the need for the Prosecution to provide evidence on a balance of probabilities that would necessitate the denial of bail. Herein, in denying the 1st accused bail, the Court did not commit the error of ignoring the response of the 1st accused, but acknowledged that response had either been absent or ineffective. In both applications, the courts relied heavily on pre-bail reports. To cure the prejudice that often arises from such reliance, the Court in the latter application was at least keen on whether the legal and evidential burden had been discharged.

Another curious case was the decision of the High Court in ‘John Kimani Njoroge v Republic’, Criminal Appeal Number 183 of 2014. It is a decision, in my opinion, which needs review. The Court ruled that kissing and indecently touching another person against his/her will is not an offence under Section 2 of the Sexual Offences Act.

Here, the Appellant was charged with the offence of engaging in an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. He was charged with intentionally and unlawfully kissing on the mouth and holding the waist of MM, a child aged 13 years, with his hands. He was found guilty, convicted and sentenced to 10 years imprisonment. The Appellant’s grounds for appeal was that: the Trial Court erred by introducing a new definition of what constituted an indecent act; that the definition was not founded in law; and that the Trial Court erred in failing to appreciate and find that the particulars of the charge did not support the offence in question.

In issue was whether an accused person could be convicted of an indecent act that was not defined in the Sexual Offences Act. Where it could apply alternative process, like reading in or ejusdem generis to place kissing against the victims will as an indecent act, the Court merely regretted that the Act did not provide for offences occasioned by when a person indecently touched another person against his/her will or other parts of the body other than those provided under Section 2, and suggested an amendment of the particular section. The appellant was acquitted.

In ‘Irene Atieno Ochieng v Republic’ Criminal Appeal No. 8 of 2017, the Appellant was charged with the offence of defilement contrary to Section 8(1)(4) of the Sexual Offences Act No. 3 of 2006 (the Act). She also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Act. She denied both counts. The Prosecution submitted that PW2 learnt that her son, the Complainant, then aged 17 years old and who had just dropped out of school where he was in Standard Six, was engaged in a sexual relationship with the Appellant, a woman with several children. PW2 then reported the matter to their spiritual leader after which a meeting was convened and the Appellant was vehemently warned against engaging in sex with the complainant who was still a minor in law regardless of the circumstances. The Appellant apologised and vowed to terminate the relationship as she alleged not to have been aware that the Complainant was still a child. However, the Appellant subsequently continued with the relationship to a point where the Complainant moved out of their home and began staying with the Appellant. The trial court found the Appellant guilty and convicted her of the offence of defilement.

She was sentenced to 15 years imprisonment. Dissatisfied with the conviction and sentence, the Appellant brought the instant appeal.
Among the issues for consideration was whether the defence of deception existed to a perpetrator of the offence of defilement where the perpetrator discovered later that the Complainant was a minor. The Court held that it existed. In doing so, it went ahead to establish the circumstances where the defines would be available.

The accused person had to demonstrate that: it was the child who deceived the accused person into believing that he/she was over the age of eighteen years at the time of the alleged commission of the offence – demonstration could be by word of mouth or by action; that the accused person reasonably believed that the child was over the age of eighteen years; and that when all the circumstances were brought on board and duly interrogated, they pointed to the conclusion that the belief on the part of the accused person was reasonable.

In the present instance, although the Appellant demonstrated that the complainant – a bodaboda operator – behaved like an adult, the Court found that the defence was not available to her as she had been severally warned by the complainant’s mother and pastor that the he was a minor. She couldn’t say that she didn’t know. The Court upheld the 15 year prison sentence.

Another poorly executed judgment was the Court of Appeal’s decision in ‘Prideinn Hotels & Investments Limited v Tropicana Hotels Limited’ [2018] eKLR. Here, the Court overturned the principle set in ‘In the matter of Tatu City Limited & Kofinaf Company Limited’ [2013] eKLR that a winding up order may not be made if there is an alternative remedy available to say that it is not Compulsory for liquidation of a company to be an option of last resort where a Company Failed to Pay its Debts.

What makes this decision so bad is the fact that it goes against the purpose of the Insolvency Act, which endeavours to maintain companies as going concerns as the cornerstone of insolvency proceedings. Indeed, this was the substratum of W. Karanja, JA’s dissenting opinion.

The decision of the High Court in ‘Katiba Institute v Attorney General & 9 others’, Petition No 84 of 2018, was also disappointing. Inter alia, the Court held that Section 15(2) of the Judicial Service Act is not unconstitutional for failing to provide that nominations and appointment of members to the JSC would have to be done in an open, competitive and transparent process.

The facts (and politics) of this case are well known. On February 13, 2018, the President nominated three persons as Commissioners to the Judicial Service Commission (JSC) and their names were forwarded to the National Assembly for approval. The 2nd Interested Party was nominated as a representative of the Public Service Commission pursuant to article 171(2) (g) of the Constitution. The 3rd and 4th Interested Parties were nominated to represent the public under Article 171(2) (h) of the Constitution.

The Petitioner contended that the identification and nomination of the 2nd, 3rd and 4th Interested Parties was bereft of fair competition or merit contrary to Article 232(1) (g) of the Constitution, and was done without public participation. The Petitioner also stated that it was the role of the Public Service Commission and not the President to nominate the 2nd Interested Party.

The Petitioner challenged the constitutional validity Section 15(2) of the Judicial Service Act, 2011, for failing to provide for the manner of identification and qualifications for appointment of the persons contemplated under Article 171(2) (g) and 171(2) (h) of the Constitution. The Court argued that the impugned appointments negatively impacted on judicial independence and the proper functioning of the Judicial Service Commission.

Contrast this with the decision of the same court in ‘The Law Society of Kenya v National Assembly of Kenya and 3 others’ [2018] eKLR, where it held that with the exception of the two lay persons appointed by the President, elected members of the Judicial Service Commission are not subject to approval by the National Assembly before appointment.

Landmark ruling
A case that is undoubtedly going to have far-reaching consequences is the decision of the High Court in ‘Mohamed Ali Baadi and others v Attorney General and 12 others’ [2018] eKLR. The Court ruled that that the manner in which the Lamu Port, South Sudan, Ethiopia Transport Corridor (LAPSSET) project was conceptualised and implemented was unlawful and unconstitutional. Inter alia it was held that the project proponents had failed to carry out Strategic Environmental Assessment (SEA), as well as public participation and compensation before embarking on the individual components of the LAPSSET Project as they were duty-bound to do and that made the entire LAPSSET Project procedurally infirm.

Among others, the Court ordered the following:
Regarding, the EIA License, the Court ordered a return of the License back to NEMA for re-consideration. In re-considering the EIA License for the first three berths of the proposed Lamu Port, NEMA had to comply with the following guidelines: the ESIA Report had to consider, assess, estimate and report on the external costs of the first three berths of the proposed Lamu Port; the Project Proponent had to prepare a detailed Environmental Measuring and Monitoring Plan (EMMP); and all the other guidelines specified later on the disposition in relation to the ESIA and SEA.

It also ordered that the EIA License re-consideration process had to be done within one year from the date thereof and a report filed in the Court to confirm compliance.

For the avoidance of doubt, the orders of the Court on remand of the EIA License to NEMA meant that the EIA License was returned to NEMA for further action in accordance with the judgment, and the said EIA License would in the meantime remain valid and operational pending any further orders of the Court in accordance with the disposition.

Regarding SEA, the Court directed that NEMA had to satisfy itself that the final SEA Report adequately considered all the guidelines given in the disposition in reconsidering the EIA License when assessing each of the individual components of LAPSSET Project and its associated infrastructure.

The decision of the Supreme Court of Kenya in ‘Gladys Boss Shollei v Judicial Service Commission & another’ [2018] eKLR Petition No. 34 of 2014 too offered interesting perspectives. The matter was an appeal against the Court of Appeal decision upholding a decision of the Employment and Labour Relations Court to the effect that the 1st Respondent (JSC) had violated her fundamental rights and freedoms in removing her from office without a basis in law. The Petitioner prayed for judgment setting aside the Court of Appeal’s decision.

Inter alia, the JSC sought preliminary orders extending the time-span for filing the Application beyond the limit earlier prescribed and that most of the Court’s Judges, in the full seven-Judge bench of that Court, recuse themselves from the hearing of the Petitioner’s Appeal on account of bias.

The question before the Court was whether a judge of the Supreme Court who was a member of the Judicial Service Commission had to recuse him or herself from a case in which the Judicial Service Commission was a party. In dismissing the application, the Court upheld the doctrine of necessity in the following terms: first, that party was entitled to be heard by a Court before which he or she appeared even though it was perceived to be conflicted, if there was no other Court to which he or she could go.

The doctrine of necessity and the duty to sit would have to apply. Secondly, that there was a presumption of impartiality of a judge. An application for recusal of a Supreme Court Judge could not be determined in a similar manner as that of a judge of the other superior courts due to the special consideration that had to be given to its quorum. The Court was the final bastion in the architectural design of Kenya’s Constitution that protected and defended the rights of every citizen and enforced the obligations of the State towards them. Its intervention, when rightly invoked, as in the instant case ought to be available to the citizens of Kenya.

The Court also determined the province of recusal in following terms: an application for recusal should not seek to affirm the decision of the court/tribunal whose decision was subject of appeal; an application for recusal was a shield to protect the applicant’s interest so that his/her matter was heard by an impartial court. It was not a sword to be wielded by an applicant to steal a match and deny a chance to the other party. Hence by praying that the effect of the Application will be the affirmation of the Court of Appeal decision, the Applicant sought to go beyond the genuine province of a recusal motion.

The decision of the Court of Appeal in ‘Meru County Government v Ethics & Anti-Corruption Commission’ [2018] eKLR is perhaps the most interesting this year. Herein the Court held that a County Government cannot sue to enforce the rights Contained in the Bill of Rights. According to the Court, although, the county government fit the definition of a person under Article 260 of the Constitution of Kenya 2010, the Bill of Rights conceptualises human rights and therefore, a non-natural person could not claim any of the rights under the framework.

The facts of this case were that, between March 20, 2017 and April 15, 2017 pursuant to a search warrant issued by the Chief Magistrate to the Respondent, the Respondent accompanied by police officers entered the offices of the Appellant’s Officers and took possession of and carted away all documents from the Appellant’s Procurement Department without the Appellant’s officers being allowed an opportunity to make copies of the said documents.

Other decent decisions
Does the High Court have power, in light of its supervisory jurisdiction, to quash a Court of Appeal judgment? The question came up for determination in ‘Kenya Hotel Properties Ltd v Attorney General & 5 others’ Constitutional Petition 2015 eKLR, where the Petitioner asked the High Court to quash a Court of Appeal decision awarding damages to the 1st interested party on the basis that the Bench was conflicted – which allegation was proved by the removal of one of the judges from office by the 3rd respondent, the Judges and Magistrates Vetting Board.

Applying itself to the issue, the High Court held, inter alia, that as a court of concurrent jurisdiction, it could only exercise jurisdiction conferred on it by the Constitution or legislation where appropriately moved and as such, it lacked supervisory jurisdiction over the Court of Appeal.

With regard to the status of judgments delivered by judges who were found to be unsuitable to continue serving by the defunct Judges and Magistrates Vetting Board, whether such judgments would be annulled upon the making of an application for annulment, the Court although agreeing that indeed such judgment could be annulled, emphasised that such annulment could only come where it could be shown that the trial bench was comprehensively compromised. In the present case, the Court ruled that a decision cannot be set aside for bias where the claim of bias was only made against one of the judges on three member panel.

In ‘S C N v Republic’ [2018] eKLR, the Court grappled with the question of 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. The Court concluded that it could deal with minors who committed offences but attained the age of majority before sentencing in its discretion. In doing so, it relied on Section 191(1) (l) Children Act which provided for an offender to be dealt with in any other lawful manner.

In this matter, 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.

Another issue that came up was whether a charge could be defective if it was in variance with the evidence adduced in its support; the circumstances in which contradiction would lead to rejection of evidence due to contradiction with charges preferred against an accused. Here, the Court held that, while a charge could be defective if it was in variance with the evidence adduced in its support, 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 could 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. Having said so, the Court found that 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.

In regard to the Jurisdiction of the Supreme Court, the Supreme Court in ‘Boniface Katana Kilaveri v Ethics & Anti – Corruption Commission and Another’ [2018] eKLR held that appeals lie with the Supreme Court as a of right where the question regards an interpretation or application of the Constitution.

What happens when there is inconsistency between two judgments of the Court of Appeal? The issue was dealt with in ‘Kenfreight (EA) Limited v Benson K Nguti’ [2018] eKLR. The Respondent filed a suit in the trial court claiming unfair termination of employment. The Respondent’s claim was upheld by the 1st Appellate Court, which held that the said termination of employment was unfair even though the Applicant complied with Section 35 of the Employment Act, 2007 by paying one month’s salary in lieu of notice and that the Respondent was entitled to 12 months’ salary.

The Applicant sought leave and certification to lodge an appeal against the 1st Appellate Court’s decision to the Court but the Application was declined on the ground that no matter of general public importance warranting further appeal had been shown. Aggrieved by the decision, the Applicant filed the instant Application.

Applying itself to the issue, the Supreme Court ruled it had power to entertain an appeal where a matter of general public importance was concerned and to reconcile conflicting decisions.
In ‘Jacob Nyandega Osoro v Chief Justice of Kenya & another’, Constitutional Petition 115 of 2017, a petitioner challenged the constitutionality of Rules 3(5) (c), 33 and 34 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, (the Mutunga Rules). Those rules entailed stipulations on the payment of court fees for persons filing constitutional petitions for the enforcement of fundamental rights and freedoms. Rule 3(5)(c) of those Rules provided for the timely disposal of such proceedings at an affordable cost, Rule 33 required parties to pay fees that were the same as those applicable to civil proceedings at the High Court and rule 34 provided for applications to the Registrar for purposes of seeking an exemption from paying court fees.

The Petitioner contended that the impugned rules violated his fundamental rights and freedoms guaranteed under Articles 19(3) (a), 21(1), 22(1) and 22(3) (c) of the Constitution. Inter alia, the Petitioner sought court orders compelling the Chief Registrar of the Judiciary (the 2nd Respondent) and her agents to accept documents on the enforcement of the Bill of Rights and to undertake all the necessary procedures for the proper commencement of proceedings without court fees being paid.

The question was whether the provisions of Rules 3(5) (c), 33 and 34 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, (the Mutunga Rules) in so far as they required litigants to pay court fees before instituting petitions for the enforcement of fundamental rights and freedoms, were inconsistent with Article 22(3) (c) of the Constitution and were therefore unconstitutional.
Emerging from an extensive discourse on constitutional interpretation, the Court held that such fees was constitutional. In its view, the rationale of Article 22(3) (c) of the Constitution was that all persons would exercise their right of access to justice regardless of their financial status. However, those who were able to pay court fees had to pay court fees while those that were unable, would not be denied the right to access courts.

In ‘Douglas Bundi Kirimi v Joseph Kaberia Arimba, Speaker County Assembly of Meru & 3 others’ Constitutional Reference No 26 of 2017, the High Court held that the Constitution does not envisage the creation of the position of Deputy Speaker of a County Assembly and the creation of such a position would be unconstitutional.

The question of what test was to be followed in determining whether a question was one of law or of fact was canvassed in ‘Sumra Irshadali Mohammed v Independent Electoral and Boundaries Commission & another’ [2018] eKLR. The Court of Appeal ruled that the test of whether a question was one of law or of fact was whether the appellate court could determine the issue raised without reviewing or evaluating the evidence.

In ‘MEK v GLM’ Civil Appeal No 66 of 2015 the Court of Appeal held that Article 45(3) of the Constitution ought to be read into Section 25(2) of the Matrimonial Causes Act (repealed) with the result that both spouses would have an equal right to apply for maintenance, and therefore the husband’s right to apply for maintenance was no longer limited to only cases where he suffered from insanity. That was consistent with the position under the Marriage Act No 4 of 2014, Section 77 which gave the Court the power to order payment of maintenance to a spouse or former spouse, so that maintenance could be paid to either a wife or husband.

A decision that would certainly interest legislators, the Employment and Labour Relations Court in ‘Kamau Aidi & 47 others v Salaries and Remuneration Commission’ (SRC) Constitutional Petition No 6 of 2017 ruled that it is unlawful for the Salaries and Remuneration Commission to undertake job evaluations whose outcome is to vary employees’ remuneration and benefits to the employees’ disadvantage.

Where a contract in an international contract of employment did not expressly provide for the Court which would have jurisdiction in case of conflict or the law applicable, before assuming jurisdiction, a Court ought to consider: the place of the contract, the law applicable in the place of the contract and the domicile of the parties. The Court had to also have regard to whether any judgment it rendered would be effective and capable of being enforced. This was the decision of the Employment and Labour Relations Court at Nairobi in ‘Dorcas Kemunto Wainaina v IPAS’ [2018] eKLR. In this matter, Considering that the contract provided that the Claimant would be based in both Chapel Hill, North Carolina, and Nairobi and that the remuneration was subject to Kenyan tax laws and that the dispute concerned breach of contract and unfair termination of employment, the Court found that it had jurisdiction over the dispute.

In ‘Apollo Mboya v Attorney General & 2 others’ Petition No 472 of 2017 the High Court declared Sections 7 and 11 of the Parliamentary Powers and Privileges Act unconstitutional on grounds of being ouster clauses which unjustifiably limit the right of access to justice.

In ‘Republic v SOM’ Criminal Case No 6 of 2011, the High Court declared Section 166 of the Criminal Procedure Code which provides for a finding of guilty but insane to be unconstitutional as the sentence imposed is indeterminate and at the Executive’s discretion. The effect of this decision is that convicted offenders who are insane can no longer be held in custody at the President’s discretion. In the Court’s opinion, to leave such discretion to the president is to usurp the independence of the Judiciary and in fact, what Section 166 intended was that the accused would be held at the discretion of the Court.

In ‘Isaac Ngatia Kihagi v Paul Kaiga Githui’ [2017] eKLR, the Environment and Land Court at Nyeri held that “failure to obtain the consent of the Land Control Board within the stipulated time merely rendered a controlled dealing voidable as opposed to being void.”

Aggrieved by the Respondents’ actions, the Appellant filed a Petition in the trial court, claiming that the Respondent, through its officers, had violated various rights and fundamental freedoms of the Appellant’s officers and the Constitution. The trial court dismissed the Appellant’s Petition and held that the Appellant was not a person who could petition the Trial Court for violation of its fundamental rights and freedoms under Article 22 of the Constitution by another State organ. Aggrieved by the dismissal, the Appellant filed an appeal. The Court dismissed it.

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