Volume 1

Abdalla and another v Attorney-General and others [2007] 1 EA 1 (HCK)

Anyang’ Nyong’o and others v The Attorney-General and others [2007] 1 EA 5 (EACJ)
Attorney-General v Anyang’ Nyong’o and others [2007] 1 EA 12 (EACJ)
Begumisa Financial Services Ltd v General Mouldings Ltd and [2007] 1 EA 28 (CAU)
another
Brouwen v Attorney-General [2007] 1 EA 37 (HCK)
Charo v Republic [2007] 1 EA 43 (CAK)
Church Road Development Company Limited v Barclays Bank of [2007] 1 EA 48 (HCK)
Kenya Limited and others
David Thiongo t/a Welcome General Stores v Market Fancy [2007] 1 EA 56 (CAK)
Emporium
Dibagula v Republic [2007] 1 EA 59 (CAT)
Falima v Ally and another [2007] 1 EA 69 (CAT)
Ganatra v Ganatra [2007] 1 EA 76 (HCK)
Githuku v Republic [2007] 1 EA 83 (CAK)
Gulam and another v Jirongo [2007] 1 EA 87 (CCK)
Imbogo v Kenya Sugar Board and others [2007] 1 EA 92 (HCK)
Ismail v Mbarak and another [2007] 1 EA 100 (CAT)
Jetlink Express Limited v East African Safari Air Express Limited [2007] 1 EA 104 (CCK)
Kabiru v Republic [2007] 1 EA 107 (CAK)
Kamani v Kenya Anti-Corruption Commission [2007] 1 EA 112 (HCK)
Kamunyu and others v AG and others [2007] 1 EA 116 (CAT)
Karobia v Republic [2007] 1 EA 128 (HCK)
Katikenya v Republic [2007] 1 EA 133 (CAK)
Keter v Republic [2007] 1 EA 135 (CAK)
Kimatu Mbuvi t/a Kimatu Mbuvi and Bros v Kioko [2007] 1 EA 139 (CAK)
Kitosi and others v Bumero Estates Limited [2007] 1 EA 150 (CAU)
Kitsao v Republic [2007] 1 EA 157 (CAK)
Kutima Investments Limited v Kihara and another [2007] 1 EA 162 (CAK)
Magezi v Multichoice Uganda Limited [2007] 1 EA 164 (HCU)
Mangi v Republic [2007] 1 EA 168 (CAK)
Mariba v Mariba and another [2007] 1 EA 175 (CAK)
Mashimba v Republic [2007] 1 EA 180 (CAT)
Mbabali v Electoral Commission [2007] 1 EA 182 (CAU)
Mburugu v Fidelity Shield Insurance Company Ltd [2007] 1 EA 190 (CAK)
Mohammed v Soor [2007] 1 EA 205 (CAK)
Musah v Muwonge [2007] 1 EA 212 (SCU)
Musundi and others v Small Enterprises Finance Company Limited [2007] 1 EA 219 (HCK)
Mutua v Republic [2007] 1 EA 232 (CAK)
Mwatela v East African Community [2007] 1 EA 237 (EACJ)
Nagoli v Attorney-General and another [2007] 1 EA 252 (CCU)
Nation Media Group Limited v Attorney-General [2007] 1 EA 261 (HCK)
Ngala v Republic [2007] 1 EA 285 (CAK)
Nikolai v Republic [2007] 1 EA 292 (CAT)
Njogu and Company Advocates v National Bank of Kenya Limited [2007] 1 EA 296 (CCK)
 Njogu and Company Advocates v National Bank of Kenya Limited [2007] 1 EA 296 (CCK)
Okere v Kiiyukia and others [2007] 1 EA 304 (HCK)
Osero and Company Advocates v Labhsons Limited [2007] 1 EA 312 (HCK)
Palmer v Palmer and another [2007] 1 EA 317 (CAU)
Republic v Chairman Meru North District Land Disputes Tribunal [2007] 1 EA 343 (HCK)
and others ex parte M’Mailutha
Research International East Africa Limited v Arisi and others [2007] 1 EA 348 (CAK)
Sanghani Investment Limited v Officer in Charge Nairobi Remand [2007] 1 EA 354 (HCK)
and Allocation Prison
Sanitam Services (EA) Limited v Rentokil (K) Limited and another [2007] 1 EA 362 (CAK)
Shah v Prime Bank Limited [2007] 1 EA 374 (CCK)
Tanzania Standard (Newspapers) Ltd v Ling’ande [2007] 1 EA 381 (CAT)
Thande v Housing Finance Company of Kenya Limited [2007] 1 EA 386 (CCK)
Turungi v Republic [2007] 1 EA 389 (CAK)
Uganda v Besigye [2007] 1 EA 395 (CCU)
Waweru v Richu [2007] 1 EA 403 (CAK)

Abdalla and another v Attorney-General and others

[2007] 1 EA 1 (HCK)

Division: High Court of Kenya at Nairobi

Date of ruling: 14 February 2007
Case Number: 59/07
Before: Nyamu J
Sourced by: LawAfrica
Summarised by: E Ongoya

[1] Constitutional law – Enforcement of Fundamental Rights and Freedoms – Locus standi – Who is
entitled to the right to a fair trial – Whether relatives of a victim of offence can claim the right to a fair
trial.

Editor’s Summary
In High Court criminal case number 153 of 2004, the interested parties in this case were charged with
murder and acquitted. Upon their acquittal, the family of the deceased commenced a constitutional
petition claiming that they were victims of crime and had not received a fair trial owing to the existence
of a teacher/student relationship between the trial Judge and the lead defence counsel. Together with the
constitutional petition was filed a chamber summons application for conservatory order in which it was
sought that the travel documents of the interested parties in particular the passport should continue to be
held in the custody of the High Court pending the hearing and disposal of the petition.
Held – Under the current structure of our Constitution and the practice of criminal law in Kenya, the
parties in criminal cases are the State and the accused person except where there is a private prosecutor.
 The provisions of section 77 of the Constitution concerning an independent and impartial tribunal
relate to accused persons. By implication the State is equally entitled to an independent and impartial
tribunal.
The petitioners had no standing because the right was clearly secured to the accused/interested parties
and only the interested parties could enforce the said part of the Constitution.
The Attorney-General was entitled to have any of the rights under section 77 enforced.
The original jurisdiction vested in the High Court under section 84 of the Constitution is only
triggered off by the existence of an applicant with standing and a threatened or real violation or
contravention of Chapter 5 and freedoms which the petitioners had on a prima facie basis failed to
demonstrate.
The court’s first duty or fidelity is to the Constitution of the country and the second duty or fidelity is
to international human rights law where the Constitution is silent or vague.
A Constitutional Court, when approached should not adopt an attitude of infallibility. It should always
be jealous of its jurisdiction and in particular in preserving its jurisdiction.
Page 2 of [2007] 1 EA 1 (HCK)

Cases referred to in ruling

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

Ruling
Nyamu J: The chamber summons dated 2 February 2007 and filed on the same day seeks the orders the
first one being the certification of urgency in order for the matter to be heard on a priority basis. The
second prayer seeks the vacation declaration of nullity and/or the setting aside of a judgment delivered in
the High Court criminal case number 153 of 2004 by my brother Mr Justice Ombija in which he
acquitted the two interested parties. In the course of his submission the learned counsel for the applicant
Dr Khaminwa gave indications that he was not pursuing this prayer. The third prayer seeks that the travel
documents of the “IPs” in particular the passport should continue to be held in custody of the High Court
pending the hearing and disposal of the petition. And the fourth prayer seeks that the Principal
Immigration Officer be ordered to ensure that the interested parties do not leave jurisdiction.
The chamber summons is based on a petition of the same date which seeks almost similar declarations
and orders as set out above.
I have considered the written submissions of counsel including three oral submissions supporting or
opposing the orders for interim relief.
The thrust of the application is that the judgment delivered by the High Court ought to be set aside
because the lead counsel for the IPs and the presiding Judge in the criminal court had a teacher/student
relationship during the period of the trial.
When the matter first came before me seeking interim relief, the novelty of the application attracted
my attention and for this reason I did grant timed interim orders to enable the parties to argue the
application inter partes. When the matter came for hearing inter partes, I directed that the matter
proceeds on a priority basis because of the following:
(1) Interim orders could affect the liberty of interested parties who had been acquitted by a competent
court under our law;
(2) I recognised that there was an immediate issue of standing or locus standi;
(3) I further recognised that there is a serious issue of jurisdiction because the trial court and this
Court have concurrent jurisdiction;
(4) I was also not oblivious to the fact that there was also a serious jurisprudential issue raised by the
proceedings which could not be wished away in a summary manner;
(5) It was also clear to the court that the Attorney-General needed to be given an opportunity to
consider his position in view of his special duties concerning appeal or review under section 77(5)
of the Constitution.
Having considered the arguments and the authorities cited I have deliberately opted to say very little so
as not to prejudice the hearing of the petition. I shall therefore only confine myself to the merits or the
demerits of granting the interim orders sought – strictly on a prima facie basis.
Page 3 of [2007] 1 EA 1 (HCK)

My tentative finding on the issue of standing is that under the current structure of our Constitution and
the practice of criminal law in this country the parties in criminal cases are the State and the accused
persons except where there is a private prosecution. And there is no such private prosecution here. Since
the heart of the petitioner’s case is that section 77 of the Constitution has been contravened or is being
contravened they would like this Court to invoke the now recognised original jurisdiction of the court
under section 84(1) and (2) of the Constitution. The petitioners allege that in the light of their discovery
of the student/teacher relationship they were not accorded an independent and an impartial court as set
out in section 77 of the Constitution. The provisions of section 77 of the Constitution concerning an
independent and impartial tribunal relate to accused persons. By implication the State is equally entitled
to an independent and impartial tribunal. My tentative view is that the petitioners who because of the
bereavement have the court’s sympathy have no standing because the right is clearly secured to the
accused/interested parties and only the interested parties can enforce this part of the constitutional
provision. The petitioners have therefore failed to demonstrate that they are covered by any of the
provisions of section 70 to 77 of the Constitution. The Attorney-General is of course perfectly entitled to
have any the rights under section 77 enforced but up to now he has not expressed any view in this regard
– and he has all the cards close to his chest. He has said nothing about the chances of an appeal or a
review as contemplated by section 77(5) of the Constitution.
Dr Khaminwa has strongly argued that the court’s jurisdiction in securing the rights under section 84
is not limited especially in terms of the reliefs which can be designed by the court to serve fundamental
rights but it is also equally true that unless the petitioners can bring themselves under any of the
provisions of sections 70–83 the High Court would have no basis whatsoever to invoke the original
jurisdiction. The original jurisdiction is only triggered off by the existence of an applicant with standing
and a threatened or real violation or contravention of Chapter 5 rights and freedoms which the petitioners
have on a prima facie basis failed to demonstrate.
I have been urged to recognise the petitioners as “victims” of a crime and being victims they are
entitled under the international human rights law to ventilate their claim under Chapter 5, but the court’s
finding on this is that the court’s first duty or fidelity is to the Constitution of the country and the second
duty or fidelity is to the international human rights law where the Constitution is silent or vague. In this
case the provisions of section 77 are as clear as the day and I cannot strain their meaning in order to
prevent any new ground. If I dared do so I would not break any jurisdiction under the Kenyan law.
The court does however recognise the force and the persuasiveness of the learned counsel’s
arguments concerning the rights of victims of crime. Victims of crime have in past few years gained a
position not hitherto given to them by the municipal criminal laws of many jurisdictions including
Kenya. Thus the expanding international jurisdictions in this area recognises their rights to right of
hearing by prosecutors, compassion, their right to damages, compensation and restitution. In addition the
Covenants on civil and political rights and in particular article 7 does demand that the States would in
certain cases have responsibilities to the victims of crime. It is therefore still unsettled as to what
Page 4 of [2007] 1 EA 1 (HCK)

the petitioners’ rights under international law could be as against the State in the situation before me but
that is perhaps the realm of another court or courts on a different plane.
It is with the above in view that I am unable to give the reliefs as sought except one – namely the
preservation of the court file until the petition is heard. The passports are not covered by this order unless
they are otherwise lawfully held in court. The reason for this is that a Constitutional Court when
approached should not adopt an attitude of infallibility – it should always be jealous of its jurisdiction
and in particular in preserving its jurisdiction. For this reason I grant this order only. The other reason is
that the order does not prejudice any of the parties including that of the interested parties “the IPs” who
are perfectly entitled to plead the plea of autrefois acquit all the way and whose liberty cannot prima
facie be denied on the basis of the victim’s case under the Constitution and in the light of the clear
provisions of section 77 and section 84 – the right of an applicant under the sections except habeas
corpus must be in relation to him and not to anybody else. Victims of crime are not prima facie covered
by section 77 and section 70 of the Constitution.
I order that the file be preserved until the determination of the petition but I disallow all the other
prayers sought.
Having ruled as I have may I take this opportunity to emphasise on one point – State responsibility
from the standpoint of international conventions which the country has ratified including the two
Covenants on Civil and Political Rights and Economic, Social and Cultural Rights all of 1966. Without
in any way pre-judging this matter the Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power (Resolution number 40/34) defines victims as:
“Persons who individually or collectively, have suffered harm, including physical or mental injury, emotional
suffering, economic loss or substantial impairment of their fundamental rights through acts or omissions that
are in violation of criminal laws operative within Member States including those laws prescribing criminal
abuse of power.”

It is therefore possible for the State to be held internationally culpable for inaction for instance by
improperly invoking the law under the banner of equal protection of law guarantees to all persons. Any
lapse by the Attorney-General would in my tentative view fall under this provision and the fact that
international jurisprudence has recognised victims of crime in the criminal jurisprudence.
All I am saying is that this is a novelty the courts have not come across and it will be interesting to
watch what jurisprudential points emerge at the hearing of the Petition on merit. I am greatly indebted to
counsel for this novelty.
I make the orders as above.
For the appellant:
Dr Khaminwa
For the respondent:
Information not available

Anyang’ Nyong’o and others v The Attorney-General and others

[2007] 1 EA 5 (EACJ)
 Division: East African Court of Justice at Arusha
Date of ruling: 27 November 2006
Case Number: 1/06
Before: Ole Keiwua P, Mulenga VP, Ramadhani, Mulwa and Warioba
JJA
Sourced by: LawAfrica
Summarised by: E Ongoya

[1] East African Court of Justice – Jurisdiction to interpret and apply the treaty – To determine the
legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the
Community.
[2] East African Court of Justice – Parties to proceedings – Who can be a respondent in a case at the
East African Court of Justice.
[3] Injunction – Interim Injunction – At the East African Court of Justice – Applicable principles.

Editor’s Summary
The applicants commenced a reference to the East African Court of Justice (hereinafter referred to as
“the Court”) under article 30 of the Treaty for the Establishment of the East African Community (“the
Treaty”). In the reference they contended, inter alia, that the process by which the representatives of the
Republic of Kenya to the East African Legislative Assembly (EALA) were nominated was incurably and
fatally flawed in substance, law and procedure and contravenes article 50 of the Treaty in so far as no
election was held, and aver that the Clerk to the National Assembly of Kenya, second respondent,
forwarded to the Clerk to the EALA, third respondent, an illegal list of names of Kenya’s representatives.
They prayed, inter alia, that the Court be pleased to restrain and prohibit the third and fourth respondents
from assembling, convening, recognising, administering oath of office or otherwise presiding over or
participating in election of the Speaker or issuing any notification in recognition of Messrs Clerkson
Otieno Karan, Safina Kwekwe Sungu, Gervase Akhaabi, Christopher Nakuleu, Sarah Godana, Abdi
Rahman Haji, Reuben Oyondi, Catherine Ngima Kimura and Augustine Chemonges Lotodo as
nominated representatives of the Republic of Kenya to the EALA.
The reference was filed on 9 November 2006 along with an ex parte application by notice of motion
for interim orders, inter alia, that pending the hearing and determination of the motion and of the
reference the Court be pleased to restrain and prohibit the third and fourth respondents from assembling,
convening, recognising, administering oath of office or otherwise howsoever presiding over or
participating in election of the Speaker or issuing any notification in recognition of any names of persons
as duly nominated representatives of the Republic of Kenya to the EALA.
The Court ordered that the respondents be served so that the motion is heard inter partes on 24
November 2006. The first, second, fifth and sixth respondents raised as a preliminary objection, the
Court’s lack of jurisdiction to hear and determine the reference and to grant the restraining orders prayed
for. In addition the second, fifth and sixth respondents objected to their being joined
Page 6 of [2007] 1 EA 5 (EACJ)

as parties to the suit. The Court directed at the commencement of the hearing that the three issues be
argued together so that the decision on them may be given in one ruling.
Held – By virtue of article 27(1) of the East African Community Treaty, the East African Court of
Justice has jurisdiction over the interpretation and application of the Treaty.
Under article 30, of the Treaty, the court is empowered to exercise that jurisdiction by determining the
legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the
community referred to it on the ground that it is unlawful or it infringes provisions of the Treaty. In the
reference the Court is called upon to determine if the process by which the Kenya’s representatives to the
EALA were nominated and the Election Rules under which it was undertaken are unlawful or an
infringement of article 50 of the Treaty on Election of Members of the Assembly.
Since the applicants maintained that what transpired was not an election, and the Election Rules used
did not conform to the procedure as envisaged under article 50 of the Treaty, on the face of it, therefore,
in order to determine the reference, the Court has to decide what the expression “each Partner State shall
elect” means and whether what transpired fits or does not fit within that meaning. This is an issue that
falls within the jurisdiction of the Court.
A reference under article 30 of the Treaty should not be construed as an action in tort brought by a
person injured by or through the misfeasance of another. It is an action to challenge the legality under the
Treaty of an activity of a Partner State or of an institution of the Community.
The matters referred to the Court, whose legality it had to determine related to the responsibility of
the Republic of Kenya as a Partner State, acting by its National Assembly under article 50 of the Treaty,
to elect nine members of the East African Legislative Assembly.
The second, fifth and sixth respondents were wrongly joined to the reference.
It is trite law within the jurisdictions of the three Partner States in the East African Community, that
an applicant who seeks an interim injunction must show a prima facie case with a probability of success.
Secondly, a court will not normally grant an interim order unless it is shown that if the order is not made
the applicant is likely to suffer irreparable damage or injury.
Injunction granted.

No cases referred to in ruling

Ruling
Ole Keiwua P, Mulenga VP, Ramadhani, Mulwa and Warioba JJA: The applicants named above
have brought a reference to this Court under article 30 of the Treaty for the Establishment of the East
African Community (“the Treaty”). In the reference they contend, inter alia, that the process by which
the representatives of the Republic of Kenya to the East African Legislative Assembly (EALA) were
nominated was incurably and fatally flawed in substance, law and procedure and contravenes article 50
of the Treaty in so far
Page 7 of [2007] 1 EA 5 (EACJ)

as no election was held, and aver that the Clerk to the National Assembly of Kenya, second respondent,
forwarded to the Clerk to the EALA, third respondent, an illegal list of names of Kenya’s representatives.
They pray that this Court be pleased:
(1) to interpret and apply the Treaty to the process of nomination and election of Kenya’s
representatives to the EALA;
(2) to declare that the Rules of Election applied by the Kenya National Assembly constitute a breach
of article 50 of the Treaty and is (sic) therefore void;
(3) to declare that the process of election, selection and/or nomination of members to the EALA by the
Republic of Kenya is null and void;
(4) to declare that the fifth and sixth respondents have no mandate to determine persons to represent
the Republic of Kenya at the EALA;
(5) to restrain and prohibit the third and fourth respondents from assembling, convening, recognising,
administering oath of office or otherwise presiding over or participating in election of the Speaker
or issuing any notification in recognition of the following persons: Messrs Clerkson Otieno Karan,
Safina Kwekwe Sungu, Gervase Akhaabi, Christopher Nakuleu, Sarah Godana, Abdi Rahman
Haji, Reuben Oyondi, Catherine Ngima Kimura and Augustine Chemonges Lotodo as nominated
representatives of the Republic of Kenya to the EALA;
(6) to direct the Republic of Kenya through the first and second respondents [to] repeat its nomination
and election process in compliance with article 50 of the Treaty within reasonable time as the
Court may direct;
(7) to extend time within which the Republic of Kenya will transmit names of duly elected members to
the third and fourth respondents for purposes of being sworn in as members of the EALA;
(8) to make such further or other orders as may be necessary in the circumstances.
The reference was filed on 9 November 2006 along with an ex parte application by notice of motion for
interim orders, inter alia, that pending the hearing and determination of the motion and of the reference
this Court be pleased:
“to restrain and prohibit the third and fourth respondents from assembling, convening, recognising,
administering oath of office or otherwise howsoever presiding over or participating in election of the Speaker
or issuing any notification in recognition of any names of persons as duly nominated representatives of the
Republic of Kenya to the EALA.”

When the notice of motion came up for hearing ex parte on 17 November 2006, we considered that
notwithstanding its urgency, its import warranted giving the respondents opportunity to be heard.
Accordingly we ordered that the respondents be served so that the motion is heard inter partes on 24
November 2006. The respondents were duly served and on the fixed day, the first respondent appeared in
person and the rest by counsel.
Prior to the hearing the first, second, fifth and sixth respondents gave notice that they would raise as a
preliminary objection, this Court’s lack of jurisdiction to hear and determine the reference and to grant
the restraining orders prayed for. In addition the second, fifth and sixth respondents objected to their
being joined as parties to the suit. In view of the urgency of the application for the
Page 8 of [2007] 1 EA 5 (EACJ)

interim order, the primacy of the objection to the court’s jurisdiction and the need to determine early who
are the rightful parties to a suit, and because of constraint of time, the Court directed at the
commencement of the hearing that the three issues be argued together so that the decision on them may
be given in one ruling.

Jurisdiction
The contention that this Court lacks jurisdiction to determine the reference was premised on an argument,
articulated variously by the respective counsel for the respondents, that in substance the reference was
brought to challenge the election of Kenya’s nine representatives to the EALA. It was stressed that “the
Treaty for the Establishment of the East African Community Election of Members of the Assembly)
Rules 2001” (the Election Rules) under which the nine representatives were elected were the same under
which the outgoing representatives were elected, and that applicants had fully participated in the election
process under the same rules without protesting their illegality. It was only after the applicants’
candidates failed to be elected that the reference was brought under the guise of seeking interpretation of
the Treaty when the real purpose was to challenge the outcome of the election.
In his submissions, the learned Attorney-General stressed that the initial jurisdiction vested in this
Court under clause (1) of article 27 of the Treaty is very restricted, and that the Court should not assume
jurisdiction that is not yet vested in it or jurisdiction that is vested elsewhere. He maintained that
jurisdiction over the interpretation and application of the Treaty does not extend to determining questions
arising from elections of members of the EALA. He pointed out that in article 52(1) the Treaty expressly
reserves the jurisdiction to determine such questions to the appropriate institutions of the Partner States.
Mr Wekesa, learned counsel for the sixth respondent, sought to crystallise the argument. He submitted
that under the Court’s jurisdiction vested by article 27(1) of the Treaty, the Court was competent to
consider and determine whether the Election Rules under which the National Assembly of Kenya
proceeded in electing the nine representatives infringed article 50 of the Treaty, but it was not competent
to determine if elections carried out under those rules were lawful because by virtue of article 52(1) that
was the preserve of the pertinent national institution, namely the High Court of Kenya. Learned counsel
invited the Court to decline to entertain the feigned reference for interpretation, which in his view was
tantamount to abuse of court process.
It is common ground that by virtue of article 27(1) of the Treaty, this Court has jurisdiction over the
interpretation and application of the Treaty. Under article 30, of the Treaty, the Court is empowered to
exercise that jurisdiction by determining the legality of any Act, regulation, directive, decision or action
of a Partner State or an institution of the Community referred to it on the ground that it is unlawful or it
infringes provisions of the Treaty. Article 27(1) provides:
“The Court shall initially have jurisdiction over the interpretation and application of this Treaty.”

And article 30 provides:

“Subject to the provisions of article 27 of this Treaty, any person who is resident in a Partner State may refer
for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner
State or an institution of the community on the grounds that such Act, regulation, directive, decision or action
is unlawful or is an infringement of the provisions of this Treaty.”
Page 9 of [2007] 1 EA 5 (EACJ)

It cannot be gainsaid that in the reference the Court is called upon to determine if the process by which
the Kenya’s representatives to the EALA were nominated and the Election Rules under which it was
undertaken are unlawful or an infringement of article 50 of the Treaty on Election of Members of the
Assembly. The article provides in clause (1):
“The National Assembly of each Partner State shall elect, not from among its members, nine members of the
Assembly, who shall represent as much as it is feasible, the various political parties represented in the
National Assembly, shades of opinion, gender and other interest groups in that Partner State, in accordance
with such procedure as the National Assembly of each Partner State may determine.”

The applicants maintain that what transpired was not an election, and the Election Rules used did not
conform to the procedure as envisaged under the said provision. On the face of it therefore, in order to
determine the reference the Court has to decide what the expression “each Partner State shall elect”
means and whether what transpired fits or does not fit within that meaning. We are satisfied that this is
an issue that falls within the jurisdiction of this Court.

Wrongly joined parties

The objections to being joined raised by the second, fifth and sixth respondents were virtually on the
same ground, namely that by virtue of the provisions of article 30 of the Treaty they were wrongly
enjoined to the reference and the motion. They maintained that under that article, only an Act, regulation,
directive decision or action of a Partner State or an institution of the Community may be referred to this
Court. Although they were joined in their respective official capacities, they did not come within the
ambit of article 30 of the Treaty. The second respondent was sued as Clerk to the National Assembly of
Kenya. The fifth respondent, who is the Vice-President of Kenya, was sued as Leader of Government
Business in the National Assembly. The sixth respondent was sued as Chairman of NARC-Kenya, a
political party. The reason for joining the three respondents is disclosed in paragraph 33 of the reference
where the applicants aver that the three “colluded and connived in the violation of law as they usurped
the authority of the Party Leader of the Ruling Party NARC and collectively robbed Kenyans of the
opportunity to decide by democratic means their representatives to the EALA.”
Mr Mutala Kilonzo, learned counsel for the applicants, strenuously argued that since the natural
person has the capacity to sue in this Court, the natural person must have the capacity to be sued in the
same Court under the Treaty. He urged the court to give to article 30 an interpretation that would bring
natural persons who commit misfeasance that infringe on provisions of the Treaty within the ambit of
article 30, to account for their actions.
With due respect to counsel for the applicants, it appears to us that enjoining the second, fifth and
sixth respondents to the reference was under a misconception. A reference under article 30 of the Treaty
should not be construed as an action in tort brought by a person injured by or through the misfeasance of
another. It is an action to challenge the legality under the Treaty of an activity of a Partner State or of an
institution of the Community. The alleged collusion and connivance, if any, is not actionable under
article 30 of the Treaty.
We think there is merit in the objections. The matters referred to this Court, whose legality it has to
determine relate to the responsibility of the Republic of Kenya as a Partner State, acting by its National
Assembly under article 50 of the
Page 10 of [2007] 1 EA 5 (EACJ)

Treaty, to elect nine members of the EALA. Both the process of selecting the nine members whose
names have been remitted to the third respondent and the Election Rules under which they were elected
or selected were done by the Republic of Kenya through its National Assembly. It is for that reason that
the Attorney-General of Kenya was rightly made the first respondent.
We are satisfied that the second, fifth and sixth respondents were wrongly joined to the reference and
we order that they be struck off with costs.

Interim injunction
The clear purpose of the application for the grant of an interim injunction is to prevent the nine persons
elected by the National Assembly of Kenya taking office as Members of the EALA until this Court
determines whether or not the process of their election was unlawful or an infringement of the Treaty.
The applicants contend that if the injunction is not granted there would be an irreparable damage because
after taking office as Members of the EALA there is no legal means for removing them even if this Court
subsequently determines under the reference that the process of electing them was not lawful.
It is not in dispute that in absence of any restraining order, the said nine persons will be sworn-in
along with the Members elected by the National Assemblies of Tanzania and Uganda. The third and
fourth respondents have confirmed in their respective affidavits that the commencement of the second
EALA will be effected on 29 November 2006 and that all the elected Members will be facilitated to take
the oath of office on that day.
The contentious issue is what would happen if they assumed office and subsequently this Court
determined in the reference that the process of their election and the election rules used therein were an
infringement of article 50 of the Treaty. The learned Attorney-General and both Mr Macharia and Mr
Nyaoga the learned counsel for the second and fifth respondents respectively, contended that the
applicants armed with a declaration of this Court that the process and the rules were unlawful or an
infringement of the Treaty would be able by virtue of the provisions of article 52 to move the High Court
of Kenya to annul the elections. However, the learned counsel for the sixth respondent appeared to
canvass a different view more akin to that of counsel for the applicants. He submitted that such a
declaration would have no consequence on the election that has already been carried out under the
Election Rules that were competently and lawfully made under article 50 of the Treaty by the National
Assembly of Kenya. He opined that the declaration would be applied to the making of future procedure
for the election of Members of the EALA.
We are constrained to state at the outset that the enormity of this application cannot be
over-emphasised. The subject matter of the restraining order prayed for is the EALA, a very important
organ of the Community. The implications of declining to grant the order and of granting it are grave. In
an affidavit in support of the application, Fidellis Mueke Ngulli deponed that if the order is not granted
not only the applicants will suffer irreparably but also “the legitimacy of [the] EALA [will be] greatly
imperilled by the unelected and irregularly wounded (sic) members from Kenya”. On the other hand, in
their respective affidavits opposing the application, both the third and fourth respondents deponed that
“the EALA in particular, and the East African Community in general stands to suffer great hardship if an
injunction against the swearing in of the Members of the EALA is issued”.
Page 11 of [2007] 1 EA 5 (EACJ)

It is trite law within the jurisdictions of the three Partner States in the East African Community, that
an applicant who seeks an interim injunction must show a prima facie case with a probability of success.
Secondly, a court will not normally grant an interim order unless it is shown that if the order is not made
the applicant is likely to suffer irreparable damage or injury.
We have read the pleadings and documentary annexures so far filed in Court in the reference and in
the motion. We also benefited tremendously from the very able submissions by all learned counsel who
addressed us. We are satisfied that the applicants have shown that they have a prima facie case with a
probability of success. This of course is subject to what pleadings the respondents will bring in response
to the reference. For obvious reasons, at this stage we would wish to refrain from discussing the merits of
the case in any detail. The finding that there is a prima facie case with a probability of success is to say
no more than that if the respondents do not put up any probable defence or response the applicants would
succeed.
We also think that the second criterion for the grant of an interim injunction is satisfied. It is apparent
that in the present state of the law, the hearing and determination of the reference after the affected
persons have taken office might not assist to prevent the alleged illegality being perpetuated. We are
satisfied that not only the applicants but also the EALA and the Community itself stand to suffer
irreparable damage if it turns out that one third of the Members of the EALA were not legally elected.
The fact that the outgoing Kenyan Members were elected in a similar manner in 2001, should not be a
source of solace but rather should be a reason to determine soon if the process is illegal and ought to be
rectified.
Accordingly, we hereby grant an interim injunction restraining the third and fourth respondents from
recognising the following persons as duly elected Members of the EALA or permitting them to
participate in any function of the EALA until the final determination of the reference, namely:
(1) Clerkson Otieno Karan,
(2) Safina Kwekwe Sungu,
(3) Gervase Akhaabi,
(4) Christopher Nakuleu,
(5) Sarah Godana,
(6) Abdi Rahman Haji,
(7) Reuben Oyondi,
(8) Catherine Ngima Kimura, and
(9) Augustine Chemonges Lotodo.
In this ruling we have given our full decisions on the three issues raised in this application. We shall,
however, give our detailed reasons for the same later.
The costs of the application shall be in the cause.
For the applicants:
Mr Mutula Kilonzo
For the sixth respondent:
Mr Wekesa
For the second and fifth respondents:
Mr Macharia and Mr Nyaoga

Attorney-General v Anyang’ Nyong’o and others

[2007] 1 EA 12 (EACJ)

Division: East African Court of Justice at Arusha

Date of ruling: 6 February 2007
Case Number: 5/07
Before: Ole Keiwua P, Mulenga VP, Ramadhani, Mulwa and Nsekela JJ
Sourced by: LawAfrica
Summarised by: E Ongoya

[1] Bias – Disqualification of judicial officer – Applicable principle – Procedure for making the
application.

Editor’s Summary
The Attorney-General of Kenya, who was the first respondent in East African Court of Justice Reference
number one of 2006, brought an application by notice of motion dated 19 January 2007 and filed on 22
January 2007. The application was stated to be made under articles 23, 26, 27 and 35 of the East African
Community Treaty and rules 17 and 70 of the East African Court of Justice Rules of Procedure (the
Court Rules), praying for Orders that the application be certified urgent; the Honourable Justice Moijo
Ole Keiwua, President of the Court and Honourable Justice Kasanga Mulwa, Judge of the Court,
disqualify themselves from further hearing of the reference and applications therein; the Court sets aside
its ruling delivered on 27 November 2006; and the costs of the application be provided for.
The application was based on the grounds that Justice Moijo Ole Keiwua and Kasanga Mulwa failed
to disclose to the parties a material fact, namely, the fact that they were related to the Republic of Kenya
in a manner which rendered it impossible for them to give a fair hearing to the first respondent since on
15 October 2003 Justice Moijo Ole Keiwua was suspended from the performance of his functions of a
Judge of Appeal in the Republic of Kenya and a tribunal to investigate his conduct as such was
appointed; and, on 15 October 2003 Justice Kasanga Mulwa was suspended from the performance of his
functions of a Puisne Judge in the Republic of Kenya and a tribunal to investigate his conduct as such
was appointed.
Held – As members of the court, the Judges, individually and collectively, must be in the forefront in
ensuring the maintenance of public confidence in the Court. They however must not lightly accede to
veiled intimidation in form of unsubstantiated allegation that they or any of them has undermined public
confidence in the court. The court has jurisdiction to hear and determine an application to set aside its
order on the ground that it was made in breach of the fundamental principle of judicial impartiality Only
through strict adherence to the principle of judicial impartiality can protection of the universally accepted
right of every litigant to a fair trial, be enforced.
Apart from inherent jurisdiction at common law, in appropriate circumstances, this Court can invoke
its jurisdiction under article 35 of the Treaty to review its order as unjust if the order was made in
violation of the principle of judicial impartiality.
In an application for a Judge to recuse himself from sitting on a Coram, as from sitting as a single Judge,
the procedure practiced in the East African Partner States, and which this Court would encourage
litigants before it to
Page 13 of [2007] 1 EA 12 (EACJ)

follow, is that counsel for the applicant seeks a meeting in chambers with the Judge or Judges in the
presence of [the] opponent. The grounds for recusal are put to the Judge who would be given an
opportunity, if sought, to respond to them. In the event of recusal being refused by the Judge, the
applicant would, if so advised, move the application in open court. The President of the Republic and
others v South African Rugby Football Union and others 1999 (7) BCLR 725 (CC) (the SA Rugby
Football Union case) followed.
The rationale for and benefit from that procedure is obvious, namely, apart from anything else, in
practical terms it helps the litigant to avoid rushing to court at the risk of maligning the integrity of the
Judge or Judges and of the court as a whole, without having the full facts. Where a recusal application
comes before a court constituted by several Judges, it appears to us that, subject to the Judge whose
recusal is sought giving his individual decision on the matter, all the Judges constituting the Coram for
the case have collective duty to determine if there is sufficient ground for the Judge to recuse himself
from further participation in the case.
Judicial impartiality is the bedrock of every civilised and democratic judicial system. The system
requires a Judge to adjudicate disputes before him impartially, without bias in favour of or against any
party to the dispute. There are two modes in which the courts guard and enforce impartiality. First, a
judge, either on his own motion or on application by a party, will recuse himself from hearing a cause
before him, if there are circumstances that are likely to undermine, or that appear to be likely to
undermine his impartiality in determining the cause. Secondly, through appellate or review jurisdiction, a
court will nullify a judicial decision if it is established that the decision was arrived at without strict
adherence to the established principles that ensure judicial impartiality. The first is that “a man ought not
to be a Judge in his own cause”. The second, which additionally is intended to preserve public
confidence in the judicial process, is that “justice must not only be done but must be seen to be done”.
Automatic disqualification applies not only where the Judge is directly or indirectly a party or has
financial or proprietary interest in the suit, but also where he has some other interest in the outcome of
the suit. In a case where an automatically disqualified Judge does not recuse himself, the decision or
order he makes or participates in, will be set aside, notwithstanding that he did not act with bias.
Where the Judge is not a party and does not have a relevant interest in the subject matter or outcome
of the suit, a Judge is only disqualified if there is likelihood or apprehension of bias arising from such
circumstances as relationship with one party or preconceived views on the subject matter in dispute. The
disqualification is not presumed like in the case of automatic disqualification. The applicant must
establish that bias is not a mere figment of his imagination.
The objective test of “reasonable apprehension of bias” is good law. The test is stated variously, but
amounts to this: do the circumstances give rise to a reasonable apprehension, in the view of a reasonable,
fair-minded and informed member of the public that the Judge did not (will not) apply his mind to the
case impartially. Needless to say, a litigant who seeks disqualification of a Judge comes to court because
of his own perception that there is appearance of
Page 14 of [2007] 1 EA 12 (EACJ)
bias on the part of the judge. The court, however, has to envisage what would be the perception of a
member of the public who is not only reasonable but also fair-minded and informed about all the
circumstances of the case would be.
A judicial officer is required to disclose facts that may raise apprehension of possible bias on his part,
in order to show that he has no actual bias and to give opportunity to a party who considers that he might
be prejudiced, to exercise the right to apply for the Judge to recuse himself or to waive that right. The
disclosure is not a precondition for the application to be made. A litigant who has knowledge of such
facts is at liberty to make the application even in absence of their disclosure by the judge. It follows that
an applicant who relies on the judge’s failure to disclose material facts must show that those facts were
not within his or his legal advisor’s knowledge.
Failure of a Judge to disclose facts that are within public knowledge cannot be a ground on which a
reasonable member of public would apprehend bias. The suspension of Justice Moijo Ole Keiwua and
the appointment of a tribunal to investigate his conduct, have been matters of public knowledge since
they were published in the Kenya Gazette of 15 October 2003, not to mention publications in mass
media.
Besides, both the appointment of the tribunal and the suspension of the Judge were acts done by the
Government of Kenya to which the applicant is the principal legal advisor. It is reasonable to assume that
he was consulted on those matters. In any case it was not suggested that the facts were not in his
knowledge.
A party to any judicial proceedings has a right to object to any Judge or judicial officer sitting if he or
she has good reason for raising such objection. However, whoever intends to raise such objection is
obliged to raise his objection at the earliest opportunity. Ole Keiwua v Chief Justice of Kenya and others
[2006] KLR followed.
A reasonable person would not perceive that a Judge whose conduct is under investigation, would risk
conducting an unfair adjudication against the very authority investigating his conduct. A reasonable and
informed person, knowing that the Judge sits in a panel of five Judges, trained and sworn to administer
justice impartially, would not perceive that the Judge would skim to single handedly deny the applicant a
fair hearing or justice. A reasonable, informed and fair-minded member of the public, appreciating the
subject matter and nature of the reference, would credit the Judge with sufficient intelligence not to
indulge in futile animosity.
While litigants have the right to apply for the recusal of judicial officers where there is a reasonable
apprehension that they will not decide a case impartially, this does not give them the right to object to
their cases being heard by particular judicial officers merely because they believe that such persons will
be less likely to decide the case in their favour. The nature of the judicial function involves the
performance of difficult and at times unpleasant tasks. Judicial officers are nonetheless required to
“administer justice to all persons alike without fear, favour or prejudice in accordance with the
Constitution and the law.” To this end they must resist all manner of pressure, regardless of where it
comes from. This is the constitutional duty common to all judicial officers. If they deviate, the
independence of the judiciary would be undermined and in turn the Constitution itself.
Application dismissed with costs.
Page 15 of [2007] 1 EA 12 (EACJ)
Cases referred to in ruling
(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
King Woollen Mills Limited and another v Standard Chartered Financial and another civil application
number 102 of 1994
Ole Keiwua v Chief Justice of Kenya and others [2006] KLR – F

United Kingdom
Locabail (UK) Limited v Bayfield Properties Limited and another [2000] QB 451
R v Bow Street Metropolitan Stipendiary Magistrate and others ex parte Pinochet Ugarte number 2
[1999] 1 All ER 577

South Africa
The President of the Republic and others v South African Rugby Football Union and others 1999 (7)
BCLR 725 (CC) – F

Ruling
Ole Keiwua P, Mulenga VP, Ramadhani, Mulwa and Nsekela JJ: This is an interlocutory application
emanating from a reference pending in this Court, in which the respondents herein pray, inter alia, for
orders by way of declarations that the process of “electing” the nine members of the East African
Legislative Assembly (the EALA) to represent the Republic of Kenya and the rules under which the
process was undertaken, violated the provisions of article 50 of the Treaty for the Establishment of the
East African Community (the Treaty). The Attorney-General of Kenya, who is the first respondent in the
reference, brings this application by notice of motion dated 19 January 2007 and filed on 22 January
2007. The application is stated to be made under articles 23, 26, 27 and 35 of the Treaty and rules 17 and
70 of the East African Court of Justice Rules of Procedure (the Court Rules), praying for Orders:
(1) That the application be certified urgent;
(2) That Honourable Justice Moijo Ole Keiwua, President of this Court and Honourable Justice
Kasanga Mulwa, Judge of this Court, disqualify themselves from further hearing of the reference
and applications therein;
(3) That the Court sets aside its ruling delivered on 27 November 2006; and
(4) That the costs of the application be provided for.
Although, as we shall indicate later in this ruling, the applicant belatedly and informally made substantial
alterations to the application in the course of submissions by counsel, it is necessary to first set out the
prayers and the grounds of the application as pleaded for proper appreciation of the full context. The
motion lists 19 statements expressed to be the grounds on which the applications therein are made. We
hereunder reproduce them in slightly abridged form, namely that:
Page 16 of [2007] 1 EA 12 (EACJ)

(a) a Judge who is involved, whether personally or jointly with any party to a suit, in promoting a joint
cause through that suit, is automatically disqualified from hearing that suit;
(b) judges of the EACJ are mandated to be impartial – (article 24)
(c) a ruling or judgment by an automatically disqualified Judge who failed to disqualify himself at or
before the hearing is null and void and will be set aside by the court on application by the
aggrieved person;
(d) an aggrieved party is entitled to apply for an order that an automatically disqualified Judge who
fails to disqualify himself does disqualify himself;
(e) failure of Justice Moijo Ole Keiwua and Justice Kasanga Mulwa to disclose their interests and
disqualify themselves has adversely affected the integrity of the Court and undermined the
confidence of East Africans in the Court;
(f) the Partner States are aggrieved by the immense consequences of the ruling delivered on 27
November 2006 and in view thereof agreed to urgently convene a Special Summit;
(g) on 15 October 2003 Justice Moijo Ole Keiwua was suspended from the performance of his
functions of a Judge of Appeal and a tribunal to investigate his conduct as such was appointed;
(h) the tribunal was to investigate allegations that Justice Moijo Ole Keiwua was involved in
corruption, unethical practice, and absence of integrity in the performance of his office;
(i) Justice Moijo Ole Keiwua and Kasanga Mulwa failed to disclose to the parties a material fact,
namely, the fact that they were related to the Republic of Kenya in a manner which rendered it
impossible for them to give a fair hearing to the first respondent herein;
(j) on 15 October 2003 Justice Kasanga Mulwa was suspended from the performance of his functions
of a Judge of Appeal (sic) and a tribunal to investigate his conduct as such was appointed;
(k) the tribunal was to investigate the allegations that Kasanga Mulwa was involved in corruption,
unethical practice, and absence of integrity in the performance of his office;
(l) the conduct of Justice Moijo Ole Keiwua and Justice Kasanga Mulwa, by failing to disclose those
facts to the parties, has undermined and eroded the confidence of the people of East Africa in this
Court;
(m) through the Summit and other organs of the Community the people of East Africa have set in
motion necessary measures to restore public confidence in this Court;
(n) by virtue of the rule in R v Bow Street Metropolitan Stipendiary Magistrate and others ex parte
Pinochet Ugarte, number 2 [1999] 1 All ER 577, (the Pinochet case) the two Judges were on 24
November 2006 and still are automatically disqualified from hearing this reference;
(o) by virtue of the Treaty and the common law, the two Judges were under a duty to disclose their
interests on 24 November 2006 but failed to do so;
(p) justice was neither done nor seen by people of East Africa to have been done on 24 November
2006;
Page 17 of [2007] 1 EA 12 (EACJ)

(q) if Justice Moijo Ole Keiwua and Justice Kasanga Mulwa hear the reference and other applications
herein, justice even if done, will not be seen to be done by the people of East Africa;
(r) this Court has jurisdiction to set aside the ruling delivered on 27 November 2006;
(s) the ruling was given pursuant to proceedings that violated both the rules of natural justice and
provisions of the Treaty.
Needless to say, that while some of the statements constitute the grounds on which the motion is based,
others are a mixture of the propositions of law, assertions of fact and arguments in support of the
grounds. It is also important to note at the outset, that the motion contains two distinct, though related,
applications. The first is that the named Judges of the Court disqualify themselves from further hearing
of the reference and applications therein. The other is that the Court sets aside its ruling delivered on 27
November 2006.
For clarity, it is useful to separate the grounds for each application although there is bound to be some
overlapping. The grounds for the application that the two Judges disqualify themselves from further
hearing of the reference and related applications may be discerned from the statements listed as g, h, i, j,
k, n and q. In summary they are that as a result of being suspended from performance of their functions as
a Judge of Appeal and a Puisne Judge in the Republic of Kenya, respectively:
(a) the two Judges are related to the Republic of Kenya in a manner that renders it impossible for them
to give a fair hearing to the Attorney-General of Kenya as the first respondent in the reference;
(b) the two Judges are automatically disqualified from hearing the reference by virtue of the rule in
Pinochet’s case (supra);
(c) justice will not be seen to be done if the two Judges hear the reference.
The grounds for the application that the Court’s ruling delivered on 27 November 2006, be set aside are
discernable from the statements listed as c, f, i, l, n, o, p and s. Although in the course of arguing the
application, counsel for the Attorney-General appears to have made some variations in the grounds, he
did not amend the motion and so it is necessary to refer to them as pleaded. We would summarise them
as follows:
(a) the Partner States are aggrieved by the immense consequences of the ruling;
(b) Justice Moijo Ole Keiwua and Justice Kasanga Mulwa were automatically disqualified from
hearing the reference and applications therein and failure to disqualify themselves rendered the
ruling null and void;
(c) failure of the two Judges to disclose to the parties their interests/material fact that they were
suspended from judicial functions in the Republic of Kenya, and to disqualify themselves from
participating in the proceedings on 24 November 2006 was in breach of their duty under the Treaty
and the common law, to be and appear to be impartial;
(d) the conduct of the two Judges in failing to disclose their said suspension undermined and eroded
the confidence of the people of East Africa in the Court;
Page 18 of [2007] 1 EA 12 (EACJ)

(e) the proceedings that resulted in the ruling of the Court in issue violated both the rules of natural
justice and provisions of the Treaty.

Background to this application

The Treaty establishes the EALA as one of its organs and provides in article 50 that the National
Assembly of each Partner State shall elect nine members of that organ. Pursuant to Proclamations dated
16 November 2006, the Summit of the East African Community dissolved the first EALA with effect
from 29 November 2006, and proclaimed that the second EALA was to commence on the same date.
By a letter dated 30 October 2006, the Clerk to the National Assembly of the Republic of Kenya
informed the Secretary to the East African Community, that on 26 October 2006 the National Assembly
of Kenya had elected nine members of the EALA whose names he listed in the letter.
On 9 November 2006, the respondents in this application filed the reference making the prayers we
indicated above. At the same time they filed an ex parte application for an interim injunction for the
purpose of stopping the nine representatives from Kenya taking office as members of the EALA, until
determination of the reference. When the ex parte application came up for hearing on 17 November
2006, the Court directed that it ought to be heard inter partes and fixed 24 November 2006 for the
hearing.
The application was heard by a full bench (Ole Keiwua P, Mulenga VP, Ramadhani J, Mulwa J and
Warioba J) on 24 and 25 November 2006. Mr Mutula Kilonzo SC, led a team of counsel for the
claimants. The Attorney-General of Kenya, Mr Amos Wako, appeared in person assisted by the
Solicitor-General, the Principal Litigation counsel and a Senior State counsel. The other respondents to
the reference were also represented by counsel. The unanimous ruling of the Court, granting the interim
injunction, was delivered on 27 November 2006.
After delivering the ruling, the Court invited the parties, in view of the serious implications the
interim injunction was to have on the functioning of the EALA, to consider expediting the conclusion of
outstanding pleadings, in order that the reference may be heard and disposed of at the earliest time
possible. In response, all counsel agreed to abridge the time allowed by the rules for filing their
respective pleadings. At a meeting between the President and Registrar of the Court with the counsel of
all parties in the President’s chambers, the Attorney-General undertook to file the response to the
reference not later than 30 December 2006, and counsel to the Community representing the third and
fourth respondents, (the only other two respondents remaining in the reference after the Court struck out
the rest in the ruling), undertook to file his amended response to the reference not later than 18 December
2006. Counsel for the claimants undertook to file the reply, if any, not later than 8 January 2007. The
respondents’ rejoinder, if any, was to be filed by 15 January 2007. Accordingly, pursuant to provisions of
rule 52 of the Court Rules, the scheduling conference was fixed for 22 January 2007.
However, on 22 January 2007, just before the Court was due to start the scheduling conference, the
most unexpected happened. Kenya’s Solicitor-General, Mr Wanjuki Muchemi, in the company of his
Deputy, Ms Muthoni Kimani and Dr Gibson Kamau Kuria SC, called on the President of the court
Page 19 of [2007] 1 EA 12 (EACJ)

in his chambers to inform him that unless he and Justice Kasanga Mulwa disqualified themselves from
further hearing of the reference, he had instructions to file this application. He handed to him copy of the
notice of motion duly signed and dated 19 January 2007 with the supporting affidavit sworn by
Ambassador Dr Hukka Wario, on the same date.
The President consulted the other members of the court present. Needless to say, the Judges were all
extremely surprised by the move, considering that no indication whatsoever had been given prior to that
day that the Attorney-General of Kenya had any apprehension about the two Judges being on the Coram
for hearing the reference, a fact he knew before the 24 November 2006; and notwithstanding that the
facts on which he based the application for recusal were within his knowledge years before the reference
was filed in this Court. The move was incredibly inconsistent with the assurances the Attorney-General
Mr Amos Wako made in open court personally on 24 November 2006 when he said:
“My Lords, if you should come to the unlikely conclusion that you have jurisdiction ...even if we shall be
thoroughly dissatisfied with the decision, we shall have no alternative but to comply in terms of article 38.”

We shall revert to this later in this ruling. Be that as it may, thereafter the Judges went to court to
appraise other parties of the new development and to adjourn the scheduling conference until disposal of
the new application, which was then fixed for hearing on 30 January 2007, allowing time for service of
the application on the other parties and for them to respond if they so wished.

The issues for determination

It is with this background that this application came up for hearing. In his opening address, the learned
Solicitor-General Mr Wanjuki Muchemi outlined the issues arising from the pleadings to be addressed
and determined by the Court. However, in the course of his submissions, Dr Kamau Kuria SC, who
addressed us on the rest of the case for the Attorney-General, abandoned such substantial assertions on
which the applicant’s case was founded, that it is necessary at this juncture, to appreciate what remained
of the case.
First, in the course of his main submissions the learned Senior counsel abandoned the express
pleading to the effect that by virtue of the rule in Pinochet’s case (supra) the two Judges were
“automatically disqualified” from hearing the reference, and that failure to disclose their interests and to
recuse themselves from the proceedings, violated the rules of natural justice and provisions of the Treaty,
thus rendering the resultant ruling null and void. He also submitted that he was not relying on actual bias
on the part of the Judges. He maintained instead, that the application should be considered on the premise
of a perception that the Judges may be biased as a result of their relationship of “animosity” towards the
Government of Kenya.
Secondly, in the course of his submissions in reply on the second day, the court asked the learned
Senior counsel to elaborate on and substantiate his repeated submission that the people of East Africa
had lost confidence in this Court as a result of the failure of the two Judges to recuse themselves; or if
necessary to avail for examination Dr Wario, in whose affidavit that contention was made. Counsel asked
and was given ten minutes to consult with his legal team. After the consultation he withdrew his
submissions on the contention
Page 20 of [2007] 1 EA 12 (EACJ)

that the East Africans had lost confidence in this Court. For what it is worth, he withdrew all the
averments and arguments related to it and specifically withdrew the contents of paragraphs 16 and 17 of
Dr Wario’s affidavit which directly alluded to the contention.
However, the learned Senior counsel, quite rightly in our view, observed that statements concerning
the events that followed the Court’s ruling delivered on 27 November 2006, namely the hurried process
of amendments to the Treaty in reaction to the ruling, could not be withdrawn as they were indisputable
facts of history that cannot be undone. That of course is obvious. What we found unacceptable was for
the applicant to allege without substantiation, that the hurried process was necessitated by the loss of
public confidence in the Court. As members of the Court, the Judges, individually and collectively, must
be in the forefront in ensuring the maintenance of public confidence in the Court. They however must not
lightly accede to veiled intimidation in form of unsubstantiated allegation that they or any of them has
undermined public confidence in the Court.
Thirdly, towards the conclusion of his submissions the learned Senior counsel conceded that it was an
error to include Justice Kasanga Mulwa in the application. This was in consequence of the Court drawing
his attention to two documents. The first document is copy of the Kenya Gazette dated 22 March 2004, in
which under Gazette Notices numbers 2128 and 2129, His Excellency Mwai Kibaki, President and
Commander-in-Chief of the Armed Forces of the Republic of Kenya amended Gazette Notices numbers
8829 of 2003 and 378 of 2004 by deleting the name of Justice Kasanga Mulwa from the list of Puisne
Judges whose conduct was to be investigated by a Tribunal. The second is a letter from Office of the
President dated 26 March 2004 and addressed to Justice Kasanga Mulwa through the Honourable Chief
Justice Evans Gicheru. In the letter, Ambassador Francis K Muthaura, MBS, Permanent
Secretary/Secretary to the Cabinet and Head of the Public Service wrote that His Excellency the
President had considered and accepted the request of Justice Kasanga Mulwa to retire early from the
Judicial Service with benefits in accordance with his terms of service. He further wrote:
“Meanwhile, I wish to thank you on behalf of the Government for the services you rendered to the Judicial
Services and wish you a prosperous time with the East African Court of Justice.”[Emphasis mine.]

When asked what the applicant’s position was in regard to the application against Justice Kasanga
Mulwa, the learned Senior counsel retorted:
“My Lords, I did say that when the application was made, this letter was not available. So, any counsel
preparing an application with this letter would conclude that it would be wrong to include Honourable Justice
Mulwa in the application. I also wish to apologise for the inclusion of Justice Mulwa in the application in
light of this.”

In response to a further question Dr Kuria confirmed that he was withdrawing the application against
Justice Mulwa.
Later, in his winding-up remarks, Mr Wanjuki Muchemi, the learned Solicitor-General, on behalf of
the Attorney-General, expressly associated himself with the withdrawals and apology Dr Kuria had
made.
What then remains of the application is that the ruling of the Court be set aside by reason of Justice
Moijo Ole Keiwua’s participation in it and that the said Judge disqualifies himself from further
participation by reason of perceived
Page 21 of [2007] 1 EA 12 (EACJ)

bias. Consequently, the broad issues that remain for the Court to consider and determine are:
(1) whether Justice Moijo Ole Keiwua was under duty to make the disclosure as contended by the
applicant;
(2) whether Justice Moijo Ole Keiwua was under duty to recuse himself from participating in the
hearing of the application for the interim injunction on the ground of perceived bias;
(3) whether the ruling of this Court granting the interim injunction is null and void by reason of the
failure of Justice Moijo Ole Keiwua to make any disclosure and/or to recuse himself from
participating in the proceedings.

The applicable law

(a) Jurisdiction
It was not seriously disputed that this Court has jurisdiction to hear and determine an application to set
aside its order on the ground that it was made in breach of the fundamental principle of judicial
impartiality. Although Dr Kuria repeatedly pointed out that the practice in the Court of Appeal of Kenya
and in the House of Lords in the UK, whenever there is such an application, was to empanel a different
set of Judges from those who made the impugned order, he did not go so far as to suggest that this Court
as constituted did not have jurisdiction. Even Mr Otiende Amollo, learned counsel for the
respondents/claimants who broached on the subject of the court being functus officio, turned his
argument on whether the application was properly brought within the review jurisdiction. We therefore
need not discuss the issue of jurisdiction in any detail. It suffices to say that only through strict adherence
to the principle of judicial impartiality can protection of the universally accepted right of every litigant to
a fair trial, be enforced. We think that apart from inherent jurisdiction at common law, in appropriate
circumstances, this Court can invoke its jurisdiction under article 35 of the Treaty to review its order as
unjust if the order was made in violation of the principle.
With regard to an application for a Judge to recuse himself from sitting on a Coram, as from sitting as
a single Judge, the procedure practised in the East African Partner States, and which this Court would
encourage litigants before it to follow, is similar to what was succinctly described by the Constitutional
Court of South Africa in The President of the Republic and others v South African Rugby Football Union
and others 1999 (7) BCLR 725 (CC) (the SA Rugby Football Union case). That court said at paragraph
50 of its judgment:
“…The usual procedure in applications for recusal is that counsel for the applicant seeks a meeting in
chambers with the Judge or Judges in the presence of [the] opponent. The grounds for recusal are put to the
Judge who would be given an opportunity, if sought, to respond to them. In the event of recusal being refused
by the Judge the applicant would, if so advised, move the application in open court.”[Emphasis mine.]

The rationale for and benefit from that procedure is obvious. Apart from any thing else, in practical terms
it helps the litigant to avoid rushing to court at the risk of maligning the integrity of the Judge or Judges
and of the court as a whole, without having the full facts, as clearly transpired in the instant case.
In our view, the Solicitor-General’s call on the President in the morning of 22 January 2007, fell far
short of the accepted practice for it was more akin to
Page 22 of [2007] 1 EA 12 (EACJ)

intimidation than to an effort to discover the Judge’s response to the alleged apprehension concerning his
impartiality. We are further strengthened in this view by the fact that no similar visit was extended to
Justice Kasanga Mulwa though he was also subject of the same recusal application.
Where a recusal application comes before a court constituted by several Judges, it appears to us that,
subject to the Judge whose recusal is sought giving his individual decision on the matter, all the Judges
constituting the Coram for the case have collective duty to determine if there is sufficient ground for the
Judge to recuse himself from further participation in the case. We agree with the view of the
Constitutional Court of South Africa where in the SA Rugby Football Union case (supra) it said at
paragraph 31:
“If one or more of its members is disqualified from sitting in a particular case, this Court is under duty to say
so, and to take such steps as may be necessary to ensure that the disqualified member does not participate in
the adjudication of the case.”

Consequently, notwithstanding the deficient approach in the instant case whereby the recusal application
was rushed to open court, without following the appropriate usual procedure, we are satisfied that the
best course is to dispose of the application in the manner we have just indicated.
(b) Impartiality and disqualification by reason of bias
All counsel for parties and the amicus curiae ably addressed us at length and referred us to numerous
judicial precedents from diverse jurisdictions which we have read and found extremely helpful in the
exposition of the law governing the duty of a judicial officer to administer justice with impartiality and
the corresponding duty to disqualify himself from exercising the judicial function by reason of bias.
Judicial impartiality is the bedrock of every civilised and democratic judicial system. The system
requires a Judge to adjudicate disputes before him impartially, without bias in favour of or against any
party to the dispute. It is in that context that article 24 of the Treaty ordains that:
“Judges of [this] Court shall be appointed by the Summit from among persons recommended by the Partner
States who are of proven integrity, impartiality and independence…” [Emphasis mine.]

In the same vein, before taking office, every Judge of this Court, like Judges of other courts universally,
takes the judicial oath undertaking to serve the Community and to do justice in accordance with the
Treaty as by law established and in accordance with laws and customs of the Community:
“Without fear or favour, affection or ill will.”

There are two modes in which the courts guard and enforce impartiality. First, a Judge, either on his own
motion or on application by a party, will recuse himself from hearing a cause before him, if there are
circumstances that are likely to undermine, or that appear to be likely to undermine his impartiality in
determining the cause. Secondly, through appellate or review jurisdiction, a court will nullify a judicial
decision if it is established that the decision was arrived at without strict adherence to the established
principles that ensure judicial impartiality. The first is that “a man ought not to be a Judge in his own
cause”. The second, which additionally is intended to preserve public confidence in the judicial process,
is that “justice must not only be done but must be seen to be done.”
Page 23 of [2007] 1 EA 12 (EACJ)

Of the first principle, Lord Browne-Wilkinson said in Pinochet’s case (supra) at page 586:
“This principle, as developed by the courts, has two very similar but not identical applications. First it may be
applied literally: if a Judge is a party to the litigation or has a financial or proprietary interest in its outcome
then indeed he is sitting as a Judge in his own cause. In that case mere fact that he is a party to the action or
has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The
second application of the principle is where a Judge is not a party to the suit and does not have a financial
interest in its outcome, but in some other way his conduct or behaviour may give rise to suspicion that he is
not impartial, for example because of his friendship with a party. This second type of case is not strictly
speaking an application of the principle … since the Judge will not normally be himself benefiting, but
providing a benefit for another by failing to be impartial.”

There are two categories of scenarios. In the first, where it is established that the Judge is a party to the
cause or has a relevant interest in its subject matter and outcome, the Judge is automatically disqualified
from hearing the cause. In Pinochet’s case (supra) the House of Lords held that automatic
disqualification applies not only where the Judge is directly or indirectly a party or has financial or
proprietary interest in the suit, but also where he has some other interest in the outcome of the suit. In a
case where an automatically disqualified Judge does not recuse himself, the decision or order he makes
or participates in, will be set aside, notwithstanding that he did not act with bias.
In the second category, where the Judge is not a party and does not have a relevant interest in the
subject matter or outcome of the suit, a Judge is only disqualified if there is likelihood or apprehension of
bias arising from such circumstances as relationship with one party or preconceived views on the subject
matter in dispute. The disqualification is not presumed like in the case of automatic disqualification. The
applicant must establish that bias is not a mere figment of his imagination. In the SA Rugby Football
Union case (supra) the Court said in paragraph 45:
“An unfounded or unreasonable apprehension concerning a judicial officer is not a justifiable basis for [a
recusal] application.”

For the purposes of this application, we do not find it necessary to delve into the controversy on the test
that Dr Kuria addressed us on at length. We think that the objective test of “reasonable apprehension of
bias” is good law. The test is stated variously, but amounts to this: do the circumstances give rise to a
reasonable apprehension, in the view of a reasonable, fair-minded and informed member of the public,
that the Judge did not (will not) apply his mind to the case impartially. Needless to say, a litigant who
seeks disqualification of a Judge comes to court because of his own perception that there is appearance of
bias on the part of the Judge. The court, however, has to envisage what would be the perception of a
member of the public who is not only reasonable but also fair-minded and informed about all the
circumstances of the case would be.

Consideration of the issues

Much as the applicant’s case is grounded on the Judge’s failure to make disclosure to the parties at the
commencement of hearing on 24 November 2006, the applicant has not been explicit as to what the Judge
was under duty to disclose. The initial pleading in the notice of motion was that the Judge failed to
disclose:
(1) his interest – (paragraph e);
Page 24 of [2007] 1 EA 12 (EACJ)

(2) material fact that he was related to the Republic of Kenya in a manner which rendered it
impossible for him to give a fair hearing to the Attorney-General – (paragraph i);
(3) facts that he was suspended from performance of functions of Judge of Appeal and that a tribunal
was appointed to investigate allegations that he was involved in corruption, unethical practice, and
absence of integrity – (paragraphs g, h and l).
Since counsel for the applicant conceded that the Judge did not have any interest in the case and chose
not to rely on actual “animosity” but on only perception of possible “animosity” towards the
Government, we only need to consider if the Judge was under obligation to disclose the third set of facts.
We have no hesitation in holding that the Judge was not under any such obligation. A judicial officer
is required to disclose facts that may raise apprehension of possible bias on his part, in order to show that
he has no actual bias and to give opportunity to a party who considers that he might be prejudiced, to
exercise the right to apply for the Judge to recuse himself or to waive that right. The disclosure is not a
pre-condition for the application to be made. We were not persuaded by Dr Kuria’s contention that
disclosure is for public consumption in order to retain its confidence in the judiciary. A litigant who has
knowledge of such facts is at liberty to make the application even in absence of their disclosure by the
Judge. It follows that an applicant who relies on the judge’s failure to disclose material facts must show
that those facts were not within his or his legal advisor’s knowledge. See Pinochet’s case (supra). Failure
of a Judge to disclose facts that are within public knowledge cannot be a ground on which a reasonable
member of public would apprehend bias. See SA Rugby Football Union case (supra) (paragraph 93).
The suspension of Justice Moijo Ole Keiwua and the appointment of a tribunal to investigate his
conduct, have been matters of public knowledge since they were published in the Kenya Gazette of 15
October 2003, not to mention publications in mass media. Besides, both the appointment of the tribunal
and the suspension of the Judge were acts done by the Government of Kenya to which the applicant is the
principal legal advisor. It is reasonable to assume that he was consulted on those matters. In any case it
was not suggested that the facts were not in his knowledge. If it was those facts that gave rise to any
apprehension or the perception of possible bias on the part of Justice Moijo Ole Keiwua, then the
Attorney-General was in a position to object to the Judge sitting when the case came up for hearing on 24
November 2006. His omission to do so leads to only two possible inferences. Either he opted to waive his
right to object or he did not harbour the apprehension or think that a reasonable, fair-minded and
informed member of the public would perceive such apprehension.
It was strenuously argued for the applicant that there was no waiver and that the applicant did not lose
the right to raise the objection at a later stage as he eventually did in this application. Significantly,
however, no attempt was made to explain the omission. From the authorities we have consulted, the
prevalent view, with which we agree, is that a litigant seeking disqualification of a Judge from sitting on
the ground of appearance of bias must raise the objection at the earliest opportunity. The Court of Appeal
of Kenya in Ole Keiwua v Chief Justice of Kenya and others [2006] eKLR, expressed the same view
thus:
Page 25 of [2007] 1 EA 12 (EACJ)

“We appreciate the fact that a party to any judicial proceedings has a right to object to any Judge or
judicial officer sitting if he or she has good reason for raising such objection. However, whoever intends
to raise such objection is obliged to raise his objection at the earliest opportunity.”
However, our attention was drawn to an earlier decision of the same court in King Woollen Mills Limited
and another v Standard Chartered Financial and another civil appeal number 102 of 1994, where it
observed with approval that in a previous decision it had emphasised that “delay in bringing the
[recusal] application did not defeat the duty or obligation of [the respondent in that application]”. Mr
Kilonzo submitted, and we are inclined to agree, that the decision of 2006 is to be preferred as the latest
stand of that Court on the matter.
In Administrative Law (8ed) by HWR Wade and CF Forsyth the learned authors wrote at page 455:
“The right to object to a disqualified adjudicator may be waived, and this may be so even where the
disqualification is statutory. The court normally insists that the objection shall be taken as soon as the party
prejudiced knows the facts which entitle him to object. If, after he or his advisors know of the
disqualification, they let the proceedings to continue without protest, they are held to have waived their
objection and the determination cannot be challenged.”

The learned authors cite as authority for that proposition Locabail (UK) Ltd v Bayfield Properties Ltd
and another [2000] QB 451.
We respectfully agree that a litigant who has knowledge of the facts that give rise to apprehension of
possibility of bias ought not to be permitted to keep his objection up the sleeve until he finds out that he
has not succeeded. The court must guard against litigants who all too often blame their losses in court
cases to bias on the part of the Judge. In the SA Rugby Football Union case (supra) (paragraph 68) the
court observed:
“Success or failure of the government or any other litigant is neither ground for praise or for condemnation of
a court. What is important is whether the decisions are good in law, and whether they are justifiable in
relation to the reasons given for them. There is unfortunate tendency for decisions of courts with which there
is disagreement to be attacked by impugning the integrity of the judges, rather than by examining the reasons
for the judgment ... Decisions of our courts are not immune from criticism. But political discontent or
dissatisfaction with the outcome of the case is no justification for recklessly attacking the integrity of judicial
officer.”

In the instant case the applicant’s position in this regard is exacerbated by the events following the
granting of the interim injunction. The applicant did not only file the response to the reference within the
abridged time he had undertaken to the court, but according to the information disclosed in his
application, he was involved in a parallel process of amending the Treaty. We note that clearly the
amendment is a direct reaction to the impugned ruling of the court. In his response to the reference filed
on 30 December 2006, the applicant continues to protest the court’s jurisdiction, an issue that was
already decided, but does not hint at, let alone raise, any objection to the sitting of any member of the
court on ground of any appearance or perception of bias. He chooses to do so only when the case is
moving close to hearing and uses the opportunity to inform the court through the affidavit of Dr Wario
that the amendments to the Treaty have been ratified by the Republic of Kenya and awaits ratification by
the other two Partner States to come into force.
Page 26 of [2007] 1 EA 12 (EACJ)

While we are anxious to refrain from commenting on the merits and/or demerits of the process of
amending the Treaty in reaction to an interim court order, we are constrained to say that any reasonable
court would conclude as we are inclined to do, that this application was brought more out of a desire to
delay the hearing of the reference than a desire to ensure that the applicant receives a fair hearing. In our
view, this is tantamount to abuse of court process, and we would be entitled to dispose of the application
on that finding alone. However, in the peculiar circumstances of this case, we think that it is prudent to
consider if on the facts complained of, Justice Moijo Ole Keiwua ought to have recused himself from the
hearing on 24 November 2006, and/or to recuse himself from any further hearing of the reference and
applications therein.
As we have already noted, the facts the applicant finally relies on are not in dispute. They are that
more than three years ago, in October 2003, Justice Moijo Ole Keiwua was suspended from duty as a
Judge of Appeal in the Republic of Kenya and that a tribunal was appointed to investigate his conduct.
The suspension and the appointment were made pursuant to the provisions of section 62 of the
Constitution of the Republic of Kenya. To this may be added the fact that in November 2006, a reference
was filed in this Court in which the applicant, the Attorney-General of Kenya, in his official capacity as
the Legal consultant of the Government, was cited as the first respondent.
The applicant’s case was that from those facts members of the public must have perceived reasonable
apprehension or suspicion that the Judge would be biased. By way of elaboration Dr Kuria argued that
the perception was based on the assumption that as a human being the Judge would harbour animosity
against the Government that suspended him from his duty and subjected him to the resultant
disadvantages and would seek “to hit back” by deciding the case against the Government of Kenya
represented by the applicant.
For the respondents, several counsel countered that argument variously. Mr Kilonzo submitted that the
perception contrived by the applicant was not the perception a reasonable member of the public would
conceive. He opined that it was more likely to conceive a perception that Judges on suspension would
want to ingratiate themselves with the Government in order to get reprieve. However, the main thrust of
his reply was that the court had to view the facts through the eyes of a fair-minded and well-informed
member of public. He forcefully argued that such a person, would not perceive a Judge of the ability,
skills and experience of the President of this Court adjudicating a case unfairly merely because a tribunal
was appointed under section 62 of the Kenya Constitution to investigate allegations against him. Another
point highlighted by several other counsel for the respondents was that the alleged animosity was
farfetched as neither the President nor the Government were responsible for the allegations that led to the
suspension.
It is indisputable that different minds are capable of perceiving different images from the same set of
facts. This results from diverse factors. A “suspicious mind” in the literal sense will suspect even where
no cause for suspicion exists. Unfortunately this is a common phenomenon among unsuccessful litigants.
That is why, as we pointed out earlier in this ruling, the mind envisaged in the test to determine
perception of possible or likely bias on the part of a Judge is a reasonable, fair and informed mind. We
think that applying that mind to the facts of this case would not produce the perception canvassed by the
applicant.
Page 27 of [2007] 1 EA 12 (EACJ)

In our opinion, a reasonable person would not perceive that a Judge whose conduct is under
investigation, would risk conducting an unfair adjudication against the very authority investigating his
conduct. A reasonable and informed person, knowing that the Judge sits in a panel of five Judges, trained
and sworn to administer justice impartially, would not in our view, perceive that the Judge would skim to
single- handedly deny the applicant a fair hearing or justice. We think a reasonable, informed and
fair-minded member of the public, appreciating the subject matter and nature of the reference, would
credit the Judge with sufficient intelligence not to indulge in futile animosity.
In view of the foregoing, we find that the applicant has not satisfied us that Justice Moijo Ole Keiwua
was disqualified from sitting in the proceedings of the Court held on the 24 and 25 November 2006 and
from participating in the resultant ruling of 27 November 2006. Similarly, by his admission through the
learned Solicitor-General, Mr Wanjuki Muchemi and Dr Kamau Kuria SC, Justice Kasanga Mulwa was
not disqualified. We therefore hold that the said ruling was not vitiated by their participation and reject
the prayer for setting it aside.
In response to the prayer that the Judges disqualify themselves from further hearing of the reference
and applications therein, Justice Moijo Ole Keiwua has made a response declining to do so. We agree
with his position as there is no basis for the prayer. His response shall be deemed to be incorporated in
this ruling. In view of the withdrawal of the application against Justice Kasanga Mulwa he thought it
unnecessary to respond. Accordingly the prayer that the two Judges disqualify themselves from further
hearing of the reference and applications therein, is also rejected.
In conclusion, we would like to borrow the words of the Constitutional Court of South Africa in the
SA Rugby Football Union case (supra) paragraph 104:
“While litigants have the right to apply for the recusal of judicial officers where there is a reasonable
apprehension that they will not decide a case impartially, this does not give them the right to object to their
cases being heard by particular judicial officers merely because they believe that such persons will be less
likely to decide the case in their favour …The nature of the judicial function involves the performance of
difficult and at times unpleasant tasks. Judicial officers are nonetheless required to ‘administer justice to all
persons alike without fear, favour or prejudice in accordance with the Constitution and the law.’ To this end
they must resist all manner of pressure, regardless of where it comes from. This is the constitutional duty
common to all judicial officers. If they deviate, the independence of the judiciary would be undermined and in
turn the Constitution itself.”

In article 6 of the Treaty the Partner States agreed to include among the fundamental principles to govern
the achievement of the objectives of the Community the principle of the rule of law. In addition they
agreed to establish this Court which they mandated under article 23 to be the judicial body that “shall
ensure the adherence to law in the interpretation and application of and compliance with the Treaty.” One
of the cardinal rules in the doctrine of the rule of law is respect of court decisions. If that rule is deviated
from then the principle becomes hollow and remains on paper only. In the case of the Community, the
Treaty and all it seeks to achieve will stand on sinking sand.
In the result we dismiss the application with costs to the respondents.
For the appellant:
Mr Amos Wako
For the respondents:
Mr Otiende Amollo and Mr Mutula Kilonzo
 Begumisa Financial Services Ltd v General Mouldings Ltd and another
[2007] 1 EA 28 (CAU)

Division: Court of Appeal of Uganda at Kampala

Date of judgment: 16 March 2007
Case Number: 86/02
Before: Kikonyogo DCJ, Engwau and Kavuma JJA
Sourced by: LawAfrica
Summarised by: E Dimba

[1] Civil procedure – Interest on liquidated amount or specific goods – Awarded from date of judgment
till payment in full – Whether trial Judge exercised discretion to award interest judicially.

Editor’s Summary
The respondents contracted the cross-appellant to negotiate a loan of UShs 235 000 000 from East
African Development Bank including other ancillary services at an agreed cost of UShs 3 993 750.
The appellant also secured a bank guarantee from International Credit Bank Limited by obtaining an
insurance guarantee from National Insurance Corporation. As collateral for the loan, the appellant
procured land titles at an agreed cost of UShs 14 500 000. The appellant did all the above mentioned
tasks on the instructions of the respondents.
The appellant’s case as against the second respondent was dismissed but was awarded (a) UShs 4 719
340 less one-fifth on the amount of man-hours award, (b) special damages of UShs 11 310 410, (c)
general damages of UShs 500 000 and (d) interest on (a), (b) and (c) at prevailing bank rates from date of
judgment till payment in full.
The appellant appealed on grounds inter alia that the trial Judge erred in awarding interest at the
prevailing bank rate on UShs 4 719 340 and special damages of UShs 11 310 410 from date of judgment
till payment in full.
Held – An award of interest is discretionary. The basis of an award of interest is that the defendant has
kept the plaintiff out of his money and the defendant has had the use of it himself and therefore he ought
to compensate the plaintiff accordingly. (Harbutt’s Plasticine Ltd v Wayne Tank and Pump Company
Limited [1970] 1 QB 447 applied).
Where a person is entitled to a liquidated amount or to specific goods and has been deprived of them
through the wrongful act of another person, he should be awarded interest from the date of filing suit.
Where, however, damages have to be assessed by the Court, the right to those damages does not arise
until they are assessed and their interest is only given from date of judgment. (Mukisa Biscuit
Manufacturing Company Limited v West End Distributors Limited number 2 [1970] EA 469 followed).
The time when the amount claimed was due is the date from which interest should be awarded. As a
matter of law, unless the rate of interest is agreed in the contract, the rate must be reasonable. (JK Patel v
Spear Motors Limited Supreme Court civil appeal number 4 of 1991 (UR) followed)
Page 29 of [2007] 1 EA 28 (CAU)

The trial Judge did not exercise his discretion to award interest judicially. Interest on amounts
specified as (a), (b) and (c) hereinabove granted at prevailing bank rate from date of filing suit till
payment in full.
The respondents had a common objective of securing a mutual loan. The respondents did not deny the
invoice for UShs 3 993 750 in consultancy fees.
The trial Judge erred in dismissing the suit against the second respondent for lack of a cause of action.
The second respondent was equally liable as the first respondent for breach of contract.
Cross-appeal allowed with costs.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
JK Patel v Spear Motors Limited Supreme Court civil appeal number 4 of 1991 (UR) – F
Lata v Mbiyu [1965] EA 592
Milly Masembe v Sugar Corporation and another civil appeal number 1 of 2000 (UR)
Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited number 2 [1970] EA
469 – F
Prem Lata v Mbuya [1965] EA 592

United Kingdom
Harbutt’s Plasticine Ltd v Wayne Tank and Pump Company Limited [1970] 1 QB 447 – A

Judgment
Engwau JA: The cross-appellant was the plaintiff in High Court civil suit number 804 of 1995 and the
respondents were the first and second defendants, respectively. Briefly, the facts of the suit were that
cross-appellant carries on business of financial consultancy services.
On the 17 May 1995 both respondents contracted him to negotiate a loan of UShs 235 000 000 for
them from East African Development Bank, including ancillary services like consultancy services and
appraisal studies at an agreed cost of UShs 3 993 750. The appellant also secured a bank guarantee from
International Credit Bank Limited by obtaining an insurance guarantee from National Insurance
Corporation. As collateral for the loan the appellant procured land titles at an agreed cost of UShs 14 500
000. The appellant did all the above tasks on the instructions of the respondents.
In short the terms of the contract were for the appellant to:
(a) provide land titles for collateral security for bank loan of UShs 235 000 000;
Page 30 of [2007] 1 EA 28 (CAU)

(b) prepare an appraisal report, regarding manufactured products and marketing including cash flow
projection for the use and repayment of the loan;
(c) access and study the factory premises of the respondents;
(d) be a consultant in the negotiations with the East African Development Bank for a loan; and
(e) carry out a market survey of the distribution points for the respondents’ products.
At the trial, the learned Judge dismissed the case with costs against the second respondent on the ground
that the second respondent had nothing to do with the arrangements the subject of the suit. In conclusion,
the appellant was awarded (a) UShs 4 719 340 less one-fifth on the amount of man-hours award, (b)
special damages of UShs 11 310 410 and (c), general damages of UShs 500 000. Interest on (a), (b) and
(c) at current bank rate from the date of judgment till payment in full.
There were three grounds of cross-appeal. The first ground was, however, abandoned. The remaining
grounds two and three read as follows:
Ground two:
The learned trial Judge erred in law when he awarded interest at bank rate on UShs 4 719 340 and special
damages of UShs 11 310 410 from date of judgment till payment in full.
Ground three:
The learned trial Judge erred in law and fact when he dismissed the suit against the second respondent
with costs.
M/S Tashobya, Byarugaba and Company Advocates and M/S Kaweesa and Company Advocates
represented the appellant while the respondents were represented by M/S Byenkya, Kihika and Company
Advocates.
On ground two, it was contended that the cross-appellant had executed its duties and the East African
Development Bank was ready to grant the respondents the loan but on 15 July 1995 the first respondent
wrote to the bank a letter (exhibit P9) not to process the loan. In counsel’s view, the appellant was
entitled to getting its remuneration to be awarded in UShs 4 719 340 and UShs 11 310 410 as from 15
July 1995. The suit was concluded on 25 February 2002 after around seven and a half years from the date
when the money was due, and the suit was filed. Therefore, according to counsel, interest should have
commenced from the date of filing the suit (21 September 1995) till payment in full. The reason being
the appellant’s money would have made profits for its economic empowerment. Counsel in support cited
and relied on JK Patel v Spear Motors Limited SCCA number 4 of 1991 (UR) in which it was held, inter
alia, that the time when the amount claimed was due is the date from which interest should be awarded.
M/S Byenkya, Kihika and Company Advocates did not agree. They based their argument on the
principles which govern award of interest by courts as provided in section 26(2) of the Civil Procedure
Act thus:
“26 (2) Where in so far as a decree is for payment of money, the court may, in the decree, order interest
at such rate as the court deems reasonable to be paid on the principal sum adjudged from the
date of the suit to the date of the decree in addition to any interest adjudged on such principal
sum for any
Page 31 of [2007] 1 EA 28 (CAU)
period prior to the institution of the suit, with further interest at such rate as the court deems
reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment
or to such earlier date as the court thinks fit.”

Counsel pointed out that in the case of Milly Masembe v Sugar Corporation and another civil appeal
number 1 of 2000 (UR) it was held that the above section leaves the discretion to the court to award
interest and that the interest must be reasonable. Learned counsel further submitted that the discretion of
a trial Judge should not be tampered with unless it has been demonstrated that his/her award has been
unduly excessive with regard to the circumstances of the case, and that he/she has acted on a wrong
principle.
Counsel pointed out further that at page 99 of the record of appeal the learned trial Judge said thus:
“The plaintiff pleaded special damages being the amount of money he expected to reap from the contract and
out of pocket expenses. These have been allowed him thus putting him in the state in which he should have
been in if the contract had not been broken.”

According to counsel, the above extract clearly shows that the trial Judge was alive to the fact that the
cross-appellant had been put back in the state in which he should have been if the contract had not been
broken and hence exercised his discretion to award interest from the date of judgment. He argued that the
discretion should not be interfered with.
In its cross-appeal, the respondent claimed that the learned trial Judge erred in awarding only interest
from the date of judgment till payment in full instead of awarding interest from the date of filing the suit
to the date of payment as prayed in the plaint.
Counsel for the cross-appellant relied on the provisions of section 26 of the Civil Procedure Act. The
provisions of section 26(2) Criminal Procedure Act. have already been set out in this judgment. The
learned trial Judge said on the issue: The sum total of my judgment is that I enter judgment for the
plaintiff for:
(a) UShs 4 719 340 less one-fifth on the amount of man-hours award;
(b) Special damages of UShs 11 310 410
(c) General damages at UShs 500 000 (five hundred thousand only).
Interest at the current bank rate on (a), (b) and (c) and costs which will also attract the same interest from
the date of this judgment till payment in full. I so order.
The principle laid down by Lord Denning in Harbutt’s Plasticine Limited v Wayne Tank and Pump
Company Limited [1970] 1 QB 447 is that:
“An award of interest is discretionary. It seems to me that the basis of an award of interest is that the
defendant has kept the plaintiff out of his money, and the defendant has had the use of it himself. So he ought
to compensate the plaintiff accordingly.”

This principle appears to have been accepted in Mukisa Biscuit Manufacturing Company Limited v West
End Distributors Limited number 2 [1930] EA 469 when Spry, VP said:
“The principle appears clearly, I think, in the judgment of this Court in Prem Lata v Mbiyu [1965] EA 592.
That was a case concerning damages for personal injuries.
Page 32 of [2007] 1 EA 28 (CAU)
The principle that emerges is that where a person is entitled to a liquidated amount or to specific goods and
has been deprived of them through the wrongful act of another person, he should be awarded interest from the
date of filing suit. Where however, damages have to be assessed by the court, the right to those damages does
not arise until they are assessed and their interest is only given from the date of judgment.”

In JK Patel v Spear Motors Limited Supreme Court civil appeal number 4 of 1991 (UR), Seaton JSC
(RIP) said:
“The time when the amount claimed was due is the date from which interest should be awarded. In the instant
case that date was the last time when the parties agreed on the total balance due. As a matter of law, unless the
rate of interest was agreed in the contract, the rate awarded must be reasonable.”

Considering the law and the principles laid down in the above authorities, I must hold with great respect
that the learned trial Judge did not exercise his discretion judicially.
The reason he gave for not granting the prayer was that the cross-appellant had pleaded special
damages being the amount of money he expected to reap from the contract and out of pocket expenses
and that since they were allowed, the appellant was put in the state in which he should have been in if the
contract had not been broken. In the circumstances that reason cannot stand. I would, therefore, grant
interest on (a), (b) and (c) at the current bank rate from the date of filing the suit till payment in full.
Ground two succeeds.
The complaint on the third ground was that the trial Judge erred in law and fact when he dismissed the
suit against the second respondent with costs. It was the contention of the cross-appellant that the trial
Judge did not correctly evaluate the evidence on record to come to the conclusion that no cause of action
existed against the second respondent. The evidence, according to counsel, which was not properly
evaluated included: First, that on 17 May 1995, Mr Bitangaro of M/S Bitangaro and Company Advocates
called Mr Begumisa, PW1, and introduced him to Messers Rashik Shah and Ramesh Babu.
Mr Rashik Shah was the Director of both General Mouldings Limited and Kiboko Enterprises
Limited. Mr Ramesh Babu was an Accountant of Kiboko Enterprises Ltd.
According to the evidence of PW1, both companies had a common objective of securing a mutual
loan. General Mouldings Limited. wanted a loan to buy a moulding machine and Kiboko Enterprises
Limited would be using a lorry to transport iron sheets upcountry. In that meeting Mr Shah gave PW1 his
two business cards showing that he was a Director in both companies.
Secondly, that in another meeting, PW1 wanted to know whom Shah was representing and the reply
was that he was acting for both companies. As for Mr Babu, Shah emphasised that Babu was an
Accountant of Kiboko Enterprises Limited. PW1 testified that he delivered the appraisal report to Mr
Shah, which included Kiboko Enterprises Limited and all along Mr Babu of Kiboko Enterprises Ltd as an
Accountant would accompany them on inspection of the collateral.
Thirdly, that it was upon those circumstances that PW1 executed an invoice of 13 June 1995 to
Kiboko Enterprises Limited and General Mouldings Limited for UShs 3 993 750 in consultancy fees
(exhibit PW1). In exhibit PW2, though
Page 33 of [2007] 1 EA 28 (CAU)

addressed to General Mouldings Limited, PW1 stated: “The minor underlying purpose is to show how
the sister companies of General Mouldings Limited and Kiboko Enterprises Ltd can co-operate in
haulage to minimise haulage expense in the marketing of their products.”
It was the contention of counsel for the cross-appellant that the trial Judge was wrong to hold that the
communication above by PW1 to the first respondent did not involve the second respondent in the
engagement of the contract. Both companies, according to counsel, never denied PW1 invoicing them.
Further, counsel submitted that according to PW1, Mr Shah was the leading figure who engaged him for and
on behalf of both companies. Mr Shah was not called to testify and deny engaging PW1. Even the evidence of
Mr Babu did not in any way controvert the evidence of PW1, counsel argued. In the premises, counsel urged
that the second respondent should be restored to the suit and judgment be passed against it in the terms prayed
for in the cross-appeal.

Learned counsel for the respondents did not agree. They instead supported the dismissal of the suit
against the second respondent when the trial observed thus:
The suit is against two defendants, namely:
“(1) General Mouldings Ltd,
(2) Kiboko Enterprises Ltd.”

Mr BS Ramesh Babu who testified on behalf of the defendants in no uncertain terms swore that the
second defendant had nothing to do with the arrangements of the subject suit. I have very carefully and
meticulously examined all the exhibits submitted during the hearing and leave no scintilla of doubt that
the contention of Mr Ramesh is correct. The request for the loan was by General Mouldings Limited, as
clearly shown by exhibit P8. All the correspondences on the subject are and speak of only General
Mouldings Limited.
By written statement of defence and paragraph 5 thereof stated:
“(5) The second defendant shall aver and contend that the plaint discloses no cause of action against them.
This is a correct statement. The suit against the second defendant is hereby dismissed with costs. I so
order.”

In light of the above, it was contended for the respondents that the trial Judge correctly evaluated the
evidence on record to come to the conclusion that no cause of action existed against the second defendant
and he correctly dismissed it.
I have re-evaluated the evidence on record as a whole and my findings include: First, the contact
between the parties was an oral one. I wonder why the services of M/S Bitangaro and Company
Advocates who introduced them were not sought for in processing written agreement! Be that as it may,
oral agreement is just as good as a written one in law.
Secondly, Mr Shah was the outstanding figure in the said contract. He introduced himself and gave
PW1 his business cards showing he was a Director of both General Mouldings Limited and Kiboko
Enterprises Limited. He also introduced Mr Babu as an Accountant of Kiboko Enterprises Limited. Both
companies had a common objective of securing a mutual loan. General Mouldings Limited wanted a loan
to buy a moulding machine and Kiboko Enterprises Ltd would be using a lorry to transport iron sheets
upcountry.
Mr Shah received the appraisal report prepared and handed to him at their office on Bombo Road. The
appraisal report included the second respondent. Whenever Shah and PW1 were going for inspection of
the collateral, Mr Babu was all along accompanying them in his capacity as an Accountant of Kiboko
Enterprises Ltd. In the premises, PW1, executed an invoice, of 13 June 1995 to
Page 34 of [2007] 1 EA 28 (CAU)

Kiboko Enterprises Ltd and General Mouldings Ltd for UShs 3 993 750 in consultancy fees.
Further, PW1 wrote a letter (exhibit P2) thus:
“The minor underlying purpose is to show how the sister companies of General Mouldings Ltd and Kiboko
Enterprises Ltd can co-operate in haulage to minimise haulage expense in the marketing of their products.”

The above evidence was and it is still glaring on the record. In the circumstances I would not believe the
evidence of Ramesh Babu that the second respondent had nothing to do with the arrangements, the
subject matter of the suit. I would also not agree with great respect, to the trial Judge that the contention
of Ramesh was correct to that effect. Both companies had a common objective of securing a mutual loan.
General Mouldings Limited, wanted to buy a moulding machine and Kiboko Enterprises Ltd would be
using a lorry to transport iron sheets upcountry. Both companies did not deny the invoice PW1 executed
on 13 June 1995 for UShs 3 993 750 in consultancy fees.
In these circumstances, the learned trial Judge erred in dismissing the suit against the second
respondent for lack of cause of action. I would reverse that order and restore that the second respondent
was equally liable as the first respondent for breach of the contract.
In the result, I would allow the cross-appeal with costs here and in the court below.
Kikonyogo DCJ: I read in draft the judgment prepared by my learned brother, Engwau JA and I concur
that for the reasons he gave the cross-appeal must succeed. On the authorities cited by him in his
judgment namely: Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited
number 2 [1930] EA 469; Prem Lata v Mbuya [1965] EA 592 and JK Patel v Spear Motors Limited
Supreme Court civil appeal number 4 of 1991 (UR); interest on (a), (b) and (c) should start running from
the filing of the suit till payment in full. Ground two would be allowed.
With, regard to ground three, as the evidence stands on record, I also agree that the second respondent
is jointly and equally liable with first respondent to the cross-appellant. In the result, I would also allow
ground three. The order of dismissal of the suit against the second respondent would be set aside and the
suit be restored.
As Steven Kavuma JA so concurs, the cross-appeal is allowed. The order of dismissal of the suit
against second respondent is set aside and the suit hereby restored. The second respondent, therefore, is
equally liable as the first respondent for breach of contract. The order of the High Court granting interest
on (a), (b) and (c) from the date of judgment is also set aside. The interest thereon would start with effect
from the filing date till payment in full with costs both in this Court and High Court.
Kavuma JA: I had the advantage of reading in draft the judgment prepared by my learned brother, SG
Engwau JA and I totally agree with it and the orders proposed therein. I have nothing to add.
For the appellant:
M/S Tashobya, Byarugaba and M/S Kaweesa
For the respondents:
M/S Byenkya, Kihika

Boc Kenya Limited v Karanja and another

 [2007] 1 EA 35 (HCK)

Division: High Court of Kenya at Nairobi

Date of judgment: 6 March 2007
Case Number: 700/03
Before: Visram JA
Sourced by: LawAfrica
Summarised by: C Kanjama

[1] Limitation of actions – Negligence claim – Instituted after four years – Ex parte leave granted –
Leave challenged at trial – Whether procedure followed correct – Whether delivery of late evidence a
sufficient reason for extension of time – Section 27 Limitation of Actions Act.

Editor’s Summary
The respondents sustained injuries following the explosion of a gas cylinder manufactured and sold by
the appellant. They sought leave to institute a suit for negligence four years after the accident ex parte.
The appellant challenged the leave within the suit, in his defence, in his cross-examination of the
respondents, and in his submissions. The trial court disregarded the defence of limitation, and awarded
damages for negligence against the appellant. On appeal.
Held – Application for leave to file suit out of time is normally made ex parte. The defendant’s recourse
for wrongful grant of leave is to challenge the leave at the trial, which it did through its pleadings,
cross-examination and submissions. This was the right procedure. Divecon Limited v Samani
[1995-1998] 1 EA 48 followed.
The suit for negligence should have been commenced within three years of the cause of action
accruing. The plaintiffs’ sole ground for delay was that they were awaiting a report from the government
analyst regarding the incident. The plaintiffs were waiting for evidence, and delivery of late evidence is
not a good reason not to obey the statute of limitation.
Appeal allowed.

Case referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Divecon Ltd v Samani [1997] LLR 585 (CAK), [1995-1998] 1 EA 48 – F

Judgment
Visram JA: This Appeal arises out of the decision of the Lower Court to award special and general
damages to the respondents for injuries sustained following an explosion of a gas cylinder manufactured
and sold by the appellant.
Page 36 of [2007] 1 EA 35 (HCK)

Although there are seven grounds of appeal listed on the Memorandum of Appeal, the appellant chose
to pursue only two grounds, namely (i) that the ex parte leave to extend time for filing suit was irregular,
and (ii) that the affidavit in support of the application for leave was sworn only by one plaintiff, and,
therefore, the other had not obtained leave.
It is not in dispute that the accident and injury giving rise to the cause of action here took place on 9
January 1999. This action was filed on 23 September 2002, more than four years after the cause of action
arose. Clearly, the respondents (plaintiffs in the lower court) needed leave to file suit out of time. They
made an ex parte application for that purpose, and were indeed granted leave on 19 September 2002, as is
indicated on the plaint.
An application for leave to file suit out of time is generally made ex parte under section 27 of the
Limitation of Actions Act, Chapter 22. In this case too, that application was made, and leave granted, ex
parte. The appellant (defendant) clearly had a right to challenge leave at the trial, and indeed, it did so.
First, and most importantly, it did so in the statement of defence. Paragraph 2 of the defence states:
“The first defendant avers that the plaintiff’s suit is bad in law as it offends the provisions of the Limitation of
Actions Act Chapter 22 of the Laws of Kenya.”

Secondly, during the cross-examination of the first plaintiff, the issue of the late filing of the suit was
raised (see page 31). Thirdly, at the submissions stage, the appellant’s counsel again revisited the issue.
He made detailed submissions on why leave should never have been granted in the first place, and he
properly relied on the Court of Appeal’s decision in Divecon Ltd v Samani [1997] LLR 585 (CAK).
And what was the learned Magistrate’s response to all this? A curt and completely inaccurate five
lines in the judgment, which states as follows:
“The issue of obtaining leave to file this suit out of time was not challenged during the hearing. Counsel for
the defendant is therefore estopped from raising the issues in the submissions as this amounts to testifying
from the bar. Suffice to say however that leave to file suit out of time was granted by a court of competent
jurisdiction. The reasons given were sufficient.”

The lower court simply did not deal with what I believe was the most important part of the defence – that
the suit was time-barred! And the court was inaccurate in its judgment that the defendant had not
“challenged” the issue of leave. Clearly, it had – in three different ways, as I have indicated.
The lower court was completely wrong in denying the Defence to invoke its challenge to the leave
that was granted to file the suit out of time, and on that ground alone, this appeal must succeed, and
ordinarily I could remit the file back to the lower court with a direction that the defence plea be
considered on its merit, and a judgment pronounced on that important issue. However, this being an old
case, no useful purpose will be served by doing so. The facts are not in dispute, and the record is clear. I
will invoke my inherent jurisdiction and simply deal with the matter.
In the application for leave to file suit out of time, the respondents admitted that the cause of action
arose on 9 January 1999. But, the only reason cited for failing to file suit in time is that they were
awaiting a report from the Government Analyst regarding the respondent’s negligence.
Page 37 of [2007] 1 EA 35 (HCK)

That, in my view, is not a valid reason not to file suit in time. What the respondents were waiting for
is “evidence”, and delivery of late evidence is not a good reason not to obey the statute of limitations.
In the case of Divecon (supra), the Court of Appeal outlined in detail the circumstances under which
the court can grant extension of time for filing suits in tort cases, and held that the plaintiff must prove
that material facts relating to the cause of action were outside his knowledge.
The facts in this case are not in dispute. The respondents knew exactly what caused the accident, but
chose to wait for more than four years before filing suit. There was no basis in law to have granted them
leave to file the suit out of time.
Accordingly, I would allow this appeal; strike out the plaint filed in the lower court on the grounds
that it was statute barred; and set aside the lower court judgment. The appellant shall have the costs, both
here, and in the lower court.
For the appellant:
Information not available
For the respondent:
Information not available

Brouwen v Attorney-General
[2007] 1 EA 37 (HCK)

Division: High Court of Kenya at Nairobi

Date of judgment: 4 May 2007
Case Number: 1609/03
Before: Rawal J
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Child – Duty of State to provide care and protection to children – Whether injunctive orders can be
issued against the government – Best interest of the child.

Editor’s Summary
The applicant, a Kenyan national, was married to one Oliver Pablo Limet, a Belgian National, on 16
September 1983. The couple had three issues out of the said marriage when their marriage was dissolved
by the Belgian Court of Tlivelters on 23 September 1997. The custody of the three children was granted
to the father with access to the applicant. The applicant however decided to keep the children when they
came to visit her in Kenya and she filed an originating summons seeking custody of the three children
and seeking injunction orders restraining either of the parents from removing any of the children out of
the court’s jurisdiction and that the children be placed under protection of the court. These orders were
granted and were not interfered with by the Court of Appeal vide its ruling delivered on 6 August 1999.
However, the father, despite the existence of the said orders, managed to remove two other children out
of the court’s jurisdiction through a deportation order in question. The applicant thereafter filed this
application seeking, inter alia, an injunction restraining the Attorney-General from executing the
contents of the deportation order issued by the Minister of State in the Office of the President
Page 38 of [2007] 1 EA 37 (HCK)

and a declaration that the deportation order issued by the said Minister, during the subsistence of a
warship order was illegal, a threat to the rights of the said child to the protection of law and an act in
violation of the best interest of the said children.
Held – Under Part II of the Children’s Act (number 8 of 2001), the State has been imposed with an onus
to provide, preserve and protect the rights of the child. The rights as enumerated in Part II (section 3) of
the Act are in pari materia with the fundamental rights, enshrined in our Constitution for all the persons
and nationals of this country. Section 4(2) and (3) of the Act mandates all concerned authorities
including courts of law to take the best interests of the child into primary consideration.
The Children’s Act is a special legislation and is also a subsequent or later legislation to the
Government Proceedings Act and gives specific and special powers similar to those given under the
Constitution. The court in preservation and protection of the rights of the children is empowered in
appropriate case, as the Constitutional Court is so empowered, to grant injunctive orders against the
government.
The government cannot claim that the applicant has not come before the court with clean hands when
it, despite being the provider, preserver and protector of the child’s rights and also the protector of rule of
law, defies orders of two courts of this country and tries from the back door to defy the same and commit
the contempt of those orders. The court will never allow any breach of laws and violation of rule of law
by any person or authority of this Republic.
The court has not been shown any complaint by anyone concerned that the child’s welfare and care is
not taken care of. The two courts, while giving the orders to restrain the child to be removed out of
jurisdiction and making them the wards of the High Court must have taken into consideration those facts.
Having given primary consideration to the welfare of the child, the court has no reason to disturb the
status quo.

Case referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Matalinga and others v A-G [1972] EAK 518

Judgment
Rawal J: Before me is a suit by way of originating summons dated 19 December 2003 filed under the
provisions of the Children’s Act (number 8 of 2001).
It seeks orders, inter alia:
(1) That injunction do issue restraining the defendant (who is the Honourable the Attorney-General)
by himself, servants or otherwise howsoever from executing the contents of the deportation order
issued by the Minister of
Page 39 of [2007] 1 EA 37 (HCK)

State in the Office of the President on or about the 11 September 2001 for the deportation of
Samuel Pipo Limet and
(2) That a declaration do issue that the deportation order issued by the Minister of State in the Office
of the President on or about the 11 September 2001 during the subsistence of a wardship order in
respect of, among others Samuel Pipo Limet granted by this Honourable Court on 12 August 1998,
was illegal, is a threat to the rights of the said child to the protection of the law and was an act in
violation of the best interest of the said children.
(3) Costs of the origination summons.
This matter is filed by the mother of the said Samuel Pipo Limet (hereinafter called “Samuel”), who is at
present living with Samuel is looking after his care, control and welfare.
It may be appropriate to give a brief history of this case. The applicant herein, a Kenyan national was
married to one Oliver Pablo Limet, a Belgian national, on 16 September 1983. The couple had three
issues out of the said marriage, Samuel being one of them. Their marriage was dissolved by the Belgian
court of Tlivelters on 23 September 1997. The custody of the three children were granted to the father
with access to the applicant/mother herein. The father at the time of the award of order of custody was
getting a sum of 16 735 Belgian Francs per month for child support and domestic servants, driver and
children nanny plus subsidised housing which he paid little rent for.
The applicant mother when the children came to her in Kenya decided to keep the children and went
to the High Court of Kenya by filing an originating summons (miscellaneous High Court case suit
number 910 of 1998) seeking custody of the three children and seeking injunction orders restraining
either of the parents from removing any of the children out of jurisdiction of the court and that the
children be placed under protection of the court. These orders were granted and were not interfered with
by the Court of Appeal vide its ruling delivered on 6 August 1999. The orders restraining the removal of
the three children out of the jurisdiction of the court and making them wards of the court still remain.
However, I am informed that the father, despite the existence of the said orders, managed to remove two
other children out of the jurisdiction of this Court through the deportation order in question. I need not go
into details as to how it happened as it is amply put forth in ruling of Ojwang J of 23 April 2004. Suffice
it is, to note that the orders of the court were defied, violated and two children were taken away from the
school on or about 11 September 2001 by immigration officers.
The said suit is still pending hearing inter partes of the application and thus the ex partes orders, as
aforesaid, are still in force.
This originating summons was thereafter filed and a temporary injunction restraining the respondent
from executing the contents of the deportation order in question was issued after the issue was heard
inter partes.
With this background the originating summons was heard substantively before me.
The applicant has filed three affidavits in support of the originating summons namely supporting
affidavit sworn on 19 December 2003, an affidavit sworn on 16 November 2006 and further affidavit
sworn on 19 February 2007.
Page 40 of [2007] 1 EA 37 (HCK)

The originating summons initially commenced hearing ex parte before me, but after adjourning the
matter to get more information as to the financial and factual status of Samuel and the applicant, the
respondent appeared and was allowed to file grounds of opposition dated 14 March 2007. The respondent
has until to date not filed any response by way of any affidavit. I do note from the record that during inter
parte hearing of interlocutory application, the respondent had withdrawn its chamber summons dated 16
January 2004.
In short I can thus unhesitantly accept the facts deponed by the applicant as unchallenged.
Thus I shall firstly accept and find that there is in existence a deportation order issued on or about 11
September 2001.
Samuel now lives at Mombasa with the mother, applicant. He attends Braeburn Mombasa
International School and the affidavit sworn on 16 November 2006 does show that Samuel is doing well
in his education and that the applicant has satisfactorily catered for his financial, physical, educational
and emotional needs. As per Ex MECAD B1 – The St. Andrew Trust Company Limited, Royal Scandia
Trust Company Limited has confirmed that a sum of $100 000 is kept for education of Samuel. It is also
shown to my satisfaction that the applicant is financially stable to look after the needs and welfare of
Samuel. I would reiterate that there is no contrary evidence before me and the respondent has failed to
show that the welfare of Samuel shall be better looked after by the father to whom the respondent is
endeavouring to take Samuel. It is not shown to me that the father is either in communication with or
contributing to the welfare of Samuel.
It is indelible that since 12 August 1998 the three children of the applicant were made wards of the
court with restraining order to take them out of the jurisdiction of the court. Simple meaning and effect of
the order of making the children wards of the court was that they were placed under the protection of the
court and their status; physical and/or legal; was not to be disturbed, interfered with or altered in any
manner except with the prior permission of the court. This court, therefore, had absolute control on the
movement of those three children.
Despite the said order, and its continued existence, the respondent ought to be aware, of the State
officials, (immigration officials in this case), forcibly removed the three children from their respective
schools and managed to deport the two namely Caroline Sheila Limet and Jim Paco Limet. This act was,
to say the least, in contempt of the order of this Court. The executive arm of this government had
unabashedly committed a flagrant violation of rule of law and still maintains its position as it is still
opposing this application.
Before going any further, I must consider those grounds of opposition. They are:
(1) That the orders sought cannot be granted.
(2) That the applicant has not come to (sic) with clean hands.
(3) That the application is otherwise an abuse of the process of this Honourable Court.
Elaborating on the said grounds, it was submitted by Mr Kamau, the learned counsel for the respondent,
that orders cannot be granted under section 16 of the Government Proceedings Act (Chapter 40, Laws of
Kenya). The relief
Page 41 of [2007] 1 EA 37 (HCK)

sought is specifically against the government and thus relied on the case of Matalinga and others v AG
[1972] EAK 518 wherein it was held by Simpson J (as he then was) that a mandatory injunction cannot
issue to a Government Official.
I must confess that I am unable to appreciate or comprehend the said submissions in view of specific
observations made by the court on page 521 of the said case namely:
“Section 16 of the Government Proceedings Act (Chapter 40) restricts the court to making declarations only
in proceedings against the Government where it might otherwise grant injunctions and prohibits the court
from granting any injunction or making any order against any officer of the Government the effect of which
would be to give any relief against the government which could not have been obtained in proceedings
against the Government.” [Emphasis mine.]

I also state that the application seeks declaration against the Government.
It also has to be noted that the application is made under the provisions of the Children’s Act,
(number 8 of 2001). The said Act was legislated to give effect to the principles of the UN convention on
Rights of the child and African Charter on the Rights and Welfare of the Child and thereupon to make
provisions for various aspects of the care, welfare and protection of children.
In Part II of the said Act the provisions are made to enact safeguards for the Rights and Welfare of the
Child and the first section of the said Part II (section 3) stipulates:
“(3) The Government shall take steps to the maximum of its available resource with a view to achieving
progressively the full realisation of the rights of the child set out in this part.”

In short the State has been imposed with an onus to provide, preserve and protect the rights of the child.
In my view the rights enumerated in the said part is in pari materia with the fundamental rights,
enshrined in our Constitution for all the persons and nationals of this country. It will be an
understatement if I find that the Act gives special rights to the children and jurisdiction to the High Court
to preserve and protect the same. I am fortified in my observation by the provisions of section 4(2) and
(3) of the Act which mandates all concerned authorities including the courts of law to take best interests
of the child into primary consideration.
The child’s right to live with and to be cared for by his parents is also granted under section 6(1) of
the Act.
Section 22 of the Act, once again, is speaking the similar language to that of section 84 of the
Constitution and the High Court is given jurisdiction to entertain any application, where any allegation
that any of the provisions of sections 4 to 19 (inclusive) has been, or is being or likely to be contravened
in relation to a child. When such an application is made then without prejudice to any other action with
respect to the same matter which is lawfully available the same may be heard in the High Court for
redress on behalf of the child.
The applicant has made this application as per the said provisions of section 22(1).
Then section 22(2) gives powers to the High Court to make such orders, issue such writs and give
such directions, as it may consider appropriate.
Page 42 of [2007] 1 EA 37 (HCK)

The Act which is a special legislation is also a subsequent or later legislation to the Government
Proceedings Act and gives specific and special powers similar to those given under the Constitution. The
court in preservation and protection of the rights of the children is empowered in appropriate case, as the
Constitutional Court is so empowered, to grant injunctive orders against the government. Thus I shall
reject that ground of opposition.
Second ground was that the applicant has not come before the court with clean hands as she has not
disclosed the existence of an order from the court at Belgium.
This submission begs a question. The respondent knowing very well that there is an order of the court
since 1998 and ratified by the Court of Appeal in 1999 making Samuel a ward of the court, has
proceeded to issue a deportation order. Should I say anything more?
I agree completely with the submissions made by the learned counsel for the applicant that the order
of the Belgian court has been taken over by our High Court and the Highest Court of Kenya. I also
entirely agree with sentiments expressed by Honourable Ojwang J in his ruling delivered after the inter
partes hearing of the interlocutory application for temporary injunction. It does not lie in the mouth of
the respondent to suggest that the welfare of the child is to live with his father. True, Court of Appeal did
mention the financial circumstances of the father, but despite that it went ahead and denied to interfere
with the order of wardship of the court in respect of the three children.
Does it also lie with the Government, to cry about lack of cleanness on the part of the applicant, when
it despite being the provider, preserver and protector, of the child’s rights and also the protector of rule of
law, defies the orders of two courts of this country and tries from the back door to defy the same and
commit contempt of those orders? It definitely does not. This court in all humility will never allow any
breach of laws and violation of rule of law by any person or authority of this Republic.
Besides, I have already considered the present position of the applicant and Samuel. I have not been
shown any complaint by any one concerned that the child’s care and welfare is not taken care of. The two
courts, while giving orders to restrain the child to be removed out of jurisdiction and making them the
wards of the High Court, must have taken into consideration those facts. I have in any event, made
additional efforts to look into the same and have given primary consideration to the welfare of the child. I
have no reason to disturb the status quo even considering the best interest and welfare of the child. The
father to whom he is sought to be returned is, as per the facts on record, a stranger to him. He is well
taken care of by the mother’s love, warmth and finance. To uproot him from this sound footing will be
against the interest of the child.
I thus also reject grounds two and three of the opposition.
I also support the findings and observations made by Ojwang J in his ruling of 23 April 2004 and add
to the same my own observations and findings.
In respect of originating summons dated 19 December 2003, I make the following orders:
(1) The respondent be and is hereby restrained by himself, servants or otherwise howsoever from
executing the contents of the Deportation order
Page 43 of [2007] 1 EA 37 (HCK)

issued by the Minister of State in the office of the President on or about 11 September 2001 for the
deportation of Samuel Pipo Limet.
(2) A declaration be and is hereby issued that the Deportation order issued by the Minister of State in
the office of the President on or about 11 September 2001 during the subsistence of a wardship
order in respect of Samuel Pipo Limet among others granted by this Court on 12 August 1998 is
illegal and null and void.
(3) The respondent to pay the costs of these proceedings.
For the appellant:
Information not available
For the respondent:
Mr Kamau

Charo v Republic
[2007] 1 EA 43 (CAK)

Division: Court of Appeal of Kenya at Mombasa

Date of judgment: 2007
Case Number: 265/06
Before: Tunoi, Waki and Deverell JJA
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Criminal procedure – Duty of Appellate Court to re-evaluate evidence.

[2] Criminal procedure – Whether failure to prove motive of committing offence fatal.
[3] Evidence – Circumstantial evidence – Factors to consider before convicting based on circumstantial
evidence.

Editor’s Summary
The appellant was charged and convicted with offence of murdering Peters Peter Karel Johan, a Belgian
tourist. The two were friends and the deceased was last seen in the appellant’s company when he
disappeared. Later the deceased’s personal effects were found buried in a room in the appellant’s house
and his body later found buried about 100 meters from the appellant’s home. He appealed on the grounds
that the charge was not proved beyond reasonable doubt.
Held – This being a first appeal, the court had a duty to re-evaluate the evidence, draw its own
conclusions, without of course ignoring the findings and conclusions of the trial court.
The case against the appellant was purely circumstantial. To found a conviction exclusively upon
circumstantial evidence the inculpatory facts must be incompatible with the innocence of the accused and
incapable of explanation upon any other hypotheses than that of guilt. (Simon Musoke v Republic [1958]
EA 715; Teper v Republic [1952] AC 480; Rex v Kipkering Arap Koske and another (1949) EACA 135;
Mkendeshwo v Republic [2002] 1 KLR 461 followed).
The discovery of the deceased’s personal documents in the appellant’s house was a clear indication that
the appellant must have known the fate of the
Page 44 of [2007] 1 EA 43 (CAK)

deceased and that the burial of these and other items was done to cover up and erase any trace of the
deceased person.
It is trite that the failure to prove motive does not per se vitiate the appellant’s conviction as by dint of
the provisions of section 9 of the Penal Code, motive is not one of the elements necessary to prove in a
criminal offence.
After a consideration of the entire evidence on record and submission by counsel the circumstantial
evidence not only irresistibly pointed to the appellant as the person who killed the deceased but also
exclude any co-existing circumstances which would weaken or destroy such inference.
Appeal dismissed.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Mkendeshwo v Republic [2002] 1 KLR 461 – F
Rex v Kipkering Arap Koske and another (1949) EACA 135 – F
Simon Musoke v Republic [1958] EA 715 – F

United Kingdom
Teper v Republic [1952] AC 480 – F

Judgment
Tunoi, Waki and Deverell JJA: Julius Karisa Charo, the appellant, was after trial convicted of murder
and sentenced to death by the High Court of Kenya at Malindi (Ouko J) on 6 February 2006. According
to the information filed by the Attorney-General on behalf of the Republic, the appellant on 12 June 2001
at Mkunguni Village in Malindi Location within Malindi District of the Coast Province murdered Peters
Peter Karel Johan, a Belgian tourist. He shall be referred to hereinafter as “the deceased”.
The facts of the case so far as can be discerned from the evidence tendered in the trial court are simple
and we narrate them. The deceased first came to Kenya in 1998 and visited Malindi where he met the
appellant, a diver in one of the clubs within the beaches of Malindi. They became friends from that
period and when the deceased returned home the two exchanged letters and post cards. The deceased
again visited the appellant at his village on 11 June 2001, but missed him. The following day, he returned
and found the appellant at home. Together they visited a local joint known as Jogolo’s Club where palm
wine was being sold. The club was owned by Gabriel Karisa (PW6). At this club the appellant and his
guest, the deceased, were entertained by traditional music and dance as the rest of the patrons enjoyed
their palm wine. The deceased however, did not join them in drinking. PW6 testified that the two left the
club at about 8:30pm but as to where they went thereafter, no one for certain knows except that about a
month later, it became apparent that the deceased had disappeared and his whereabouts were unknown.
Page 45 of [2007] 1 EA 43 (CAK)

In the course of the investigations a number of people including PW6 and the appellant were arrested.
After their interrogation, the rest of the suspects were released but the appellant was detained for further
interrogation. On 14 July 2001, one month after the deceased was seen alive at the Jogolo’s Club, the
police went to the appellant’s home where they recovered several personal effects of the deceased buried
in one room in the appellant’s house. About 100m from the appellant’s home, on a piece of land
belonging to Charo Katsendezere (PW3), a grave was discovered and from it a body exhumed and moved
to the mortuary for post-mortem examination. Dr Kirasi Olumbe conducted the post-mortem examination
of the body. However, at the time of the hearing Dr Olumbe, it was established, had left the court’s
jurisdiction and the post-mortem report prepared by him was tendered in evidence under the provisions
of sections 33 and 77 of the Evidence Act, by Dr Moses Njue. According to that report, the body was
extensively decomposed and partially reduced to a skeleton, with remnants of soft tissue. All the bones
were intact, except hyoid bone which was not traced. The pathologist noted five fractures of the skull,
multiple fractures on both maxillae and mandible, fracture of radius and ulna bones, fracture of the
mid-shaft of the left clavicle and two superficial stab wounds of the left upper chest measuring 3 cm in
length. In his opinion, the death of the deceased was caused by severe multiple head injuries due to a
sharp object.
In his defence, the appellant confirmed that on 11 June 2001, the deceased visited him and also
returned the following day in the company of one Joseph Karanja. The three of them went for a drink at
Jogolo’s Club where a fracas erupted among the drunken youth forcing the deceased to declare his
intention to leave.
But before he left, the deceased gave the appellant KShs 50 000 as pocket money. The deceased then
left in the company of Joseph Karanja, as his flight back to Belgium was departing from Mombasa at
11pm that evening and that was the last time the appellant saw the deceased. The appellant further
testified that on 13 July 2001, he heard that there were investigations going on regarding the death of the
deceased and in this regard he was shown an anonymous letter in which it was claimed that he had been
involved in his murder. The police took him to Mkunguni Village where the villagers were directed by
the police to exhume a body which was buried under a tree. The appellant denied that any of the items
alleged to have been recovered were actually recovered from his house and instead, he was categorical,
and indeed, maintained that they were collected from the deceased person’s hotel room.
The trial of the appellant was quite protracted. It took about four years. The plea was taken on 10 June
2002 before Ouna J at Mombasa and though the assessors were selected, no trial commenced. Instead,
there were myriad mentions until Ouna J retired over a year later. The case was placed before Sergon J
on 13 May 2003 who fixed the hearing for 23 and 24 July 2003. However, it appears that Mr Ngombo,
the counsel assigned to defend the appellant never attended court leading to his brief being withdrawn.
After very many mentions at Mombasa, the trial was then ordered to commence before Maraga J on 28
and 29 July 2004. Again, it never took place but the case was finally transferred to the High Court of
Kenya at Malindi where Ouko J began the trial on 12 November 2004. It is apparent that despite the most
unsatisfactory manner of
Page 46 of [2007] 1 EA 43 (CAK)

how the trial was commenced, Ouko J put in great industry and a lot of diligence to see that this difficult
case was properly concluded.
We reiterate that this being a first appeal, it is our duty to re-evaluate the evidence, draw our own
conclusions, without of course ignoring the findings and conclusions of the trial court.
The case against the appellant was purely circumstantial, and the learned Judge correctly directed
himself on the relevant law. To found a conviction exclusively upon circumstantial evidence the
inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation
upon any other hypothesis than that of guilt. This was stated so by the predecessor of this Court in Simoni
Musoke v Republic [1958] EA 715, or, as said in Teper v Republic [1952] AC 480:
“It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be
sure that there are no other co-existing circumstances, which would weaken or destroy the inference.”

See also Rex v Kipkering Arap Koske and another (1949) EACA 135 and Mkendeshwo v Republic [2002]
1 KLR 461.
The learned trial Judge in a well-considered judgment held that:
“The circumstantial evidence in this trial is that the accused spent a better part of the 12 June 2001 with the
deceased. He left the club with the deceased. He was not at home after 9pm. The deceased person’s personal
effects were found buried in his house and finally the deceased person’s remains were exhumed from a
shallow grave nearby his house.
All these, in my view, point irresistibly to the participation of the accused in the deceased’s murder.”

Mr Mulongo, counsel for the appellant, submitted that the death of the deceased was not proved beyond
reasonable doubt and that the post-mortem report was inconclusive, especially in that the skeletal remains
were not shown to be those of Peters Peter Karel Johan.
It is clear from the post-mortem report that the pathologist was able to tell from the remnants of soft
tissue on the scalp, neck and hair that the body was that of a person of Caucasian race to which the
deceased belonged. Also from the long bones, dimensions of the skull and its weight the pathologist
could conclude that the remains were of a male aged between 43 and 48 years. He also estimated the time
of death to be between four to six weeks. All these characteristics as far as they could be ascertained
from the deceased’s documents, especially the details of the passport, show that the body belonged to the
deceased. Further, the time of death fell within the period the deceased was at Mkunguni Village. We
would agree with the learned trial Judge that there cannot be any doubt, given the circumstances of this
case, that the body that was exhumed was that of Peters Peter Karel Johan, the deceased.
Mr Mulongo has further submitted that the instances cited by the prosecution as constituting
circumstantial evidence were capable of innocent explanation and that moreover; the deceased did not
spend time with the appellant alone. We have considered all the submissions canvassed by Mr Mulongo
on these. It is true the appellant did not alone socialise with the deceased. However, his other actions
betray him. For example, there is evidence that the appellant was with the deceased during the evening
the deceased disappeared. They had been to Jogolo’s Club and left together at 8:30pm. The appellant’s
siblings, Elvis Bahati
Page 47 of [2007] 1 EA 43 (CAK)

Charo (PW7), Dhambu Charo (PW1) and the appellant’s wife went to look for him at Jogolo’s Club after
9pm but found the club closed and the appellant and the deceased were nowhere. However, when they
returned home they found him without the deceased and he feigned ignorance of where the deceased was.
The prosecution also adduced evidence that personal documents and items belonging to the deceased
were found buried in one of the rooms in a house occupied by the appellant, his wife and their two young
children. In particular, the discovery of the passport, a Belgian National Identification Card, a driving
licence and an air ticket, all in the deceased person’s name. It was not possible for a stranger to have
buried these articles therein without the knowledge of the appellant. We think that the learned trial Judge
was right when he said that this was a clear indication that the appellant must have known the fate of the
deceased and that the burial of these and other items was done to cover up and erase any trace of the
deceased person.
There was overwhelming evidence that the deceased met his demise at the hands of the appellant,
alone or with the aid of others only the appellant would know. There is evidence that PW3 saw the
appellant and the deceased earlier on the fateful day as the appellant was looking for a chicken to buy to
feed his guest. PW6 on his part was emphatic that the deceased was in the company of the appellant
when they went to his club on the day in question at about 3pm. The only other person who accompanied
them there was Juma Kazungu Barawa. It is not known at what stage he left. However, PW6 was certain
that the deceased and the accused left together without a third party. We think that the person so-called
Joseph Karanja does not exist except in the mind of the appellant.
Further, we are satisfied on our evaluation of the evidence that the deceased’s personal documents
were recovered from a hole dug in the appellant’s house and were not collected from a hotel room as
suggested by the appellant.
Mr Mulongo also submitted that the prosecution did not prove motive for the killing. It is trite that the
failure to prove motive does not, per se, vitiate the appellant’s conviction as by dint of the provisions of
section 9 of the Penal Code, motive is not one of the elements necessary to prove in a criminal offence.
We hold, after consideration of the entire evidence on record and submissions by counsel that the
circumstantial evidence not only irresistibly pointed to the appellant as the person who killed the
deceased, but also excluded any co-existing circumstances which would weaken or destroy such
inference.
In the result, we come to the inevitable conclusion that the appellant’s conviction for the offence of
murder contrary to section 203 as read with section 204 of the Penal Code was based on sound and
credible evidence. His appeal therefore fails and is dismissed in its entirety. It is so ordered.
For the appellant:
Mr Mulongo
For the respondent:
Information not available

Church Road Development Company Limited v Barclays Bank of Kenya

Limited and others
 [2007] 1 EA 48 (HCK)

Division: High Court of Kenya at Nairobi

Date of ruling: 27 March 2007
Case Number: 296/06
Before: Waweru J
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Constitutional law – Right to hearing before the court – Whether this right can be stayed by a
criminal court.
[2] Constitutional law – Whether option of appeal is a bar to a constitutional application.

Editor’s Summary
Church Road Development Company Limited filed a constitutional petition challenging the
constitutionality of section 6 of the Civil Procedure Act Chapter 2 and rule 4 of Order XXIV of the Civil
Procedure Rules vis-à-vis section 77(9) of the Constitution of Kenya to the extent to which plaintiff
alleges the two provisions forbid a citizen from seeking interlocutory relief in a suit which has been
stayed for any reason. The plaintiff also filed a chamber summons application seeking, inter alia, an
order that the order of stay of proceedings until the costs in an earlier suit (Church Road Development
Company Limited v Barclays Bank of Kenya Limited and others) are paid be suspended/stayed until
further orders. The respondent however argued that only the Court of Appeal can stay the orders and that
constitutional law issues involve infringements by the State and not involving private contract between
persons.
Held – The plaintiff’s right to lodge the petition under section 84(1) of the Constitution is without
prejudice to any other cause of action available to him. It is therefore not a sufficient answer, as far as
this present application is concerned, that the plaintiff ought to have lodged appeal against the two orders
complained of. It was entitled to bring the petition (and the application within the petition)
notwithstanding its right of appeal. Indeed rule 23 of the Constitutional Rules, 2006 provides that where
a constitutional issue arises in a matter before the High Court, the court seized of the matter may treat
such issue as a preliminary point and shall hear and determine the same. The rule is merely permissive. It
does not make it mandatory that every constitutional issue arising in a matter before the High court must
be raised as a preliminary issue as suggested by the learned counsels for the defendants and the fourth
respondent. There is nothing wrong with a party subsequently raising the issue in a petition under section
84(1) of the Constitution, just as the plaintiff has now done.
The defendants never applied for judgment on costs when the plaintiff discontinued the previous suit
and they have not so applied since. Such costs have not been taxed or agreed. The only thing the
defendants have done so far is to apply for their costs to be taxed on a client/advocate basis. This is
putting the cart before the horse: they ought first to get judgment for those costs. The plaintiff has made
the offer to pay the defendants costs at KShs 200 000. That offer has been rejected by the defendants;
they want KShs 5 million with the
Page 49 of [2007] 1 EA 48 (HCK)

orders of 1 August 2006 and 22 January 2007 in place, the plaintiff must either pay the KShs 5 million
demanded by the defendants or remain shut out of court forever in these proceedings. Even if the plaintiff
were minded to pay the costs, it cannot pay them because the costs have not in effect been awarded as yet
because there is no judgment for them and they have not in any case been ascertained. So the plaintiff
either pays the KShs 5 million demanded by the defendants or remain shut out of court forever. This
cannot be just.
If these facts were brought to the attention of the court during the proceedings leading up to the orders
of 1 August 2006 and 22 January 2007 the court would have been hesitant to make these two orders.
Justice demands that the orders therefore need to be stayed to enable the plaintiff to prosecute the rest of
his application in the Constitutional and Judicial Review Division of the court.
Prayer number five of the application allowed.

Cases referred to in ruling

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Church Road Development Company Limited v Barclays Bank of Kenya Limited and others Milimani
High Court civil case number 55 of 2005
Church Road Development Company Limited v Barclays Bank of Kenya Limited and others Milimani
High Court civil case number 55 of 2006
Church Road Development Company Limited v Barclays Bank of Kenya Limited and others Nairobi civil
application number 343 of 2005
Mecol Limited v The Attorney-General and others Nairobi High Court miscellaneous civil application
number 1784 of 2004 (UR)
Rev Jeremiah Muku v Methodist Church of Kenya Registered Trustees and another Meru High Court
civil case number 80 of 2005 (UR)

Ruling
Waweru J: Church Road Development Company Limited (hereinafter called the plaintiff) has by
petition dated 23 February 2007 filed herein challenged the constitutionality of section 6 of the Civil
Procedure Act, Chapter 21 and Order XXIV, rule 4 of the Civil Procedure Rules vis-à-vis section 77(9)
of the Constitution of Kenya to the extent to which, the plaintiff alleges, the two provisions forbid a
citizen from seeking interlocutory relief in a suit which has been stayed for any reason. It has sought a
declaration to that effect. A declaration is also sought that the orders of the court issued herein on 1
August 2006 and 22 January 2007 (staying any further proceedings) contravene the plaintiff’s right to
protection of the law under section 77 of the Constitution. Other declarations and orders are also sought.
Together with the petition the plaintiff filed chamber summons of the same date seeking the following
order, inter alia:
Page 50 of [2007] 1 EA 48 (HCK)
(1) That the (orders of ) stay of proceedings in this suit be suspended/stayed until further order of the
court.

This ruling is concerned only with that prayer number five. I heard arguments on the prayer on 9 March
2007. The prayer seeks, in effect, temporary stay of the orders of this Court of 1 August 2006 and 22
January 2007 (Ochieng’ J). Those orders were:
Of 1 August 2006:
“Accordingly, in exercise of the authority bestowed upon this Court by Order 24 rule 4 of the Civil Procedure
Rules, this suit shall be stayed until the costs in High Court civil case number 55 of 2005 are paid.”

Of 22 January 2007:
“…it is hereby reiterated that until the plaintiff pays the costs in High Court civil case number 55 of 2005, it
will not be permitted to undertake any further proceedings in this case…”

The plaintiff seeks stay of those orders to enable it to proceed with the other prayers in the application.
The grounds for the entire application are:
(a) That through the order made on 1 August 2006, the petitioner’s right under section 77 of the
Constitution, to the protection of the law through effective access to this Court, has been
contravened by the fourth respondent.
(b) That on 1 August 2006 the first to third respondents obtained a stay of further proceedings by
deceiving the court that they only wanted to be paid their costs whilst the real object was to buy
time to perpetrate a fraud on the petitioner.
(c) That the respondents have abused the process of this Court and sold the suit property to the fourth
respondent, during the pendency of this suit.
(d) That unless it is restrained, the fourth respondent will dispose of the suit property and render the
petitioner’s right to the protection of the law nugatory.
(e) That the petitioner, who made an application in time, was unable to obtain an injunction to prevent
the sale of Land Reference number 1870/IV/14, because of the said order of 1 August 2006.
(f ) That the petitioner was unable to obtain relief for the setting aside, administratively, of judgment
by a Deputy Registrar.
(g) That even after the purported sale of its said property, Land Reference number 1870/IV/14, the
petitioner has continued to be denied access to this Court.
(h) That the first to third respondents have prosecuted this suit in an oppressive manner.
Barclays Bank of Kenya Limited, David Mutuku and Samuel Njihia (all hereinafter referred to as the
defendants) have filed a notice of preliminary objection dated 1 March 2007. It was agreed that the notice
of preliminary objection be taken as their answer to prayer number five of the application, and they
argued it as such. The grounds set out in the notice of preliminary objection are:
(1) That the application is an abuse of the court process and should be struck out with costs as it
expressly contravenes the court’s orders of 1 August
Page 51 of [2007] 1 EA 48 (HCK)

2006 and 22 January 2007, which expressly stayed the present suit and proceedings until the costs
in the earlier suit, Church Road Development Company Limited v Barclays Bank of Kenya Limited
and others Milimani High Court civil case number 55 of 2005 are paid.
(2) That no leave was obtained to file the present application in light of the court orders of 1 August
2006 and 22 January 2007, considering that the costs have not been paid.
(3) That the applicant has deliberately refused to exercise his constitutional right of appeal to the
Court of Appeal from the orders made on 1 August 2006 and 22 January 2007, and cannot now
seek injunctive relief in the Constitutional Court as this amounts to an abuse of the court process
as the court is being asked to grant interim relief on the suit property which had in the past been
denied by this Court and the Court of Appeal as set out below.
(4) That only the Court of Appeal can stay the orders made on 1 August 2006 and 22 January 2007, as
the Constitutional Court can only determine infringements against the liberties of an individual by
the State, and not sit on appeal on matters involving private contracts between persons.
(5) That the application contravenes Gazette Notice number 301 published on 19 January 2007
(Practice Directions on the Divisions of the High Court of Kenya at Nairobi) that requires such
matters to be filed in the Constitutional and Judicial Review Division. As such, the Commercial
and Tax Division of the High Court does not have jurisdiction to entertain the present application.
(6) That the present application is res judicata, as identical issues were dealt with in the earlier
injunction application which was dismissed with costs by Emukule J in Church Road Development
Company Limited v Barclays Bank of Kenya Limited and others Milimani High Court civil case
number 55 of 2006.
(7) That the injunction application filed in the Court of Appeal in Churchroad Development Company
Limited v Barclays Bank of Kenya Limited and others Nairobi civil application number 343 of
2005, seeking an injunction pending the determination of the appeal from the ruling of Emukule J
was also dismissed with costs on 17 February 2006.
(8) That the plaintiff’s equity of redemption has been extinguished in accordance with section 60 of
the Transfer of Property Act and no injunctive relief can be sought against the respondent.
(9) That the plaint has not been amended to join the new parties to the suit, nor has any amendment
been made to set aside the sale or seek damages.
(10) That the costs of the application should be ordered to be paid by the plaintiff’s advocates
personally for abusing the court process.
Although the fourth respondent, Wasini Resorts Limited, had stated through its learned counsel on 2
March 2007 that it was concerned only with prayers numbers one, six and seven of the application, it
nevertheless opposed prayer number five at the hearing of that prayer on 9 March 2007, upon the grounds
set out at paragraph 20(a), (b), (c), (d) and (f ) of the replying affidavit sworn by one Edward Muriu
Kamau, a director of the fourth respondent, on 2 March 2007 and filed on the same date. Those grounds
are:
Page 52 of [2007] 1 EA 48 (HCK)

20 (a) That the applicant has not demonstrated that it was denied a hearing when the application
for stay was heard.
(b) That the applicant has not demonstrated that the court in its rulings staying the suit and
upholding the preliminary objection thereof acted contrary to the Constitution, the law, any
rules of procedure or natural justice, or in any way violated any known principles of law.
(c) That the applicant had, and has, the right to appeal against the decisions of this Court
complained of, and the said decisions do not in any way fetter its right of appeal, including
the right to seek the reversal of the stay orders in question. Its claim that it has been denied
the right to access the courts is therefore spurious, baseless and mischievous.
(d) That the proper time for challenging the constitutionality of section 6 of Chapter 21 was at
the hearing of the application for stay where the same would have been argued as a
preliminary point as envisaged by rule 23 of the Constitution of Kenya (Supervisory
Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High
Court Practice and Procedure Rules, 2006 (hereinafter referred to as the Constitutional
Rules, 2006).
(f ) That the court having already ruled on the application for stay, and the applicant having had
an opportunity to raise the alleged constitutional issue and failed to do so, the court is
functus officio on the matter.
The fifth and sixth respondents did not appear at the hearing of the application, though they had been
duly served. Learned counsel for the seventh respondent stated that the seventh respondent was
concerned only with prayer number four and eight of the application, but he nevertheless associated
himself with the submissions made on behalf of the defendants and the fourth respondent.
The submissions of Dr Kamau Kuria for the plaintiff were as follows. Rule 20 of the Constitutional
Rules, 2006 give the court power to grant conservatory or interim orders. He further submitted that unless
the interim relief sought is granted, the whole of the plaintiff’s right under section 77(9) of the
Constitution will be rendered nugatory in that the plaintiff will be unable to stop the fourth respondent
(to which the suit property has been transferred during the pendency of an application for injunction – by
chamber summons dated 3 November 2006), from transferring the same property beyond the reach of the
plaintiff. It will also be open to the seventh respondent to exercise the rights of a purported chargee
during pendency of the petition.
Dr Kuria also submitted that the petitioner’s case will be that the defendants have transferred the suit
property to the fourth respondent fraudulently as a consequence of which the fourth respondent does not
have a good title to the property; and that the charging of the property by the fourth respondent to the
seventh respondent is fraudulent within the meaning of section 23 of the Registration of Titles Act,
Chapter 281, and hence the charge is also void. Dr Kuria further submitted that under section 84(2) of the
Constitution this Court has power to grant a conservatory order, which power the court has exercised
from time to time. He referred to the case of Rev Jeremiah Muku v Methodist Church of Kenya
Registered Trustees and another Meru High Court civil case number 80 of 2005 (UR). In that case the
learned Judge (Sitati J) granted an
Page 53 of [2007] 1 EA 48 (HCK)

order of stay of execution of preliminary decree in a suit pending hearing and determination of a petition
under section 84 of the Constitution.
It was Dr Kuria’s further argument that the orders of stay herein (dated 1 August 2006 and 22 January
2007) challenged in the petition cannot be absolute; the court has power to make interlocutory orders in a
suit that has been stayed once a petition is brought under section 84 of the Constitution, as the
Constitution is the supreme law of the land. He referred to the case of Mecol Limited v The
Attorney-General and others Nairobi High Court miscellaneous civil application number 1784 of 2004
(UR). In that case a three-Judge bench of the court declared an award of the Industrial Court of Kenya to
be null and void for not having been reached in accordance with the provisions of the Constitution, rule
of law and the Trade Disputes Act. In the petition herein, further submitted by Dr Kuria, the plaintiff’s
case is that section 6 of the Civil Procedure Act and Order XXIV, rule 4 of the Civil Procedure Rules are
ultra vires sections 77(9) and 84 of the Constitution to the extent to which they authorise refusal to hear
interlocutory applications and the granting of interlocutory relief because they render worthless the right
to come to court granted by the said constitutional provisions. The petition challenges the
constitutionality of the orders of 1 August 2006 and 22 January 2007. Dr Kuria also referred to other
cases a consideration of which will be necessary only at the hearing of the petition.
Dr Kuria also submitted that the subject-matter of the petition is the plaintiff’s right of access to the
court and that the court has power to preserve that subject-matter, pending hearing and disposal of the
petition. He pointed out that the two orders of 1 August 2006 and 22 January 2007 have placed the
plaintiff in an impossible situation: it cannot access the court in this matter unless and until it pays costs
in the earlier case, High Court civil case number 55 of 2006; those costs have not been ascertained; the
persons entitled to those costs have not even applied for judgment for the costs as required by the rules;
the plaintiff has offered KShs 200 000 to meet those costs, but the defendants want KShs 5 million; so,
either the plaintiff pays the KShs 5 million or it is locked out of court until the defendants’ costs in High
Court civil case number 55 of 2006 are duly sought and ascertained. In Dr Kuria’s view the plaintiff is
being held at ransom by the defendants.
Mr Allan Gichuhi, learned counsel for the defendants, submitted as follows:
(1) The plaintiff could have appealed to the Court of Appeal against the two orders of 1 August 2006
and 22 January 2007; it did not. It has access to the Court of Appeal as guaranteed by the
Constitution; it has chosen not to exercise that right.
(2) There has been considerable delay in bringing the application, that delay being about seven
months. No explanation for this delay has been forthcoming.
(3) While conceding that no request for judgment for costs as required by Order XXIV, rule 3 of the
Civil Procedure Rules has been made by the defendants, Mr Gichuhi submitted that the defendants
were waiting for disposal of the application dated 5 September 2006 (for taxation of the
defendants’ costs on an advocate/client basis). He further submitted that the said application was
made in good faith and delay in disposal thereof was occasioned by the plaintiff’s preliminary
objection to the application. But
Page 54 of [2007] 1 EA 48 (HCK)

he conceded that the plaintiff cannot pay the defendants’ costs as of now, even if it wanted to,
because the same have not been ascertained.
(4) A Judge cannot sit, or appear to sit, on appeal over an order of a Judge of co-ordinate jurisdiction.
Mr Mungai, learned counsel for the fourth respondent, submitted as follows:
(1) The court is functus officio. What the plaintiff should have done was to appeal against the orders of
1 August 2006 and 22 January 2007. It chose not to.
(2) The constitutional issues now raised in the petition ought to have been raised before Ochieng J at
the hearing of the applications that resulted in the two aforesaid orders as provided for in rule 23 of
the Constitutional Rules, 2006.
(3) The orders of 1 August 2006 and 22 January 2007 did not fetter the plaintiff’s right to seek before
the Court of Appeal the orders of interlocutory injunction now sought in the present application.
The Court of Appeal has original jurisdiction to grant those orders. Mr Mungai pointed out that in
fact the plaintiff had in the previous suit approached the Court of Appeal in that regard, albeit
unsuccessfully.
In his reply Dr Kuria submitted as follows:
(1) Any person who feels that his fundamental rights under the Constitution have been breached by an
order of court has the right under section 84 of our Constitution to petition the court in that regard,
notwithstanding that he could have appealed against such order. Section 84 of the Constitution
creates a much wider human rights jurisdiction than that obtained in ordinary appeals.
(2) The right to access the court includes the right to withdraw a suit and file a fresh suit.
(3) The defendants have not satisfactorily explained why they have not sought judgment for costs and
taxation thereof in order for the plaintiff to know what costs it ought to pay.
Those then are the arguments of learned counsels. I have carefully considered them. I must make it clear
at the outset that I heard this application only because Ochieng J was no longer available to hear it,
having been transferred to another station. He would have been best placed to hear it. Learned counsels
have submitted on various matters that are not necessary to decide at this stage. I will consider only those
matters that are necessary for a decision on prayer number five of the application.
As already stated elsewhere, the order of stay sought in prayer number five is to enable the plaintiff to
urge the other prayers in the application by chamber summons dated 23 February 2007. The application
is filed in the petition. The petition is brought under section 84(1) of the Constitution. The plaintiff
alleges that its fundamental right to protection of the law under section 77(9) of the Constitution has been
violated by the orders of 1 August 2006 and 22 January 2007 in that the said orders have restricted its
right of access to the court. Section 84(1) of the Constitution provides as follows:
“84(1) Subject to sub-section (6), if a person alleges that any of the provisions of sections 70 to 83 (inclusive)
has been, is being or is likely to be contravened
Page 55 of [2007] 1 EA 48 (HCK)
in relation to him (or, in the case of a person who is detained, if another person alleges a contravention
in relation to the detained person), then, without prejudice to any other action with respect to the same
matter which is lawfully available, that person (or that other person) may apply to the High Court for
redress.”

It is then immediately clear that the plaintiff’s right to lodge the petition under section 84(1) of the
Constitution is without prejudice to any other cause of action available to him. It is therefore not a
sufficient answer, as far as this present application is concerned, that the plaintiff ought to have lodged an
appeal against the two orders complained of. It was entitled to bring the petition (and the application
within the petition) notwithstanding its right of appeal. Indeed rule 23 of the Constitutional Rules, 2006
provides that where a constitutional issue arises in a matter before the High Court, the court seized of the
matter may treat such issue as a preliminary point and shall hear and determine the same. This rule is
merely permissive. It does not make it mandatory that every constitutional issue arising in a matter before
the High Court must be raised as a preliminary issue as suggested by learned counsels for the defendants
and the fourth respondent. I see nothing wrong with a party subsequently raising the issue in a petition
under section 84(1) of the Constitution, just as the plaintiff has now done.
But I am here concerned more with the dictates of justice than with anything else. The plaintiff
withdrew the previous suit under Order XXIV of the Civil Procedure Rules. Rule 3 of that Order
provides:
“(3) Upon request in writing by any defendant the registrar shall sign judgment for the costs of a suit which
has been wholly discontinued, and any defendant may apply at the hearing for the costs of any part of
the claim against him which has been withdrawn.”

It has been conceded that the defendants never applied for judgment on costs when the suit was
discontinued, and that they have not so applied since. Needless to say, such costs have not been taxed or
agreed. The only thing the defendants have done so far is to apply for their costs to be taxed on a
client/advocate basis. To my mind, this is putting the cart before the horse: they ought first to get
judgment for those costs. The plaintiff has made an offer to pay the defendants’ costs at KShs 200 000.
That offer has been rejected by the defendants; they want KShs 5 million. With the orders of 1 August
2006 and 22 January 2007 in place, the plaintiff must either pay the KShs 5 million demanded by the
defendants, or remain shut out of court forever in these proceedings. So the situation is this: the two
orders in question stayed the proceedings until the plaintiff pays the defendants’ costs of the previous
suit. The defendants have not sought judgment for those costs as required by Order XXIV, rule 4. Those
costs have not in any event been taxed. Therefore, even if the plaintiff were minded to pay the costs, it
cannot pay them because the costs have not, in effect, been awarded as yet because there is no judgment
for them, and they have not in any case been ascertained. So, what is the plaintiff to do? As already
observed, it either pays the KShs 5 million demanded by the defendants or remain shut out of court
forever. This cannot be just. It appears that all these matters were not brought to the attention of the court
during the proceedings leading up to the orders of 1 August 2006 and 22 January 2007. They should have
been brought to the attention of the court; if they had, I dare think that the court would have been hesitant
to make the two orders. But the
Page 56 of [2007] 1 EA 48 (HCK)

fact that they were not brought to the attention of the court should not deter the court from doing justice
in the matter. I must make it clear here that I am not dealing with an application for review, and of
course, I am not sitting on appeal over the orders of a brother Judge of co-ordinate jurisdiction. I am here
dealing with part of an application made within a petition brought, validly in my view, under section
84(1) of the Constitution. In view of what I have stated above, I have no hesitation at all in allowing
prayer number five of the chamber summons dated 23 February 2007, to enable the plaintiff to prosecute
the rest of the application in the Constitutional and Judicial Review Division of this Court. Justice
demands no less. Prayer number five of the application is therefore hereby allowed. The orders of 1
August 2006 and 22 January 2007 are hereby stayed until the further order of the court. Costs of the
application shall be in the cause, the cause here being the petition. Orders accordingly.
For the appellant:
Dr Kamau Kuria
For the respondent:
Mr Allan Gichuhi
For the fourth respondent:
Mr Mungai

David Thiongo t/a Welcome General Stores v Market Fancy Emporium

[2007] 1 EA 56 (CAK)

Division: Court of Appeal of Kenya at Nairobi

Date of ruling: 30 March 2007
Case Number: 47/07
Before: Tunoi, O’kubasu and Githinji JJA
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Court of Appeal Rules – Jurisdiction – Whether Court of Appeal has jurisdiction to stay of execution
of order made in Subordinate Court.

Editor’s Summary
The applicant filed an application for setting aside ex parte order made against it but the same was
dismissed. Thereafter it filed an appeal in the High Court and an application for stay of execution of the
ruling and order of the trial Magistrate. The latter application was dismissed and it further appealed to the
Court of Appeal. Here an issue arose whether the Court of Appeal has the jurisdiction to stay of
execution of an order of the Subordinate Court, which is the subject of an appeal in the High Court.
Held – The Court of Appeal Rules are made in pursuance of the Appellate Jurisdiction Act (Chapter 9),
which Act confers on the Court of Appeal jurisdiction to hear appeals from the High Court and for
purposes incidental thereto. It is obvious from rule 74(1) as read with rule 74(6) that a notice of appeal
relates to a decision of the Superior Court.
Page 57 of [2007] 1 EA 56 (CAK)

It is the lodging of the notice of appeal which gives the Court of Appeal jurisdiction to grant any order
of stay of execution under rule 5(2)(b) of the rules. It follows therefore that the stay of execution can only
relate to the subject matter of the notice of appeal which is the decision of the Superior Court – that is the
decision appealed from. The jurisdiction of the Court of Appeal to grant a stay of execution, an
injunction or stay of proceedings can only be derived from its powers under rule 5(2)(b). The stay of
execution asked for does not relate to what the High Court ordered to be done or not to be done and the
Court of Appeal has no jurisdiction to entertain it. (Western College of Arts and Applied Sciences v
Oranga and others [1976] KLR 63 applied).
The Magistrate did not order any party to do anything or refrain from doing anything or to pay any
sum. Therefore, there is nothing which can be executed from the dismissal order except the order for
payment of costs. (Western College of Arts and Applied Sciences v Oranga and others [1976] KLR 63
applied).

Cases referred to in ruling

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Western College of Arts and Applied Sciences v Oranga and others [1976] KLR 63 – AP

Ruling
Tunoi, O’Kubasu and Githinji JJA: This is an application under rule 5(2)(b) of the Court of Appeal
Rules (Rules) for an order that:
“… the execution of the ruling and order of Honourable Mr El Kindy delivered on 15 November 2005 be
stayed pending the lodging, hearing and determination of the intended appeal against the ruling and order of
Honourable Mr Justice Visram delivered on 28 February 2007.”

The applicant has been a tenant of the respondent on Land Reference number 209/2648, Muindi Mbingu
Street, Nairobi.
In or about 2004 the respondent sued the applicant in the Principal Magistrate’s Court at Milimani
Commercial Courts, Nairobi-civil suit number 12611 of 2004, for vacant possession on the ground that
the applicant had neither complied with the notice to terminate the tenancy nor filed a reference in the
Business Premises Rent Tribunal. The respondent filed a defence and subsequently filed an application
for summary judgment which was heard by El Kindy, Ag Senior Principal Magistrate, and allowed in a
terse ruling on 13 March 2005.
On 13 April 2005, the applicant filed an application for setting aside the ex parte judgment but it
seems that the same was dismissed on 15 November 2005. On 18 November 2005, the applicant filed
civil appeal number 914 of 2005 in the Superior Court against the ruling of El Kindy dated 15 November
2005. On the same day the applicant filed an application in the Superior Court in the same suit for stay of
execution of the ruling and order of the trial Magistrate. The application was heard by Visram J and
dismissed on 28 February 2007. The
Page 58 of [2007] 1 EA 56 (CAK)

applicant was, however, granted leave to appeal. The applicant has filed a notice of appeal indicating an
intention to appeal from the decision of Visram J. The applicant now seeks an order of stay of the
decision of the El Kindy delivered on 15 November 2005 pending the hearing of the appeal against the
decision of Visram J.
When the application came for hearing before us, we doubted whether we have jurisdiction to stay of
execution of an order of the Subordinate Court which is the subject of an appeal in the Superior Court.
Mr Majanja, learned counsel for the applicant submitted that rule 5(2)(b) does not limit our jurisdiction
to orders under appeal before this Court and that this Court has jurisdiction to stay any order that may
affect the appeal. Mr Gitau Singh, learned counsel for the respondent, on the other hand, submitted that
this Court has no jurisdiction to deal directly with orders of the Subordinate Court and has only
jurisdiction to stay the orders of Superior Court.
We have considered the matter. The Court of Appeal Rules are made in pursuance of the Appellate
Jurisdiction Act (Chapter 9) which Act confers on the Court of Appeal jurisdiction to hear appeals from
the High Court and for purposes incidental thereto.
Rule 5(2)(b) of the rules provides:
“5(1) …
5(2) Subject to the provisions of sub–rule 1, the institution of an appeal shall not operate to suspend any
sentence or to stay execution but the court may:
(b) In civil proceedings, where a notice of appeal has been lodged in accordance with rule 74 order
a stay of execution, an injunction or stay of any further proceedings on such terms as the court
may think just.”

It is obvious from rule 74(1) as read with rule 74(6), that a notice of appeal relates to a decision of the
Superior Court. Indeed the notice of appeal filed herein relates to the decision of Visram J dated 28
February 2007. It is the lodging of the notice of appeal which gives this Court jurisdiction to grant any
order of stay of execution under rule 5(2)(b) of the Rules. It follows therefore that the stay of execution
can only relate to the subject matter of the notice of appeal which is the decision of the Superior Court –
that is the decision appealed from. The case of Western College of Arts and Applied Sciences v Oranga
and others [1976] KLR 63, illustrates clearly that the jurisdiction of this Court to grant a stay of
execution, an injunction or stay of proceedings can only be derived from its powers under rule 5(2)(b). In
that case, the Superior Court dismissed an action with costs. The applicant appealed and pending appeal,
sought a temporary injunction restraining the respondents from operating a bank account until the
determination of the appeal and a stay of execution. At the material time, the then rule 5(1) of the Court
of Appeal Rules did not specifically give jurisdiction to this Court to grant an order of injunction pending
appeal. This Court has now jurisdiction to grant an order of injunction pending appeal. Law VP
delivering the leading judgment with which the rest of the members of the court concurred, said in part at
page 66 paragraph D, E:
“In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing
anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court, in an
application for stay, to enforce or to refrain by injunction.
Page 59 of [2007] 1 EA 56 (CAK)
It appears to me therefore that what this Court is now being asked to do is to order the issue of a temporary
injunction in respect of a matter which is not directly connected with a stay of execution of judgment – the
subject of the intended appeal.”

The decision of El Kindy, Acting Senior Principal Magistrate is not the subject of the intended appeal.
We would respectfully adopt the words of Mustafa JA in that case, at page 67 paragraph C, that the stay
of execution asked for does not relate to what the High Court ordered to be done or not to be done and
this Court has no jurisdiction to entertain it.
Lastly, El Kindy merely dismissed the application to set aside the summary judgment. By parity of
reasoning in Western College of Arts and Applied Sciences (supra) El Kindy did not order any party to
do anything or refrain from doing anything or to pay any sum. Therefore, there is nothing which can be
executed from the dismissal order except the order for payment of costs.
Accordingly, the application is dismissed with costs to the respondent.
For the appellant:
Mr Majanja
For the respondent
Mr Gitau Singh

Dibagula v Republic
[2007] 1 EA 59 (CAT)

Division: Court of Appeal of Tanzania at Dar-Es-Salaam

Date of judgment: 14 March 2003
Case Number: 53/01
Before: Samatta CJ, Mroso and Munuo JJA
Sourced by: LawAfrica
Summarised by: H Majamba

[1] Constitution – Fundamental rights – Right to freedom of religion – Whether the making of an
utterance that Jesus Christ is not the Son of God constitutes a criminal offence under section 129 of the
Penal Code (Chapter 16).
[2] Evidence – Courts must evaluate evidence tendered before it and give reasons for each ingredient of
an offence – Proof – Whether prosecution had proved its case beyond reasonable doubt.
[3] Criminal law – Mens rea – Whether the lower court had directed itself to the question of mens rea.

Editor’s Summary
The appellant, a member of an Islamic organisation in Morogoro and some of his colleagues had
organised a meeting. At the meeting, the appellant had uttered the words “Yesu si Mwana wa Mungu, ni
jina la mtu kama mwingine tu.” literally interpreted – “Jesus is not the Son of God, it is a name, just like
any other.” He was arrested and charged at the Morogoro District Court with the offence of deliberately
uttering words with an intention of wounding the religious feelings of Christian worshippers. The
Magistrate convicted the appellant and sentenced him to eighteen months imprisonment. The High Court
conducted a revisional proceeding in respect of the case and only heard the Director of
Page 60 of [2007] 1 EA 59 (CAT)

Public Prosecution. The appellant was not present. The High Court Judge was satisfied that the appellant
had been rightly convicted but found that the penalty imposed was illegal as it exceeded the maximum
sentence of twelve months fixed by the law. The Judge set aside the sentence and substituted it, resulting
in the immediate release of the appellant from custody. The appellant appealed to the Judge’s decision.
He was of the view that the judgment did not exonerate him entirely from the offence he had been
charged with.
Held – A purely religious question cannot fall for determination by a court of law. The primacy of the
interest of the nation and security of the State must be read into every provision dealing with fundamental
rights. The exercise of the freedom of religion is subject to the requirements of public peace, morality
and good order which are requisites of the common good of society. Neither the trial Judge nor the
subordinate Magistrate applied their minds to the question of mens rea. The prosecution in the lower
court had not proved its case beyond reasonable doubt. No direct or circumstantial evidence was
presented to justify the conclusion or inference that the appellant had a deliberate intention to wound the
religious feelings of others. The appellant was on a mission to propagate his own religion.
Appeal allowed, sentence quashed.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Amirali Ismail v Regina 1 TLR 370
(T) Lobozi S/O Katabaro v R (1956) 23 EACA 583
Lutter Symphorian Nelson v Attorney-General Ibrahim Said Msabaha civil appeal number 24 of 1999
(UR)
Wily John v Republic (1956) 23 EACA 509

United Kingdom
John v Rees and others [1969] 2 All ER 274
R v University of Cambridge 1723 I Stra 557

Other
Rupan Deol Bajaj and another v Kanwar Pal Singh Gill and another [1995] Supp 4 SCR 237
The Chairman, Railway Board and others v Chandrima Das and others 1 SCR 480

Judgment
Samatta CJ: This is an appeal from a decision of the High Court (Chipeta J as he then was) affirming,
while exercising revisional jurisdiction, a conviction for uttering words with the intent to wound religious
feelings. The appellant, Hamisi Rajabu Dibagula, had been convicted of that offence by the District
Court of Morogoro, which sentenced him to 18 months’ imprisonment. The learned Judge set aside that
sentence and substituted therefor such sentence as
Page 61 of [2007] 1 EA 59 (CAT)

was to result in the immediate release of the appellant from custody. The appeal raises one or two
questions of considerable public importance concerning the limits, if any, of the right to freedom of
religion, guaranteed under article 19 of the Constitution of the United Republic of Tanzania, 1977,
hereinafter referred to as “the Constitution”.
It is necessary, before we embark upon the task of examining the merits or otherwise the appeal, to
state the facts of the case. They are, happily, uncomplicated. They may, we think, be outlined as follows.
In the afternoon of 16 March 2000, the appellant, a member of an Islamic organisation known as
Almallid, and some of his colleagues organised a religious public meeting at Chamwino in Morogoro
Town. They had secured a “permit” issued by the Police Officer Commanding District, to organise the
meeting. Acting on some information he had received from a member of the public, the regional CID
officer of Morogoro region, proceeded to the place where the meeting was taking place. He found the
appellant addressing the meeting. At that point in time the appellant was saying “Yesu Mwana wa
Mungu, ni jina la mtu kama mtu mwingine tu.”
The CID officer had no doubt that the utterance constituted a criminal offence under section 129 of
the Penal Code. He proceeded to arrest the appellant (his colleagues took to their heels and vanished into
thin air) and took him to a police station. Four days later, the appellant was taken before the District
Court where a charge under the aforementioned section was laid at his door. It was alleged in the
particulars of offence that the appellant:
“On the 16 March 2000 at about 6pm at Charnwino area within the municipality, district and region of
Morogoro, with deliberate intention did utter words to wit: Yesu si Mwana wa Mungu bali ni jina, religious
words which are wounding (sic) the feelings of Christian worshippers.”

Section 129 of the Penal Code provides:

“129 Any person who, with the deliberate intention of wounding the religious feelings of any person, utters
any word, or makes any sound in the hearing of that person, or makes any gesture in the sight of that
person, or places any object in the sight of that person, is guilty of a misdemeanour, and is liable to
imprisonment for one year.”

The appellant protested his innocence. He denied to have preached “against the Christian religion”. One
Athuman Abdallah, his only witness, told the trial Magistrate, that the appellant had urged non-Muslims
to embrace Islamic faith and pronounce that Jesus Christ is not the Son of God. At the end of the trial, the
learned Magistrate entertained no doubt of reasonable kind that the evidence laid before her proved the
appellant’s alleged guilt. After entering a conviction as already pointed out, she sentenced the appellant
to eighteen months’ imprisonment. The High Court, upon becoming aware of the, decision, and in
exercise of its powers under section 372 of the Criminal Procedure Act 1985, hereinafter referred to as
“the Act”, called for the record of the case for the purpose of satisfying itself as to the correctness of the
decision. The court later proceeded to conduct a revisional proceeding in respect of the case. Only the
Director of Public Prosecutions was given an opportunity to be heard at that proceeding. At the end of it
the learned Judge was satisfied that the appellant has been rightly convicted. He was, however, of the
opinion, a correct one in our view, that the sentence of eighteen months’ imprisonment was illegal
because it exceeded the maximum sentence of twelve months
Page 62 of [2007] 1 EA 59 (CAT)

imprisonment fixed by law for the offence. He set it aside and, as already stated, substituted therefor such
sentence, as was to result in the appellant’s immediate release from custody.
Consequently, the appellant regained his personal liberty. He believed, however) that the learned
Judge’s decision did not constitute a complete triumph for justice. Hence the instant appeal.
The learned Judge’s decision is impugned on the following five grounds:
(1) The revising Judge erred in law and in fact by holding that the prosecution in [the] lower court did
prove its case beyond reasonable doubt.
(2) The revising Judge erred in law by agreeing with the submission of the State Attorney that the
prosecution in the trial court proved the case beyond reasonable doubt without evaluating the
evidence tendered in the lower court and assigning reasons therefor.
(3) The revising Judge erred in law by not considering the fact that the nature of the offence the
appellant was convicted of, pre-supposes the existence of a person who was directly wounded by
the words uttered by the appellant or that the prosecution should be able to prove who and how a
person would have his feelings injured.
(4) The revising Judge erred in law in embarking on revisional proceedings in the presence of the
Republic but in the absence of the accused person whose legal interests were being looked into by
the court.
(5) The court erred in law by holding that there was a judgment of the trial court while in fact, the
so-called judgment was in law, not a judgment.
Speaking through his advocate, Mr Taslima, who was assisted by Professor Safari, the appellant has
strongly urged us to quash his conviction. Mr Mlipano State attorney, declined to support it.
Is Jesus Christ the Son of God? Millions of persons would sharply disagree as to the correct answer to
this question. Some would entertain no doubt whatsoever that an answer in the affirmative is the correct
one; to others, “no” would, without the slightest doubt, be the correct answer. Whichever is the correct
answer, the question is a purely religious one and, therefore, cannot fall for determination by a court of
law. It is not, therefore, one of the questions which the instant appeal can possibly answer. The pivotal
issue before us is whether merely making an utterance in the hearing of another person that Jesus Christ
is not the Son of God constitutes a criminal offence under section 129 of the Penal Code.
Before we proceed to examine the merits or otherwise of the arguments addressed to us by the learned
advocates, we deem it useful to state some of the general principles governing the enjoyment of the
freedom of religion in this country. The right to that freedom is guaranteed under article 19 of the
Constitution, which reads:
“19 (1) Every person has the right to the freedom of thought or conscience, belief or faith, and choice
in matters of religion, including the freedom to change his religion or faith.
(2) Without prejudice to the relevant laws of the United Republic the profession of religion,
worship and propagation of religion shall be free and a private affair of an individual; and the
affairs and management of religious bodies shall not be part of the activities of the State
authority.
Page 63 of [2007] 1 EA 59 (CAT)
(3) In this article reference to the word ‘religion’ shall be construed as including reference to
religious denominations, and cognate expressions shall be construed accordingly.”

The freedom enshrined in this article includes the right to profess, practise and propagate religion. Since
profession, practice or propagation of religious faith, belief or worship is also a form or manifestation of
a person’s expression, it must be correct to say, as we do, that freedom of religion is also impliedly
guaranteed under article 18(1) of the Constitution. That freedom, like other freedoms, is not an absolute
right. The exercise of it, just as the exercise of other freedoms, is subject to the requirements of public
peace, morality and good order, which are requisites of the common good of society. As was pointed out
by the Supreme Court of India in The Chairman, Railway Board and others v Chandrima Das and others
1 SCR 480, at pages 501–502, primacy of the interest of the nation and security of State must be read into
every provision dealing with fundamental rights. The freedom to transmit or spread one’s religion or to
proselytise has to be exercised reasonably, that is to say, in a manner which recognises the rights,
including religious rights, of other persons. It must be exercised in a manner which demonstrates respect
for the freedoms of persons belonging to other religions, atheists and agnostics. In a human society,
rights may be in conflict; they must, therefore, be subject to law. As far as human rights and freedoms are
concerned, this legal position is succinctly stated in article 30(1) of the Constitution, which provides:
“30(1) The human rights and freedoms, the principles of which are set out in this constitution, shall not be
exercised by a person in a manner that causes interference with or curtailment of the rights and
freedoms of other persons or of the public interest.”

Having stated these principles, we propose now to deal with the arguments addressed to us. But before
we do so, we desire to observe that the charge which was laid at the door of the appellant in this case was
not a model of accuracy or elegance in charge drafting. Some vital words of section 129 of the Penal
Code concerning mens rea were omitted from the particulars of offence. It leaps to the eye that the words
of wounding the religious feelings of any person are missing there. Did this omission occasion any
miscarriage of justice? We think not. First, the wording of the statement of offence, section and law in
the charge reasonably informed the appellant of the requisite mens rea of the offence he was charged
with. Secondly, judging from the tenor of his defence during cross-examination of the regional CID
officer and PW41 D/CPL Zeno, and his own testimony, it is patently clear that the appellant was aware
that it was the case against him that, in uttering the alleged words, his intention, a deliberate one, was to
wound the religious feelings of those hearing him. Rightly, his counsel before this Court did not appear
to think that any arguable point arose from the omission.
Having made that observation, we proceed to deal with the first ground of appeal. It was forcefully
contended by Mr Taslima that the learned Judge erred in law because, as the learned advocate put it, he
did not direct himself on the vital question of mens rea in the case. The learned advocate went on to
submit that even the learned trial Magistrate did not address her mind to that issue. Mr Taslima drew our
attention to Surah 88 - 91 of the Quran, and then proceeded to submit that when he told his audience that
Jesus Christ is not the Son of
Page 64 of [2007] 1 EA 59 (CAT)

God, the appellant was doing no more than preaching his religion. The four verses read as follows:
“(88) They say: ‘The Most Gracious has betaken a Son’;
(89) Indeed Ye have put forth a thing monstrous!;
(90) At it the skies are about to burst, the earth to split asunder, and the mountains to fall down, In utter
ruin;
(91) That they attributed a Son to The Most Gracious.”

With respect to the learned Judge, we are clearly of the opinion that Mr Taslima’s criticisms are
unanswerable. No offence is committed under section 129 of the Penal Code where the deliberate
intention of the perpetrator of the alleged misconduct was other than wounding the religious feelings of
those on the scene. Neither the learned trial Magistrate nor the learned Judge appears to have addressed
her/his mind to the question of mens rea in this case. In the course of her judgment the learned trial
Magistrate said:
“In this case [there is] no dispute that the accused person was at Chamwino preaching Islamic religion. The
questions in this case are:
(1) Whether the accused got permit to preach.
(2) Whether the accused used abusive words to abuse (sic) another religion.”

Nowhere in the judgment is there evidence which shows that the learned trial Magistrate was aware that
the prosecution had the onus to prove that the appellant had the deliberate intention to wound the
religious feelings of those within the hearing range. The issues she posed were clearly irrelevant. She
made no attempt to consider, among other things, whether, in making the utterance complained against,
the appellant did more than exercise his constitutional right to freedom of religion. The learned Judge, on
his part, discussed the validity or otherwise of the conviction only in three sentences, two of which are
fairly short, when he said:
“I now turn to the case at hand. I respectfully agree with the learned State Attorney that the prosecution’s
evidence proved the offence against the accused beyond reasonable doubt. The conviction, therefore was
justified.”

The learned Judge’s attention was apparently not drawn to the need for him to be satisfied that the
requisite mens rea was proved in the case. We have examined the record of the case with great care and
have found neither direct nor circumstantial evidence to justify the conclusion or inference that the
deliberate intention of the appellant when he uttered the words in question was to wound the religious
feelings of those who were to hear him. On the contrary, the evidence clearly demonstrates, in our
opinion, that the appellant was, at the material time, on a mission to propagate his religion, Islam. At the
time the regional CID officer arrived at the public meeting, the appellant was merely repeating what the
Quran unequivocally states in several Surahs, including Surah 19, which we have already quoted from,
and Surah 5, which, again, Mr Taslima drew our attention to. Verse 75 of that Surah reads:
“75 Christ the Son of Mary was no more than a messenger: many were the messenger that passed away
before him...”

It is neither possible nor desirable to list all situations which may manifest the deliberate intention of
wounding religious feelings. That intention may be manifested by the speaker declaring it in so many
words, or by the circumstances surrounding the making of the utterance, sound or gesture. If, for
example, a non-Christian were to preach on church grounds that Jesus Christ is
Page 65 of [2007] 1 EA 59 (CAT)

not the Son of God, or if he were to interrupt a Christian ceremony, function or meeting by making such
a declaration, it could be inferred that his deliberate intention in so doing was to wound the religious
feelings of those Christians hearing him. In the instant case the place where, and circumstances under
which, the appellant made the utterance and the nature of the meeting, had, among other things, to be
taken into account in determining what the appellant’s deliberate intention was.
The provisions of section 129 of the Penal Code were not intended to and do not, frown upon sober or
temperate criticisms of other persons’ religions even if those criticisms are made in a strong or powerful
language. It should always be remembered that what is regarded as truth in one religion may not be so
regarded in another. Even if some sections of society consider the spreading of certain religious
messages, in an area where those messages are taken to be unwanted, as being an irresponsible,
insensitive or provocative action it would not constitute a violation of section 129 of the Penal Code to
spread those messages there if the deliberate intention of the speaker was to propagate his religion or
religious views, and not to wound the religious feelings of those hearing him. The enactment of the
provision was not intended to license an unreasonable abridgment or restriction of the right to propagate
one’s religion or religious views. It was primarily intended to safeguard public order. Freedom of religion
is not so wide as to authorise the outrage of religious feelings of others, with a deliberate intention.
For the reasons we have given, we agree with Mr Taslima that in this case the prosecution failed to
prove the requisite mens rea. Consequently, we find merit in the first ground of appeal. These findings
are sufficient to dispose of the appeal, but, bearing in mind the novelty and importance of the case, we
deem it useful to deal with the other grounds of appeal, albeit briefly in each case.
We proceed, therefore, to examine the merits or otherwise of the second ground of appeal. It was the
contention of Mr Taslima here that the learned Judge erred in law in not evaluating the evidence laid in
the scales at the trial and assigning reasons for agreeing with the findings arrived at, by the learned trial
Magistrate. We have no doubt that this complaint has merit. We have already pointed out, when dealing
with the first ground of appeal, that the learned Judge, when he turned to a consideration of the validity
or otherwise of the appellant’s conviction, merely said that he agreed with the learned State attorney’s
submission that the prosecution had proved their case beyond reasonable doubt. He made no attempt to
consider how the evidence proved each ingredient of the offence the appellant was convicted of, and he
gave no reasons for holding that the learned State attorney’s submission was well founded. The necessity
for courts to give reasons cannot be overemphasised. It exists for many reasons, including the need for
the courts to demonstrate their recognition of the fact that litigants and accused persons are rational
beings and have the right to be aggrieved. And as was pointed out by MK Mukherjee J in Rupan Deol
Bajaj and another v Kanwar Pal Singh Gill and another [1995] Supp 4 SCR 237 at page 258:
“Reasons introduce clarity and minimise chances of arbitrariness.”

Nowhere in his judgment, in the instant case does the learned Judge appear to have noted that not only
did the learned trial Magistrate frame irrelevant issues
Page 66 of [2007] 1 EA 59 (CAT)

but she also made no attempt to discuss those issues. Bearing in mind what we have said, we are driven
to the conclusion that the complaint in the second ground of appeal has merit. That conclusion brings us
face to face with the third ground of appeal.
This ground of appeal can, we hasten to think, be dealt with very briefly. It was Mr Taslima’s
submission that to prove a charge under section 129 of the Penal Code, the prosecution must adduce
evidence from someone whose religious feelings were wounded by the alleged utterance, sound or
gesture, to the effect that his said feelings were wounded. We can find no warrant for thinking that there
is merit in this contention. It would be doing great violence to the language of the section to hold that
such proof is required. It is enough if it is proved that the accused’s deliberate intention was to wound
someone’s religious feelings. Of course, if a witness testifies that his religious feelings were wounded,
and eventually the charge is proved beyond a reasonable doubt, the proof of wounding may be relevant in
the assessment of sentence to be imposed on the accused. The offence is complete once the utterance is
made. It follows that, in our opinion, Mr Taslima’s argument is misconceived in law.
We turn now to the fourth ground of appeal. As will be recalled, the criticism here is that the learned
Judge denied the appellant the opportunity to be heard when the revisional proceeding was conducted. It
was contended by Professor Safari, on behalf of the appellant, that the omission to give him that
opportunity, violated the provisions of article 13(6)(a) of the Constitution and section 373(2) of the
Criminal Procedure Act, 1985. The constitutional provision reads as follows:
“(6) to ensure equality before the law, the State authority shall make procedures which are appropriate or
which take into account the following principles:
(a) when the rights and duties of any person are being determined by the court or any other agency,
that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy
against the decision of the court or of the other agency concerned.”

In order to grasp fully what is prohibited by sub-section (2) of section 373 of the act, it is necessary, we
think, to quote the preceding sub-section of the section also. This is how the two sub-sections read:
“373(1) In the case of any 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) in the case of conviction, exercise any of the powers conferred on it as a court of appeal by
sections 366, 368 and 369 and may enhance the sentence;
(b) in the case of any other order other than an order of acquittal, alter or reverse such order,
save that for the purposes of this paragraph a special finding under sub-section (1) of
section 219 of this Act shall be deemed not to be an order of acquittal.
(2) No order under this section shall be made to the prejudice of an accused person unless he has had
an opportunity of being heard either personally or by an advocate in his own defence; save that an
order reversing an order of a Magistrate made under section 129 shall be deemed not to have been
made to the prejudice of an accused person within the meaning of this sub-section.”
Page 67 of [2007] 1 EA 59 (CAT)

In the instant case it is not in dispute that the learned Judge conducted the revisional proceeding in the
absence of the appellant, who was given no opportunity to be heard in his own defence. There can be no
doubt whatsoever that the omission to provide that opportunity to the appellant was a very serious error.
It offended the provisions of sub-section (2) of section 373 of the Act we have quoted a short while ago.
The decision of the learned Judge affirming the conviction did in the circumstances prejudice the
appellant.
Very rightly, Mr Mlipano, the learned State attorney, conceded before us that the learned Judge’s
error is fatal to his decision. The importance of the right to be heard has been commented upon by many
eminent Judges over the centuries. Nearly three centuries ago, in R v University of Cambridge 1723 I Stra
557, cited with approval by Megarry J in John v Rees and others [1969] 2 All ER 274, Vortescue, J, used
the following celebrated words to emphasise the importance:
“The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember
to have heard it observed by a very learned man upon such an occasion that even God himself did not pass
sentence upon Adam before he was called upon to make his defence. Adam (says God) where art thou? Hast
thou not eaten of the tree whereof I commanded thee that thou shouldst not eat? And the same question was
put to Eve also.”

We are satisfied, for the reasons we have given, that there is merit in the complaint in the fourth ground
of appeal.
Finally, we proceed to deal with the fifth ground of appeal. It was submitted on behalf of the appellant
that no judgment was in law delivered by the learned Magistrate in this case. It is common ground that
although she framed two issues in the case, she dealt with only one of them, and the one which was
considered was dealt with perfunctorily. Another criticism levelled at the learned trial Magistrate’s
judgment is that it scarcely contained any reasons justifying the final conclusions arrived at on the case.
We have already discussed the importance of giving reasons in decision making. We will not revert to
that point. We will confine ourselves at this stage to determining whether the learned trial Magistrate
fully complied with the requirements of section 312(1) of the Act, which reads:
“312(1) Every judgment under the provisions of section 311 shall, except as otherwise expressly provided
by this Act, be written by, or reduced to writing under the personal direction and superintendence
of the presiding Judge or Magistrate in the language of the court, and shall contain the point or
points for determination, the decision thereon and the reasons for the decision, and shall be dated
and signed by such presiding officer as of the date on which it is pronounced in open court.”

While we are hesitant to travel the whole distance with counsel for the appellant and say that the
judgment delivered by the trial court in this case is no judgment in law, we have no hesitation in holding,
as we do, that the said judgment did not sufficiently meet the requirements of the sub-section we have
just quoted. We wish to draw attention to what this Court said in Lutter Symphorian Nelson v (1)
Attorney-General. (2)Ibrahim Said Msabaha civil appeal number 24 of 1999 (UR) on what a judgment
should contain:
“...A judgment must convey some indication that the Judge or Magistrate has applied his mind to the evidence
on the record. Though it may be reduced to a minimum, it must show that no material portion of the evidence
laid before the court has been
Page 68 of [2007] 1 EA 59 (CAT)
ignored. In Amirali Ismail v Regina 1 TLR 370, Abernethy J made some observations on the requirements of
judgment. He said:
A good judgment is clear, systematic and straightforward. Every judgment should state the facts of the case.
Establishing each fact by reference to the particular evidence by which it is supported; and it should give
sufficiently and plainly the reasons which justify the finding. It should state sufficient particulars to enable a
Court of Appeal to know what facts are found and, how.”

The failure to comply with the relevant statutory provisions as to the preparation of a judgment will be
fatal to a conviction where there is insufficient material on the record to enable the appeal court to
consider the appeal on its merits: see Wily John v Republic (1956) 23 EACA 509. In the instant case the
learned Judge erred, in our opinion, in not holding that the learned trial Magistrate’s judgment fell short
of meeting the requirements of section 312(1) of the Act.
We have clearly demonstrated, we think, that the learned Judge should not have affirmed the
appellant’s conviction and that, therefore, this appeal must succeed. We desire, before we make resultant
orders, to make two observations.
The first one concerns revisional powers. No one can doubt the usefulness of these powers, but they
should be exercised in appropriate cases. Save in cases where justice requires an obviously improper
conviction or illegal sentence to be at once quashed or rectified, revisional powers should not be
exercised before inquiry has been made whether an appeal has been or is likely to be lodged: see (T)
Lobozi s/o Katabaro v R (1956) 23 EACA 583. In the instant case the revisional proceeding was
conducted before the expiry of the period within which an appeal against the district court’s decision
could be lodged. On 6 August 2001, the appellant had; through the Officer-in-charge of Morogoro
Prison, given a notice of appeal. No inquiry appears to have been made as to whether an appeal was
likely to be lodged. This should have been done.
The second matter we desire to comment upon is religious intolerance. Religions can, and should, be a
solid foundation of peace. In countries where they have not been given a chance to play that vital role,
they have launched many wars, caused endless streams of blood and rolling of thousands of heads.
Religious intolerance is a vice which must not be permitted to find a place in the hearts of our people. It
must be repressed by every lawful method. When a person embracing a religious faith or view is told by
another person, whose religious faith or view is different, something concerning religion which he
considers to be untrue, he should be able to answer him by echoing the wise words of Voltaire, the 18th
century French philosopher:
“I disagree profoundly with every word that you say but I shall defend unto the death your right to say it.”

In the holy books of almost all major religions in the world, one finds passages directly or indirectly
exhorting people to religious tolerance. In the Quran, for example, there are the following verses, in
Surah 109:
(1) Say (O Muhamad to these Mushrikun and Kafirun): ’O Al-Kafirun (disbelievers in Allah, in His
Oneness, in His Angels, in His Books, in His Messengers, in the Day of Resurrection and in
Al-Qadar)!
(2) I worship not that which you worship.
Page 69 of [2007] 1 EA 59 (CAT)

(3) Nor will you worship that which I worship.

(4) And I shall not worship that which you are worshipping.
(5) Nor will you worship that which I worship.
(6) To you be your religion, and to me my religion.
The Constitution of the United Republic of Tanzania and other relevant laws oblige the people of this country to live
together with mutual respect and tolerance. It is one of the principal obligations of good citizenship.

For the reasons we have given, we allow the appeal, quash the conviction and set aside the sentence
imposed thereon.
For the appellant:
Information not available
For the respondent:
Information not available

Falima v Ally and another

[2007] 1 EA 69 (CAT)

Division: Court of Appeal of Tanzania at Dar-Es-Salaam

Date of judgment: 18 September 2003
Case Number: 5/94
Before: Mackanja and Mroso JJA
Sourced by: LawAfrica
Summarised by: H Majamba

[1] Child – The right of an unborn child – Whether a child with disabilities, born by negligence of a
person, has a right to sue such person for negligence.
[2] Tort – Negligence – Medical negligence – Duty of care – Whether the cause of cerebral palsy was
caused by the appellant’s negligence.

Editor’s Summary
The respondent’s mother was admitted at a hospital for delivery. The appellant was a midwife at the
hospital who admitted the respondent. The appellant had examined her and recorded that she was not yet
due for delivery on the first day. A gynaecologist also examined the respondent and recorded that she
was to continue being monitored during the labour process, but if she had not delivered normally by a
certain time, then a caesarean would have to be performed. Ultimately, three days after being admitted,
the doctor, with the assistance of two others, performed a caesarean on the respondent. Four months after
delivery, the respondent noticed something abnormal with the child. She took the child to hospital and it
was diagnosed by a specialist paediatrician. The baby was found to have impaired vision due to cerebral
palsy. The trial Judge found the appellant to have been negligent. The respondent appealed.
Held – A child born suffering from disabilities due to medical negligence before birth can sue for
damages arising out of the negligence, since in law, an unborn child is deemed for purposes of such
action to be born whenever its interests required. In this case, the respondent failed to prove negligence
of the part of the appellant.
Appeal allowed.
Page 70 of [2007] 1 EA 69 (CAT)

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

United Kingdom
Burton v Islington Health Authority and De Martell v Merton and Sutton Health Authority [1992] 3 All
ER 820
Burton v Islington Health Authority de Martell v Menton and Sutton Health Authority [1993] QB 204
Walker v Great Northern CO of Ireland [1891] 28 LR Ir 69

Judgment
Mroso JA: When this appeal came up for hearing on an earlier occasion it became apparent that issues
arising in it are closely related to issues arising in civil appeal number 15 of 1998, which the court had
struck out. The Attorney-General who was the appellant in that appeal promised he would resuscitate it if
given time to do so. Relying on that undertaking by the Attorney-General the court considered that it
would be more appropriate to consolidate the hearing of this appeal with the intended appeal by the
Attorney-General. For that reason, the hearing of this appeal was adjourned to await the refiling of the
appeal by the Attorney-General. The Court said:
“The Attorney-General is reminded to take the proposed step promptly to avoid undue delays in the hearing
of this appeal.”

The “proposed step” was the resuscitation of the appeal by the Attorney-General which had been struck
out. The order adjourning this appeal was made on 16 November 2001.
When this appeal was called up for hearing again on 18 July 2003, which is some twenty months after
it was last adjourned, the Attorney-General was yet to revive his appeal. Ms Sehel, learned State
attorney, appeared for the Attorney-General and asked for further adjournment of the hearing of this
appeal to allow time for the Attorney-General to take necessary action to file his appeal because he was
still interested in pursuing it.
Mr Boaz, learned advocate, who represents the appellant in this appeal did not have objection to
adjournment because he believed that consolidation of the hearing of this appeal with the one by the
Attorney-General would be in the interests of his client. He said that in the event the court refused the
adjournment, it should allow the Attorney-General to appear as amicus curiae in the present appeal.
Mr Mtaki, learned advocate, who has appeared for the respondent put up stiff objection. He said the
court order in the last adjournment was that the Attorney-General was to act as soon as possible and if in
twenty months he had not acted, it would be an abuse of the process of the court to allow him more time.
He also resisted the plea that the Attorney-General be heard as amicus curiae. He said to do so would be
tantamount to allowing the Attorney-General to argue his unfiled appeal through the back door. We
disallowed adjournment and proceeded with the hearing of the appeal. We also refused to allow the
Attorney-General to appear as amicus curiae. We reserved the reasons which now appear in this
judgment.
Page 71 of [2007] 1 EA 69 (CAT)

We intend to be quite brief in our reasons. Ms Sehel had explained that to-date the Attorney-General
had not refiled his appeal because he has to go over the hurdle of seeking leave to appeal out of time and
that such application is yet to be filed.
We think the Attorney-General has not demonstrated any diligence on his part. Twenty months is
quite a long period especially when it is considered that this present appeal was filed five years ago and
that it is now seven years since the decision of the High Court. It would be unconscionable for this Court
to allow any further adjournment. It is only fair that the respondent who obtained a favourable decree in
the High Court should know finally, if he is entitled to the remedy which he sought in court. It is not
justice to further prolong his uncertainty. We therefore decided to refuse the prayer for another
adjournment.
As for the prayer to have the Attorney-General appear in this appeal as amicus curiae, we agree
entirely with Mr Mtaki that giving the Attorney-General such opportunity is to allow him to benefit from
his own default by allowing him to urge his appeal without the need to file it. We, therefore, turned down
the suggestion. Now, to the appeal.
The respondent Bashiri Ally is a minor who filed a suit by his next friend, his mother, in the High
Court at Tabora. He was born at Maweni Hospital, Kigoma on 17 July 1990 by caesarean section. About
four months after he was born his mother began to observe in him signs of abnormality. He was referred
to a neuro-surgeon at Muhimbili Hospital in Dar-es-Salaam. The mother was told that the respondent had
suffered brain damage medically known as cerebral palsy. According to her evidence, she was told that
the brain damage resulted from delayed delivery. She attributed the delayed delivery to negligence on the
part of the appellant. The respondent, therefore, through his mother, brought a suit in the High Court
against the appellant, the Regional Medical Officer and the Attorney-General, praying for general
damages amounting to TShs 25 million; interest, costs and any other relief that the court deemed fit to
grant.
The learned Judge found that the Regional Medical Officer who was the second defendant at the trial
“not a proper or necessary party” and, therefore, not liable. But he found the appellant and the
Government, which was represented by the Attorney-General, liable. The appellant was to pay 25% of
the total liability of TShs 15 150 000 and the Government was to shoulder 75% of the assessed total
liability. The appellant was aggrieved by that decision, hence this appeal.
Mr Boaz, learned advocate, filed three grounds of appeal on behalf of the appellant. In the first ground
the complaint is that the learned trial Judge erred in fact and law in holding that the appellant or her
employer owed any duty of care to the respondent who was a foetus at the material time.
In the second ground the trial Judge is criticised for holding that the respondent’s cerebral palsy or
mental retardation was caused by the negligence of the appellant. In the third ground the appellant says
the trial Judge erred in fact and law in assessing general damages at TShs 15 000 000 and nominal
damages at TShs 150 000, claiming they were illegal or manifestly excessive. However, when arguing
the appeal, Mr Boaz informed the court that he was not seriously challenging the quantum of damages as
assessed but that if they are to be paid, the Government should do so on her behalf.
Page 72 of [2007] 1 EA 69 (CAT)

Before we discuss the grounds of appeal, we think there is need to give more facts of the case which
led to the judgment that is now being challenged.
The respondent’s mother, Fatuma Zabron, experienced labour pains and reported at Maweni Hospital,
Kigoma at about 7pm on 15 July 1990. The appellant was, and perhaps still is, a nurse/midwife at the
hospital. She admitted the respondent’s mother. She examined her and found that the unborn baby’s
pulse was normal but the mother’s cervix measured only 2 cm, which was not open enough for what was
termed true labour. It was said that in true labour the cervix must be at least 3 cm wide. The appellant
recorded the findings in a labour chart which was tendered at the trial as exhibit P1.
Fatuma said in her evidence that throughout the night she experienced severe labour pains and she
claimed that at midnight the membranes which cover the foetus ruptured. The appellant examined her
again and told her to exercise her body until her cervix was open enough. At 3am she was again told that
her cervix was still not open enough. That condition persisted until the following morning, that is on 16
July 1990, when the appellant completed her night shift and went home.
At 11am on 16 July 1990 the doctor was called. He recorded that Fatuma was with moderate labour
pains. He directed that labour progress should continue to be monitored. The appellant was on duty again
during the night of 16 July 1990. At 10pm she called the doctor after she observed that Fatuma’s cervix
had attained a dilation of 3 cm. The doctor came at 11:30pm and after examining Fatuma directed that
observation should continue and that he should be called if complications developed. The doctor also
indicated that if the patient did not deliver normally in the night he would perform caesarean section at
9am the following day, 17 July 1990.
The appellant examined Fatuma again at 3am and could not see any positive development. She
decided to call in the doctor again. The doctor came at 3:30am. He observed foetal distress due to poor
cervical dilation and decided to operate the patient, which he did along with two other doctors. It was
then the respondent was extracted alive. Fatuma could not suckle the baby who was kept in the labour
ward until 6pm on 19 July 1990. The baby was suckled on the fourth day and on 27 July 1990, Fatuma
and her baby were discharged from hospital. As mentioned earlier, four months after delivery Fatuma
began to observe that all was not well with her baby, the respondent. She believed the appellant in
particular and the hospital on the whole, were negligent during the period she was in the labour ward and
before the child was born. During that time, according to her, the respondent suffered mental and
physical injuries.
When the respondent was examined by a specialist paediatrician, Dr MR Fataki, at Muhimbili
Medical Centre, he was found to be suffering from impaired vision. The Specialist Paediatrician sent a
report to the Regional Medical Officer, Kigoma which in the relevant parts reads:
Physical Exam –
Vision impaired
L-sided hemiplegia with spasticity
EEG shows paroxysunal bursts of
generalised spike and wave complexes
with diffuse theta waves.
Page 73 of [2007] 1 EA 69 (CAT)
Diagnosis: GC - moderate
L-sided moderate - severe hemiplegic spastic cerebral palsy.
Associated features: Cortical blindness
L-sided partial seizure disorder.

In discussing this appeal we think that the first thing to ascertain, if that is possible, is the cause of the
cerebral palsy in the respondent. Dr Fataki’s report to the Regional Medical Officer is not categorical as
to the cause of the complications. All it says is that there was a history of prolonged difficult labour,
delivery by caesarean section with subsequent gross delay in milestones and L-sided seizures.
The Regional Medical Officer, Kigoma, Dr Godfrey Mbaruku, a Specialist Obstetrician and
Gynaecologist, gave evidence at the trial and said:
“In my view the child did not develop cerebral (sic) palsy due to medical treatment at the time of delivery, the
cause was after that stage. Cerebral (sic) palsy is due to brain damages which could be caused while the foetus
is still developing due to congenital causes. Secondly, brain damage could be due to intra-utrine (sic)
infections ie infection in the uterous (sic) eg toxoplasmosis which is caused by contact with domesticated (sic)
dogs, cats, thirdly a kind of chicken pox called rubella which affects adult mothers, fourthly, during labour
due to intra-utrine (sic) asphyxia due to loss of oxygen while the foetus is still in the uterous (sic). Fifth, after
birth due to celebral (sic) malaria, meningitis, convulsions due to high fever caused by malaria pneumonia.”

From this passage it is apparent that there are many causes for the cerebral palsy and that the damage
could have occurred well before respondent’s mother was admitted in the labour ward, or during the time
she was in the labour ward or at the time of birth or subsequent to the birth.
Dr Mbaruku, of course, was called as one of the defendants in the case and it is conceivable that his
evidence was coloured by that fact. But the respondent’s next friend did not call any independent expert
witness to testify. The appellant herself said a child can develop cerebral palsy as a result of a fall or use
of herbal medicine or of meningitis. According to her, if the respondent had cerebral palsy at the time of
birth he would not respond to movements around him and would not cry in the normal way. She believed
the respondent developed the palsy after he and the mother were discharged from hospital, otherwise his
mother who had had other children previously would have detected the abnormality before she was
discharged from hospital.
Respondent’s mother believed the report from Dr Fataki had established that the respondent suffered
the brain damage during her prolonged labour. As we said earlier in this judgment, Dr Fataki did not say
in the report when or what caused the cerebral palsy. He only gave the history leading to the birth of the
respondent.
Dr Msovu who performed the operation on respondent’s mother recorded that just before the
operation, the foetus was experiencing foetal distress. By foetal distress is meant that the foetus is not
getting enough oxygen and is exhausted. Was that the cause of brain damage in the respondent?
Dr Mbaruku said in his evidence that foetal distress of more than six hours can cause brain damage.
But he was quick to point out that in the case of the respondent it had lasted for only two hours from the
time it was diagnosed to operation. What can be inferred from this is that the foetal distress which the
Page 74 of [2007] 1 EA 69 (CAT)

respondent had suffered before he was born could not have been the cause of the brain palsy.
The trial Judge said of the foetal distress:
“... in the absence of medical proof for the cause of the foetal distress other than prolonged labour to which
PW1 (respondent’s mother) was subjected, the foetal distress in this case was due to PW1’s prolonged
labour.”

But the learned trial Judge was making an assumption which was based on a wrong premise. It was for
the respondent’s next friend to prove, if she could, on a balance of probabilities, and on the basis of
evidence that the foetal distress was due to prolonged labour rather than assume that because there was
no clear evidence on what caused the foetal distress then it must have been caused by prolonged labour.
After anxious consideration of the evidence on record we are unable to say with any measure of
assurance what caused the brain damage or when it was caused. The probability is that the damage may
have been post-natal. That appears to be consistent with the fact that Fatuma, who was an experienced
mother having given birth to six children prior to the respondent, did not notice in the respondent,
anything out of the ordinary soon after birth until four months later.
Having reached this conclusion it is not really necessary now for us to consider whether the appellant
was guilty of professional negligence in the way she attended PW1 – Fatuma, and whether she owed a
duty of care to the unborn baby – the foetus. We will therefore make only brief observations.
During the first night in the labour ward PW1 apparently experienced a lot of pains. The fact that
those were early labour pains, or false labour, was not of much comfort to her. She was restless and
demanded that a doctor be called. The appellant however would not call a doctor merely because the
patient said so. The labour chart which she maintained bears her out that there was no immediate
necessity to call the doctor on the first night. On the second night when she observed that the cervix had
dilated to 3 cm she duly called the doctor who examined the patient and directed further observation. She
again called the doctor the same night because the patient did not show any positive development. It was
then, the doctor decided he would operate the patient in order to get the baby out by caesarean section.
There was no expert evidence that the appellant should have acted otherwise and without ruling out
occasional rude replies by the appellant to persistent demands from the patient, we are unable to agree
with the trial Judge that the appellant acted negligently when attending to respondent’s mother.
Assuming, without so finding, that the respondent suffered the brain damage when his mother was in
labour at the hospital, was the foetus owed a duty of care which entitled him to sue after he was born?
The learned trial Judge relying on English law, that is the Congenital Disabilities, (Civil Liability)
Act, 1976 and a decision of the House of Lords in England - Burton v Islington Health Authority [1993]
QB 204 said:
“So in England, at least a child can sue for injuries inflicted on it when it was in utero No doubt these are
sound principles; I propose to apply them in the determination of this case.”
Page 75 of [2007] 1 EA 69 (CAT)

He then held that the appellant owed the foetus a duty of care and if it suffered as a result of the
negligence of the appellant, it could sue for damages if, later, it was born alive and with consequent
disabilities.
We think the learned Judge misdirected himself on the law. The law here regarding the rights, if any,
of a foetus is the common law as it obtained at the reception date, that is to say on 22 July 1920.
The common law position in this regard prior to the reception date is illustrated in the case of Walker
v Great Northern CO of Ireland [1891] 28 LR Ir 69 cited in the judgment of Dillon LJ in Burton v
Islington Health Authority de Martell v Menton and Sutton Health Authority [1993] QB 204.
In the Walker case a mother who was pregnant with the appellant (Walker) was being carried as a
passenger in a train of the respondent’s company when she fell because of the negligence of that railway
company. The child she was carrying in her womb was permanently injured and when it was born it was
crippled and deformed. Later, a suit for damages based on negligence was filed. The court held on
demurrer that no cause of action had been disclosed. One of the reasons for so holding was that pre-natal
injuries were not recognised as giving a right to damages. Another reason which is not relevant in our
present case was that the railway company had sold only one ticket to the mother and not two. Under
current English statutory and common law the decision in Walker is unsatisfactory and perhaps unfair.
We should say that even today in Tanzania, the decision in Walker would be unsatisfactory. But that is
the law.
We think there is dire need for updating the law in this regard in order to catch up with other
countries and statutory intervention is the best way out. In England although there had been some
developments under common law which departed from Walker, it was found necessary to have a statute,
that is the Congenital Disabilities (Civil Liabilities) Act, 1976 referred to earlier in this judgment. That
Act grants a right of action to a child who is born alive but disabled because of an occurrence which
affected either the father’s or the mother’s ability to have a normal child or affected the mother during
pregnancy.
While statutory intervention is being awaited we think the court should provide a respite from the
stagnation in the law which has persisted from the reception date in 1920. We think that it is important,
even necessary, that in present day Tanzania, a child who is born alive but with disabilities which were
caused before it was born by the negligence of a person, should be able to sue such person for the
negligence. That, in a way, would be consistent with the position in our criminal law. Section 219 of our
Penal Code, Chapter 16 recognises that an unborn child enjoys the right to life. Thus the section provides
in sub-section (1) that any person who with intent to destroy the life of a child capable of being born
alive by any wilful act, causes a child to die before it is born shall be guilty of the offence of child
destruction and shall be liable on conviction to life imprisonment. Of course, the criminal law speaks as
it should of wilful act to cause the death of the unborn child but in civil liability the law should not stop
at “wilful act” and “causing death” but should extend to all negligent acts which cause disabilities to the
unborn child. This is regardless of whether the unborn child is or is not a legal person at the time the
harm is inflicted. For purposes of an action for damages for negligence, the tort feasor will be taken to
have breached a duty of care because the unborn child will be deemed to be born and clothed with the
rights which it would have, had it been actually in existence as a person at the date when harm was
inflicted on it, while still in its mother.
Page 76 of [2007] 1 EA 69 (CAT)

The Court of Appeal in England took that proactive approach in the case of Burton v Islington Health
Authority and de Martell v Merton and Sutton Health Authority [1992] 3 All ER 820. In Burton the
plaintiff had claimed damages against the defendants for personal injury, distress and other harm which
she suffered as a result of alleged negligent treatment of her mother when the plaintiff was still an
embryo. The mother had a gynaecological operation at a hospital which was managed by the defendants.
The defendants applied to the trial court for the action to be struck out for not disclosing a reasonable
cause of action. The court dismissed the application.
In de Martell, the plaintiff brought action for damages for negligence by medical personnel when the
plaintiff’s mother was in labour leading to her delivery and his birth. In a preliminary issue, the court
assuming the allegations of negligence by the medical staff, employed by the defendants to be true held
the defendants were liable in tort to the plaintiff for the harm which he suffered before he was born.
The Court of Appeal upheld the decisions of the trial courts in both cases when they went on appeal.
The Court of Appeal held that a child born suffering from disabilities caused as a result of medical
negligence before birth could maintain an action for damages for negligence in respect of a breach of
duty of care, since although not a person in the eyes of the law at the time when the injury took place, an
unborn child was deemed for purposes of such action to be born whenever its interests required. It was
therefore clothed with all the rights of action when born which it would have had if actually in existence
at the date of the accident to its mother.
In the present case had the respondent succeeded to prove negligence on the part of the appellant, this
Court would have been prepared to recognise his right to damages for the reasons which we have
attempted to give.
This Court having found that there was no proof of negligence on the part of the appellant and,
further, that there was no proof the cerebral palsy was caused when the respondent’s mother was being
attended by the appellant in the labour ward at the hospital, we are constrained to allow the appeal in its
entirety. The appellant will have her costs.
(Mackanja JA concurred in the decision of Mroso JA)

For the appellant:

Mr Boaz
For the respondent:
Mr Mtaki

Ganatra v Ganatra
[2007] 1 EA 76 (HCK)

Division: High Court of Kenya at Nairobi

Date of ruling: 22 February 2007
Case Number: 57/92
Before: Nyamu J
 Before: Nyamu J
Sourced by: LawAfrica
Summarised by: E Ongoya

[1] Civil practice and procedure – Res judicata – Definition of res judicata.
[2] Matrimonial causes – Maintenance – Whether a maintenance order can be made or executed after
parties have divorced.
Page 77 of [2007] 1 EA 76 (HCK)

Editor’s Summary
By application made under rules 3(3), 58 and 59 of the Matrimonial Causes Rules, the applicant sought,
among other orders that the court orders the committal of the respondent to jail to pay arrears of
maintenance amounting to KShs 679 950 and further that the court orders the attachment of a third of the
respondent’s salary in respect of maintenance. The respondent opposed the application on the grounds
that since the parties had divorced since the applicant had withdrawn her originating summons
application for division of matrimonial property, the maintenance orders which had been expressed to
subsist until the originating summons was heard and determined had effectively lapsed. Further, the
respondent urged that since the parties had divorced, the applicant lacked locus standi to file for
maintenance against the respondent. She also submitted that owing to a previous application that had
been struck out for being technically incompetent, the current application was res judicata.
Held – For res judicata to be established, three conditions have to be fulfilled. Firstly, that there was a
former suit or proceedings in which the same parties as in the subsequent suit or proceedings litigated.
Secondly, that the matter in issue in the latter suit must have been directly and substantially in issue in
the former suit. Thirdly, that a court competent to try the suit had heard and finally decided the matters in
controversy between the parties in the former suit.
The withdrawal of the originating summons by the applicant without filing another originating
summons did not terminate the court orders for payments to the applicant.
Under the Matrimonial Causes Act, before a court can make an order for committal, a party who has
failed to meet the maintenance obligations, an appropriate notice under rule 59(2) of the Matrimonial
Causes Rules had to be filed.

Cases referred to in ruling

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Trouistik Union International v Ms Jane Mbeyu and another [1990] LLR 229 (CAK)
Willie v Muchuki and others [2004] 2 KLR 357
Willie v Muchuki Nalarlarn High Court civil suit number 163 of 2004

Ruling
Nyamu J: Before me is a chamber summons dated 23 October 2006, filed by Judy Thongori and
Company Advocates on behalf of the applicant/petitioner Nita Subhash Ganatra. It was filed under a
certificate of urgency. The respondent is named as Subhash Chotalal Gamatra. The application was
brought under Rule 3(3), 58 and 59 of the Matrimonial Causes Rules. It seeks for five orders, one of
which has been spent, that:
(a) Spent;
(b) This Honourable Court be pleased to order the committal of the respondent herein in jail for failure
to pay arrears of maintenance amounting to KShs 679 950;
Page 78 of [2007] 1 EA 76 (HCK)

(c) This Honourable Court be pleased to order the attachment of a third of the respondent’s salary in
respect of maintenance with effect from 30 October 2006;
(d) The Honourable Court be pleased to give such further or other directions as it may deem fit and
just to grant;
(e) The costs of this application be provided for.
The application has grounds on the face of the chamber summons and is also supported by the affidavit
of Nita Subhash Gandra, sworn on 23 October 2006.
The grounds of the application are that by a ruling delivered on 17 October 2000, Honourable Justice
Rawal ordered the respondent to pay the applicant for maintenance and rent an amount of KShs 30 000
per month; that the respondent reluctantly made part payments until 2 June 2004; that the respondent’s
application for suspension, modification and/or variation of the courts order’s was heard and dismissed
by Honourable Justice Koome on 18 November 2005; that the petitioner faced eviction within two weeks
for failure to pay outstanding rent for four months, that the outstanding amount as at 1 October 2006 was
KShs 679 950; that the respondent had always defaulted in paying maintenance and it was in the interests
of justice that his salary should be attached directly; and finally that it was in the interests of justice that
the orders sought should be granted. The supporting affidavit highlights the circumstances giving rise to
the application. The application is opposed and a replying affidavit of the respondent sworn on 21
November 2006 was filed. In the said replying affidavit the respondent denied owing the applicant any
maintenance. He also deponed that the application herein was res judicata, and denied having been
served with the court’s order as alleged in paragraph 10 of the supporting affidavit.
At the hearing of the application, Ms Thongori for the applicant, submitted that the parties were
divorced since 7 June 1994. On 17 October 2000, Justice Rawal ordered that the respondent pays
maintenance for the applicant. An application was filed to set aside the Judge’s maintenance orders,
which application was dismissed on 18 November 2005. She submitted that the respondent used to pay
for maintenance of the applicant, mainly through attachments. A huge amount had not accumulated and
was unpaid as shown in the documents filed in the application. She submitted that the respondent should
be compelled to pay the money by being jailed, as he was deliberately refusing to pay the money though
he was actually employed. She further submitted that the applicant wants the respondent’s salary to be
attached with the regard to future payments. She emphasised that the applicant was in arrears of rent and
the credit that she had obtained for her upkeep.
Mrs Wambugu for the respondent opposed the application. She submitted that though the applicant
and respondent were divorced, it was the applicant who filed proceedings for divorce. She contended that
in the decree nisi there were certain orders. The order for maintenance was to be effective up to the
finalisation of the case for division of matrimonial property. On 1 March 1998 parties filed a consent
varying the maintenance order to payment of KShs 40 000 per month. Later, in an application dated 4
December 2000 the respondent herein filed an application for variation of the maintenance order. On the
basis of that application Honourable Justice Rawal varied the figure for maintenance to
Page 79 of [2007] 1 EA 76 (HCK)

KShs 30 000 per month. This is the order that has given rise to this application. The learned Justice
Rawal also ordered that parties file affidavits of means.
She submitted further that the applicant had filed an originating summons for division of matrimonial
property. However, she withdrew that application on 28 October 2004. On 18 November 2005 the
application for variation of the maintenance orders was dismissed.
She submitted that this Court lacks jurisdiction to hear this application. It was her contention that
when the applicant withdrew the originating summons, the order for maintenance issued on 7 June 2004
lapsed on the date of withdrawal, that is 28 October 2004. The court became functus officio unless a fresh
application for division of property was filed. She sought to rely on section 25 of the Matrimonial Causes
Act, and asserted that an order for maintenance could be imposed by the court. The case or cause for the
division of matrimonial property having been terminated on 28 October 2004, the respondent did not owe
any money to the applicant.
On locus standi it was her contention that the marriage had been dissolved and a decree absolute
issued in 1998. Therefore in the absence of specific orders commanding the respondent to maintain the
applicant for life, it followed that the applicant lacked legal standing to bring this application. She also
contented that the application was an abuse of the process of the court. The applicant having participated
in all the legal proceedings herein, she had no reason to come to court as she knew that there was nothing
which was pending in court.
She also submitted that the matter was res judicata and sought to rely on section 7 of the Civil
Procedure Act (Chapter 21). She contended that a similar application dated 2 December 2005 seeking
similar orders was decided by the court on 9 September 2006. She also sought to rely on the case of
Willie v Muchuki Nalarlarn High Court civil suit number 163 of 2004 (OS).
In reply, Ms Thongori stated that it was the order of Justice Rawal issued on 17 October 2000 for
payment of KShs 30 000 per month that the respondent made an application for its variation. That
showed that this was the operating order, and it was dismissed by Justice Koome. She also submitted that
the order of 17 October 2000 did not refer to any issue of proceedings for division of matrimonial
property. She submitted also that the issues raised by the respondent in this application were the same
issues canvassed and considered by Justice Koome. She also submitted that there was an appeal pending,
and unless determined, the order of Justice Koome still stands. She stated that Justice Koome referred in
her ruling to the pending issue of division of property.
On locus standi, she submitted that the fact that the marriage had been dissolved did not remove locus
standi. The respondent himself had sought for review orders in 2004 after the decree had been made
absolute.
She contended that there was no abuse of the process of court, as they were merely seeking to enforce
valid orders of the court.
On res judicata she submitted that this was a matrimonial cause and was not a suit as envisaged in
section 7 of the Civil Procedure Act. She contended that when their application was dismissed, the court
granted leave to file a proper application. In any case section 7 presumes that the matter is heard and
determined on merits, not on technicalities the way the said application was dismissed. In any event, on
29 July 2005, a consent was recorded between the
Page 80 of [2007] 1 EA 76 (HCK)

parties, for payment of an undisputed amount, therefore the respondent could not claim that maintenance
ended in 2004.
I have considered the application and the arguments of both counsel for the parties. I have perused the
court record and the case of Willie v Muchuki and others [2004] 2 KLR 357 that was cited by Mrs
Wambugu, learned counsel for the respondent.
This appears to have been a long protracted matter. In my view, the issues that arise are whether there
is a maintenance order that was in force; whether the applicant has a locus standi to bring this
application; whether the application is an abuse of the process of the court; whether this application is res
judicata and whether this Court can grant the prayers sought in the application.
The first issue is whether there was a maintenance order in force at the time of filing the application.
Learned counsel for the applicant, Ms Thongori has argued that such a maintenance order for payment of
KShs 30 000 per month to the applicant by the respondent was in force at the time of filing the
application and had been in force but the respondent has been defaulting and continues to default to
comply with the court’s order. It was her contention that that order was last varied to KShs 30 000 by
Honourable Justice Rawal. She contended that that order did not lapse on 28 October 2004 when the
applicant withdrew her originating summons for division of matrimonial property. She contended that
since the application for variation of maintenance orders was dismissed by Honourable Justice Koome on
8 November 2005 and there was an appeal filed, which was pending the orders of maintenance were still
alive and had to be complied with by the respondent.
Learned counsel for the respondent Mrs Wambugu has argued that the maintenance orders were given
by the court, subject to finalisation of the originating summons of the applicant for division of
matrimonial property. Since that originating summons was withdrawn on 28 October 2004 and no other
originating summons was filed, then there were no maintenance orders in existence, in spite of the ruling
of the court dismissing the application for variation of the maintenance orders on 18 December 2005 by
Honourable Justice Koome.
There does not appear to be any dispute that the applicant filed an originating summons for division
of matrimonial property and withdrew the same on 28 October 2004 and did not file a fresh originating
summons.
I have perused the judgment for the decree nisi which was issued by Owuor J (as she then was) on 7
June 1994. The judgment has a number of conditions. Condition 4 states this:
“(4) Respondent to pay to the wife and children a sum of KShs 10 000 for food, electricity, water,
telephone, etc. He will also pay a further sum of KShs 8 000 for rent till the finalisation of the
matrimonial property issue.”

The decree nisi was made absolute on 23 March 1998. However, the parties were in and out of court
several times thereafter. The two amounts above were by consent agreed to be reviewed to KShs 25 000
towards maintenance and KShs 15 000 towards rent per month. That amount was reduced on application
for variation, by Honourable Justice Rawal to KShs 30 000 per month on 17 October 2000. Thereafter
the Judge on 21 November 2002 declined to grant further review on the ground that the information
given or filed was lazy. The learned Judge allowed the parties to file a further affidavit and ordered that
the
Page 81 of [2007] 1 EA 76 (HCK)

pending application dated 5 December 2000 be fixed for hearing thereafter on urgent basis. The
application was herd by Honourable Justice Koome and a ruling delivered on 18 November 2005.
Having perused the ruling of Honourable Justice Koome delivered on 18 November 2005, it is my
humble view that the respondent cannot raise the issue of withdrawal of the originating summons and ...
to file another originating summons as reason enough that the orders for payment of rent and
maintenance lapsed. That issue was in fact considered by the learned Judge and her Ladyship had this to
say in the said ruling:
“With tremendous respect to counsel for the respondent the order for maintenance cannot be said to have
lapsed. The property suit has not been determined. It was withdrawn with the leave of the court with liberty to
parties to file a fresh suit. Until this suit between the same parties is determined and the petitioner is put in
possession of her share, in my humble view the arguments that there is a different new civil suit between the
same parties over the same property is only academic and not a valid reason for this Court to terminate the
order of maintenance.”

It is clear from the above that on 18 November 2005, the Judge found that the withdrawal of the
originating summons by the applicant on 12 October 2004 without filing another originating summons
did not terminate the court orders for payments to the applicant. The only option open to the respondent
would be to appeal from that decision of the court and not to raise that issue, which was determined, in
this application. Therefore, I find no basis for the argument that the orders for maintenance lapsed on the
withdrawal of the originating summons, and I dismiss the same. I find that there is still a maintenance
order in force.
I turn to the second issue as to whether the applicant has a locus standi to make this application.
Counsel for the respondent argued that as the marriage had been dissolved and the decree for divorce
made absolute, she cannot file an application, unless there are specific orders of the court. The case
authority relied upon by the respondent counsel was the case of Willie v Muchuki Nakuru High Court
civil suit number 163 of 2004 (OS). That case is distinguishable from the present case. That case was a
case relating to an estate of a deceased person, in which the learned Honourable Justice Kimaru applied
the decision of the Court of Appeal in the case of Trouistik Union International v Ms Jane Mbeyu and
another [1990] LLR 229 (CAK) in which the Court of Appeal held that a person can only sue on behalf
of the estate of a deceased person, if he has obtained letters of administration. That position is not
applicable to matrimonial causes. In our present case, the court having made an order for maintenance
under section 25(2) of the Matrimonial Causes Act (Chapter 152) and which I have found is still alive,
the applicant has perfect locus standi to make the application that she made.
As for the abuse of the process of court, I have not been given any particulars on such alleged abuse.
The fact that someone files an application or a cause in court, whether it has high chances of success or
not, in my view, does not amount to an abuse of the process of the court. I find no abuse of the process of
court that has been committed by the applicant.
The fourth issue is whether the application is res judicata. Counsel for the respondent relied on my
ruling which I delivered on 9 September 2006. She also relied on the case of Willie Muchuki (supra).
Page 82 of [2007] 1 EA 76 (HCK)

What constitutes res judicata is stated under section 7 of the Civil Procedure Act (Chapter 21). For
res judicata to be established three conditions have to be fulfilled. Firstly, that there was a former suit or
proceedings in which the same parties as in the subsequent suit or proceedings litigated. Secondly, that
the matter in issue in the later suit must have been directly and substantially in issue in the former suit.
Thirdly, that a court competent to try it had heard and finally decided the matters in controversy between
the parties in the former suit.
In my ruling delivered on 9 September 2006, I struck out the application as being incurably defective.
I also allowed the applicant to file a fresh application. I did not hear and finally determine the issues in
dispute. Therefore the doctrine of res judicata does not apply in our present case.
Now, can I grant the orders sought? The substantive orders sought are:
(a) That this Honourable Court be pleased to order the committal of the respondent herein in jail for
failure to pay arrears of maintenance with effect from 30 October 2006;
(b) That this Honourable Court be pleased to order the attachment of a third of the respondent’s salary
in respect of maintenance with effect from 30 October 2006; and
(c) That costs of the application be provided for.
On the prayer for committal to jail, applicant depones in paragraph 10 of her affidavit, sworn on 23
October 2006, served with an order and a notice. I have perused the order which was issued by the
Deputy Registrar and dated 27 April 2005 and certified as a true copy by the Deputy Registrar on 27
April 2006. I see no notice for committal to jail by counsel for the applicant. Instead there is a note
written by one Raymond Karanu dated 9 October 2006 and addressed to Nita Ganatra which reads:
“Re: Rent Arrears
As you are aware you are now four months in rent arrears amounting to KShs 100 000. In the circumstances I
am contemplating a drastic action. I look forward to hearing from you before I take action.”

I see no notice to the respondent to pay the amount now claimed. The court order signed by the Deputy
Registrar merely states as follows:
“(1) The applicant be paying KShs 30 000 to the respondent/wife instead of KShs 40 000;
(2) This order be effective from 1 January 2000.”

Under rule 59(2) of the Matrimonial Causes Rules the respondent was to be served with a notice in Form
16 of the appendix to the Rules, which would be in the following words:
“Take notice that if you the within-named AB neglect to obey this decree or order within the time herein
limited you will be liable to process of execution for the purpose of compelling you to obey the same.
Advocate for the.”

In our present case the respondent does not appear to have been served with that notice. In that event, I
cannot grant the prayer for committal of the respondent to jail, unless the applicant makes an application,
after complying with the law. I wish to state here that the applicant can make such a proper application,
my rejection of their prayer notwithstanding.
Page 83 of [2007] 1 EA 76 (HCK)

On the attachment of a third of the respondent’s salary, I am not told how much his salary is.
However, it is evident that he has defaulted in payment of amounts which are due from ... He has
defaulted consistently for a long time. In his replying affidavit sworn on 21 November 2006, the
respondent does not depone to financial difficulty nor to inability to pay. He merely depones that he is
not liable to pay any maintenance to the applicant on technical grounds such as the withdrawal of the
originating summons for division of matrimonial property, res judicata and that the court is functus
officio.
I am of the view that the maintenance orders have been and are in force, and I therefore order that one
third of his (respondent’s) monthly income ... KShs 30 000 be attached and be paid to the applicant Nita
Subhash Ganatra. Arrears can only be dealt with in a proper application for committal.
The respondent will pay applicant the costs of this application.
It is so ordered.
For the applicant:
Ms Thongori
For the respondent:
Mrs Wambugu

Githuku v Republic
[2007] 1 EA 83 (CAK)

Division: Court of Appeal of Kenya at Nairobi

Date of judgment: 27 April 2007
Case Number: 119/04
Before: O’kubasu, Onyango-Otieno and Deverell JJA
Sourced by: LawAfrica
Summarised by: C Kanjama

[1] Appeal – Second appeal – Can only deal with questions of law.
[2] Criminal Procedure – Detention before charge – 17 day detention on capital charge – Whether
violation of constitutional rights of accused caused substantial prejudice – Whether court should
disregard the violation or should acquit accused and commute the sentence – Section 72(3) Constitution
of Kenya.
[3] Criminal Procedure – Language of court – Evidence and cross-examination in Kiswahili – Whether
accused was prejudiced by the use of Kiswahili – Section 198 Criminal Procedure Code.
Editor’s Summary
The appellant with two other persons was charged with the offence of robbery with violence and
convicted. He lost his first appeal and instituted this second appeal. He argued that the proceedings in the
trial court were in Kiswahili, a language he was not familiar with. He also argued that he was kept in
custody for seventeen days, three more than the constitutional limit, hence the conviction was irregular.
Held – On a second appeal only questions of law can be dealt with.
Page 84 of [2007] 1 EA 83 (CAK)

There was no evidence that the appellant was unable to understand and follow the trial in Kiswahili.
He chose to cross-examine the prosecution witnesses in that language. The appellant therefore had no
grounds of complaint.
A person detained upon reasonable suspicion of having committed a capital crime should be brought
before a court within fourteen days of his arrest or detention. The three day additional delay in bringing
the appellant to court did not give rise to substantial prejudice but nevertheless should not be disregarded.
Albanus Mutua v Republic criminal application 120 of 2004 (UR) followed.
In consideration of the fact that the accused had already been in custody for twelve years, the court
would quash the conviction and set aside the sentence of death.

Case referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Albanus Mwasia Mutua v Republic criminal appeal number 120 of 2004 (UR) – F

Judgment
O’Kubasu, Onyango-Otieno and Deverell JJA: Gerald Macharia Githuku (the appellant) who was the
second accused, in the Chief Magistrate’s Court at Nairobi criminal case number 429 of 1995, is
appealing against the judgment of the High Court at Nairobi criminal appeal number 1155 of 1995
(Kimaru and Makhandia JJ), delivered on the 10 February 2004 on an appeal from the decision of the
Chief Magistrate’s Court (Mrs CW Meoli) delivered on 7 August 1995.
The Chief Magistrate’s Court convicted the appellant together with John Wanjohi Ndegwa (Ndegwa)
who was the third accused and Alfred Machiri Macharia (Macharia) who was the first accused, of the
offence of robbery with violence contrary to section 296(2) of the Penal Code and all three were
sentenced to death.
Ndegwa and Macharia lodged appeal numbers 1153 of 1995 and 1154 of 1995 respectively, against
their convictions and sentences in the Superior Court but before their respective appeals could come for
hearing they both died whilst in prison custody, so that their appeals to the Superior Court abated.
The appellant filed appeal number 1155 of 1995 in the Superior Court which was dismissed. The
appellant’s appeal to this Court is therefore a second appeal and can only be allowed by this Court if it
finds that the Superior Court erred on a point of law.
Mr Mutuamwari, learned counsel for the appellant, relied on the grounds of appeal set out in the
Supplementary Grounds of Appeal dated 13 February 2007 as follows:
“(1) The trial Magistrate and the first appellant (sic) court erred in fact and law by convicting and
sentencing the appellant to death despite the fact that his constitutional rights as enshrined in section
72(3) of the Constitution has (sic) been violated.
Page 85 of [2007] 1 EA 83 (CAK)
(2) The trial Magistrate erred in law in failing to observe the provisions of the Criminal Procedure Code
(Chapter 75 of the Laws of Kenya).
(3) The first appellant (sic) court erred in law and in fact by affirming the decision of the trial Magistrate
whilst there is material contradiction in evidence.
(4) The first appellant (sic) court erred in law and in fact by affirming the decision of the trial Magistrate
notwithstanding of (sic) the fact that she did not give proper consideration to the evidence for the
defence by balancing it against that for the prosecution.
(5) The first appellant (sic) court erred in law by affirming the decision of the trial Magistrate despite the
fact that there was not evidence on record that the trial in the Lower Court was conducted in a
language the appellant understood contrary to the provisions of section 77(2) of the Constitution and
section 198 of the Criminal Procedure Code.
Wherefore the appellant prays that the appeal be allowed, conviction quashed and sentence set aside.”

We will first consider the point of law raised by defence counsel in his reliance on section 198(2) and (4)
of the Criminal Procedure Code which states:
“198(1) Whenever any evidence is given in a language other than English not understood by the accused,
and he is present in person, it shall be interpreted to him in open court in a language which he
understands.
198(4) The language of High Court shall be English, and the language of a Subordinate Court shall be
English or Swahili.”

The record of the trial court shows that the evidence of PW1, PW2, PW3, PW4, PW5, and PW6 was
given in Kiswahili. There is nothing in the record to suggest that the appellant (the second accused) was
not able to understand Kiswahili. He chose to cross-examine PW2, PW3, PW4, PW5, and PW6. The
record does not state that the cross-examination of these witnesses by the appellant and other accused
persons was in any language other than the language, Kiswahili, chosen by the respective witnesses.
The complainant, PW1 was not cross-examined by any of the accused persons. In these circumstances
we do not consider that the appellant has any grounds for complaint that section 198 of the Criminal
Procedure Code (supra) was infringed.
The particulars of offence in the Charge Sheet dated 30 January 1995 stated:
“1. Alfred Muchiri Macharia 2. Gerald Macharia Githuku 3. John Wanjohi Ndegwa. On 13 January 1995 at
Pangani shopping centre within the Nairobi area, jointly while armed with a toy pistol robbed Stephen
Kariuki Kamweru of motor vehicle Registration number KMH 853 Datsun 1600 Saloon valued at
KShs 175 000, cash KShs 2 500, pair of shoes, coat, wrist watch make RADO, socks and 4 cheque books all
valued at KShs 9 100 and at or immediately before or immediately after the time of such robbery used
personal violence to the said Stephen Kariuki Kamweru.”

The date of arrest was stated in the Charge Sheet to have been 13 January 1995 and the “date to court”
was stated to be 30 January 1995 some 17 days later.
Section 72(3) of the Constitution states:
“72(3) A person who is arrested or detained:
(a) for the purpose of bringing him before a court in the execution of the order of the court; or
(b) upon reasonable suspicion of his having committed or being about to commit, a criminal
offence, and who is not released, shall be brought before a court as soon as is reasonably
practicable, and
Page 86 of [2007] 1 EA 83 (CAK)
where he is not brought before a court within twenty- four hours of his arrest or from the
commencement of his detention, or within fourteen days of his arrest or detention where he is
arrested or detained upon reasonable suspicion of his having committed or about to commit an
offence punishable by death, the burden of proving that the person arrested or detained has
been brought before a court as soon as is reasonably practicable shall rest upon any person
alleging that the provisions of this sub-section have been complied with.”

The record of the Chief Magistrate (Mrs UP Kidula) for the first day of the proceedings does not,
unfortunately, state the date of the first day on which the pleas were taken of the three accused and their
pleas of not guilty recorded and the hearing date was fixed for 24 March 1995. The hearing in fact is
recorded as having eventually commenced on 31 May 1995 and was concluded on 30 June 1995. The
judgment of the Chief Magistrate was delivered on 7 August 1995.
Learned counsel for the appellant, Mr Mutuamwari relied on the case of Albanus Mwasia Mutua v
Republic criminal appeal number 120 of 2004 (UR) in which this Court (Omolo, Githinji (dissenting) and
Deverell JJA) had this to say in relation to section 72(3) of the Constitution.
“At the end of the day it is the duty of the courts to enforce the provisions of the Constitution, otherwise there
would be no reason for having those provisions in the first place. The jurisprudence which emerges from the
cases we have cited in the judgment appears to be that an unexplained violation of a constitutional right will
normally result in an acquittal irrespective of the nature and strength of evidence which may be adduced to
support the charge. In this appeal, the police violated the constitutional right of the appellant by detaining him
in their custody for a whole eight months and that, apart from violating his rights under section 72(3)(b) of the
Constitution also amounted to a violation of his rights under section 77(1) of the Constitution which
guarantees to him a fair hearing within a reasonable time. The deprivation by the police of his right to liberty
for a whole eight months before bringing him to court so that his trial could begin obviously resulted in his
trial not being held within a reasonable time. The appellant’s appeal must succeed on that ground alone.”

The Albanus case (supra) was clearly a more extreme case than that now before us. However, as the
Court stated in that case:
“On the one hand is the duty of the courts to ensure that crime, where it is proved, is appropriately punished:
this is for the protection of society; on the other hand it is equally the duty of the courts to uphold the rights of
persons charged with criminal offences, particularly the human rights guaranteed to them under the
Constitution.”
We have come to the conclusion, after a careful weighing of these two considerations in the light of the
facts of the present case, that although the delay of three days in bringing the appellant to court 17 days
after his arrest instead of within 14 days in accordance with section 72(3) of the Constitution did not give
rise to any substantial prejudice to the appellant and although, on the evidence, we are satisfied that he
was guilty as charged, we nevertheless do not consider that the failure by the prosecution to abide by the
requirements of section 72(3) of the Constitution should be disregarded. Although the offence for which
he was to be charged was a capital offence, no attempt was made by the Republic, upon whom the burden
rested, to satisfy the court that the appellant had been brought before the court as soon as was reasonably
practicable.
Page 87 of [2007] 1 EA 83 (CAK)

In reaching this conclusion we have also been mindful of the fact that the appellant has now been in
custody for in excess of twelve years and that his two co-accused have died while in custody.
We therefore hereby order that the appeal be allowed, the appellant’s conviction quashed and the
sentence of death is set aside. The appellant is hereby ordered to be set at liberty forthwith unless
otherwise lawfully held.
For the appellant:
Mr Mutuamwari
For the respondent:
Information not available

Gulam and another v Jirongo

[2007] 1 EA 87 (CCK)

Division: Milimani Commercial Courts of Kenya at Nairobi

Date of ruling: 17 November 2006
Case Number: 393/06
Before: Ochieng J
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Civil procedure – Affidavits – Effect of providing false information in an affidavit.

[2] Civil procedure – Principles of calculation of time – Whether Order 21, rule 18 is subject to Order
49, rule 3 – Effect of failure to serve notice to show cause why execution should not proceed.

Editor’s Summary
The defendant filed an application for stay of execution for the time it takes him to prosecute the
application for lifting of the proclamation and attachment of his assets on the grounds, inter alia, that it
had filed an application to set aside the sale of the property but it had been adjourned severally due to the
plaintiff’s applications; that the entire execution process was unfounded because the decree had been
compromised, the execution process was irregular as one year had passed since the date of the decree but
it was not commenced by way of a notice to show cause. The plaintiff however submitted, as regards the
last round, that in calculating the period of one year as envisaged under Order XXI, rule 18 of the Civil
Procedure Rules the period between the 21 December and the 6 January in the year next following must
be excluded.
Held – A significant portion of the grounds that the application was founded on, were inaccurate.
 To swear an affidavit within which somebody gives facts about which the person is not sure, is wrong.
And, when the same person swears, more than one affidavit in which he gives different facts about any
particular issue that person must be deemed to be having no regard for the sanctity of the oath
administered by a Commissioner for Oaths.
Where the language of any statutory provision, rule or regulation is clear, the court should not look
beyond the ordinary meaning thereof. As Order XXI, rule 18 is clear, there is no need to carry out any
process of computation in
Page 88 of [2007] 1 EA 87 (CCK)
order to determine whether or not the application for execution had been filed more than one year after
the date of the decree. There can be no room for any doubt that 15 March 2006 was more than one year
after the 14 March 2005 when the decree was issued. This reasoning easily fits in with the provisions
such as those in the Limitation of Actions Act wherein the calculations of the limitation periods are based
on the actual dates as opposed to computation. Further, the plaintiff did not demonstrate to the court why
the provisions of Order XXI, rule 18 should be subject to those of Order XLIX, rule 3A. Therefore, there
is no basis for holding that in applying the provisions of Order XXI, rule 18 the court is obliged to carry
out a computation in accordance with Order XLIX, rule 3A.
The plaintiff should have made an application by way of a notice to show cause. As they did not do
so, the proclamation and attachment pursuant to the execution application filed on 15 March 2006, was
irregular. It is therefore lifted and set aside.
Application allowed.

Cases referred to in ruling

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

No cases referred to in ruling

Ruling
Ochieng J: The defendant has moved this Court by a chamber summons dated 27 March 2006. He seeks
a stay of execution for the period that it takes him to prosecute his prayer for the lifting or setting aside of
the proclamation and attachment of his assets.
Essentially, therefore, the substantive application is for the setting aside of the attachment of the
defendant’s assets.
The grounds set out on the face of the application are very pertinent to the case, as will become
apparent in due course. For that reason, I deem it necessary to set out, verbatim, the said grounds, which
are as follows:
“(a) The plaintiff/decree holder has purported to obtain warrants of execution against the defendant for the
sum of KShs 66 259 640-50.
(b) The plaintiff/decree holder has already purported to sell the defendant/applicant’s property to wit Land
Reference number 1160/230 valued at KShs 40 million albeit, fraudulently and unlawfully to a third
party allegedly by auction at a gross undervalue.
(c) The applicant herein has challenged the said sale.
(d) There had been no account of the proceeds of the purported sale.
(e) Unless there is a stay of execution of the said warrants in the terms of this application, the defendant
stands to suffer irreparable loss and damage.
(f) All the matters set out in the annexed affidavit of Cyrus Shakhalaga Khwa Jirongo.”
Page 89 of [2007] 1 EA 87 (CCK)

Some of the significant depositions in Mr Jirongo’s affidavit include the assertions that the auction of the
property cited in (b) above, had realised the sum of KShs 20 million, at the purported auction conducted
on 29 July 2005.
The affidavit also states that the applicant was not given any credit for the proceeds of sale, when the
plaintiff drew up its execution application.
In any event, the applicant states that he had filed an application to set aside the sale of the property.
That application is said to have come up for hearing on several occasions, but its prosecution was
delayed due to the plaintiff’s applications for adjournments.
When faced with the application, the plaintiff not only filed grounds of opposition but also sought and
was granted leave to cross-examine Mr Jirongo.
During the said cross-examination, it became clear that a significant portion of the grounds upon
which the application was founded, were inaccurate, to say the least.
For instance, a perusal of the execution application which the plaintiff filed in court on 15 March
2006, clearly shows that the plaintiff had credited the applicant with the sum of KShs 25 million, which
was ascribed to the proceeds of the auction of sub-division number 1677 section 1 Mainland North
Ziwani Road, Nyali, Mombasa.
Therefore, when Mr Jirongo stated in his affidavit that the plaintiff had failed to give him credit, that
was erroneous.
Mr Jirongo was also mistaken when he deponed that the application to set aside the sale was
scheduled for hearing on 8 May 2006, and that the delays in hearing the application were attributable to
the plaintiff’s applications for adjournment. During cross-examination, it transpired that the said
application to set aside the sale had been set down for hearing on 5 December 2005, and also that the
plaintiff had never caused the adjournment of that application.
Mr Jirongo also conceded, during cross-examination, that he erred, when he deponed that the sale of
the real property in Mombasa was for a sum of KShs 20 million. That particular concession is significant,
if placed within its proper perspective. By that I mean that the court needs to bear in mind the timing of
the current affidavit, and to compare it to other times when the defendant cited what he deemed to be the
price for which the property was sold.
The starting point is to be found at paragraph 6 of the defendant’s affidavit which was sworn on 27
March 2006. It is then that the defendant said that the property had been sold for KShs 20 million.
Prior to that, the defendant had sworn in another affidavit on 22 August 2005, when he had brought an
application for an injunction, to restrain the plaintiffs from transferring or disposing of Land Reference
number 1160/230 and sub-division number 1677, section 1 Mainland North Ziwani Road, Nyali.
As at that date, the defendant deponed that the property had been sold for KShs 24 million.
When faced with the discrepancies between the various figures, as well as the dates given by the
defendant, his advocate, Mr Wandabwa submitted that the errors in Mr Jirongo’s affidavit were not
material to the application which was before the court. As far as the advocate was concerned, Mr Jirongo
had not made any attempt to mislead the court.
In all this, it must be noted that during his cross-examination, Mr Jirongo conceded having given
different figures to the court, at different times. And
Page 90 of [2007] 1 EA 87 (CCK)

when I talk of figures, I am making reference to the price for which the plaintiff is said to have caused the
property to be sold. Though the defendant’s advocate contended that his client did not intend to mislead
the court, he did not take the next logical step, which would have been to tell the court what exactly Mr
Jirongo’s intentions were.
But, at least Mr Jirongo willingly admitted that in view of the inconsistent figures, he had no idea
what the court was supposed to believe. He then added that nobody had told him the price at which the
property was sold.
In my considered opinion, Mr Jirongo must be deemed to have had little or any regard for the
seriousness that ought to be attached to an affidavit. I say so because to swear in an affidavit, within
which somebody gives facts about which the person is not sure, is wrong. And, when the same person
swears more than one affidavit, in which he gives different facts, about any particular issue, that person
must be deemed to be having no regard for the sanctity of the oath administered by a Commissioner for
Oaths.
It does appear to me that the grounds set out on the face of the application, as well as the depositions
in Mr Jirongo’s affidavit were calculated to persuade the court to grant the orders sought. In the process,
the plaintiff was portrayed as having delayed the hearing of the defendant’s application to set aside the
sale. The plaintiff was also portrayed as having failed to give credit to the defendant for the sums which
had been realised upon the sale of the property in Mombasa.
But, as has transpired, those portrayals of the plaintiff were anything but accurate. Therefore, that
leads me to the inescapable conclusion that the defendant had conducted himself in an unbecoming
manner.
In the circumstances, if the application was determinable on the basis of the court’s discretion alone, I
would have had no hesitation at all, in telling the defendant that he was not worthy of the court
discretion.
For now, I must also take into account the defendant’s contention that the whole execution process
was unfounded, because the decree had been compromised.
In that regard, the defendant relies on the contents of the order numbered 2(I) of the Decree issued on
14 March 2005. That order reads as follows:
“That the property known as sub-division number 1677 section 1, Mainland North, Ziwani Road, Nyali
Mombasa, shall at the expiry of 90 days from the date hereof be auctioned by a recognised Court Broker
appointed by the plaintiffs. The proceeds thereof shall be applied as follows:
(i) In satisfaction of the decretal amount herein under clause 1 above and clause 3 hereinafter.
(ii) If there is surplus over and above the said sum, the same shall be paid over to the defendant.”

For the sake of completeness, it is pointed out that clause 1 basically granted judgment in favour of the
plaintiff for KShs 45 848 750 together with interest thereon at 15% per annum, from 1 July 2003, until
payment in full. And clause 3 stipulated that the defendant would pay the costs of the suit.
In the face of that line of submissions, the plaintiff pointed at clause 4 of the Decree. That clause
provided as follows:
“That in the event that the defendant pays to the plaintiff the sum of KShs 25 million on or before 30 April
2005, the same shall be accepted in full and final settlement of the decree herein. In such an event the plaintiff
shall transfer the said immovable
Page 91 of [2007] 1 EA 87 (CCK)
property to the defendant and/or his nominee as directed by him, the cost of which shall be borne by the
defendant. Further in this event each party shall bear its own costs.”

Another issue which was raised by the defendant was that the execution process was irregular, in so far
as the same was not commenced by way of a notice to show cause.
The defendant pointed out that the decree was more than one year old, as at 15 March 2006, and that
thereafter, it could only have been lawfully executed through a notice to show cause.
In answer, the plaintiff submitted that in calculating the period of one year, as envisaged under Order
XXI, rule 18 of the Civil Procedure Rules, the period between the 21 December and the 6 January in the
year next following, must be excluded.
In order to have a better understanding of the rule, it is hereby set out. It reads:
“18(1) Where an application for execution is made:
(a) more than one year after the date of the decree; or
(b) against the legal representative of a party to the decree; or
(c) for attachment of salary or allowance of any person under rule 43,
the court executing the decree shall issue a notice to the person against whom execution is applied
requiring him to show cause, on a date to be fixed, why the decree should not be executed against
him…”

On the face of it, the rule appears straightforward. In other words, provided the execution was being
undertaken, such as in this case, on a date which was more than one year after the date of the decree, the
defendant should have been served with a notice to show cause why the execution should not issue
against him.
The reason why there would appear to have been need for that notice is that the decree was issued on
14 March 2005, whilst the execution application was filed in court on 15 March 2006.
But, the plaintiff contends that regard must be had to the provisions of Order XLIX, rule 3A of the
Civil Procedure Rules, when calculating the period of one year. That rule stipulates as follows:
“Except where otherwise directed by a Judge for reasons to be recorded in writing, the period between the
twenty first day of December in any year and the sixth day of January in the year next following, both days
included, shall be omitted from any computation of time (whether under these Rules or any order of the court)
for the amending, delivering or filing of any pleadings or the doing of any other act:
Provided that this rule shall not apply to any application in respect of a temporary injunction.”

Whereas, the reasoning advanced by the plaintiff appears attractive, I hold the view that it is inaccurate. I
say so because I believe that where the language of any statutory provision, rule or regulation is clear, the
court should not look beyond the ordinary meaning thereof.
As Order 21, rule 18 is clear; I find that there is no need to carry out any process of computation, in
order to determine whether or not the application for execution had been filed more than one year after
the date of the decree. To my mind, there can be no room for any doubt that 15 March 2006 was more
than one year after the 14 of March 2005, when the decree was issued.
Page 92 of [2007] 1 EA 87 (CCK)

My said reasoning easily fits in with the provisions such as those in the Limitation of Actions Act,
wherein the calculations of the limitation periods are based on the actual dates, as opposed to
computation.
Furthermore, the plaintiff did not demonstrate to me why the provisions of Order 21, rule 18 should
be subject to those of Order 49, rule 3A. Therefore, I see no basis for holding that in applying the
provisions of Order 21, rule 18, the court is obliged to carry out a computation in accordance with Order
49, rule 3A.
Being of that persuasion, I find that the plaintiff should have made an application by way of a notice
to show cause. As they did not do so, the proclamation and attachment pursuant to the execution
application filed on 15 March 2006 was irregular. It is therefore hereby lifted or set aside.
Having reached that verdict, it implies that the plaintiff will have to file fresh execution proceedings,
if it is still minded to pursue the matter. For that reason, I decline to express any views on the question as
to whether or not the whole execution process should have begun, on the grounds that the decree had
been compromised. I believe that if called upon to show cause why execution should not issue, the
defendant will advance such arguments before the court which will be dealing with the notice to show
cause.
Finally, I hold the view that each party should bear its own costs. I say so, firstly because as I already
indicated, the defendant has conducted himself in such manner as to render himself unworthy of the
court’s discretion in this application.
Secondly, I hold the view that the plaintiff is not responsible for the issuance of the warrants which
were executed against the defendant. The plaintiff only made an application to the court. The said
application could have been rejected or allowed. The decision to issue the warrants rested squarely with
the court. Therefore, if there was an error, the plaintiff ought not to bear the blame for it.
For those reasons, each party will bear his own costs.
For the appellant:
Information not available
For the respondent:
Information not available

Imbogo v Kenya Sugar Board and others

[2007] 1 EA 92 (HCK)

Division: High Court of Kenya at Nairobi

Date of ruling: 12 July 2006
Case Number: 361/06
Before: Wendoh J
Sourced by: LawAfrica
 Sourced by: LawAfrica
Summarised by: E Ongoya

[1] Contempt of Court – Procedure for commencing contempt of court proceedings.

[2] Judicial review – Scope of judicial review – Whether Civil Procedure Rules apply to judicial review.
Page 93 of [2007] 1 EA 92 (HCK)

Editor’s Summary
On 29 June 2006, the ex parte applicant approached court by way of a chamber summons seeking the
leave of the court to bring judicial review proceedings for orders of certiorari and prohibition. The court
granted the applicant leave to bring judicial review proceedings and the same leave was ordered to
operate as stay. The court ordered that the substantive motion be filed within 14 days of the date of leave.
Having filed the substantive motion, the applicant, then filed a notice of motion dated 13 July 2006,
seeking leave of the court to cite the third and fourth respondents for contempt of court. The respondents
raised preliminary objections to the application for leave raising grounds of res judicata, defectiveness
for want of a statement and a verifying affidavit in the same form as an application for judicial review.
Held – During the application for leave to commence contempt proceedings, the court has discretion to
hear both parties even though ordinarily, the application is heard ex parte.
A preliminary objection has to be a pure point of law and is urged on assumption that all facts are
correct. It is not a preliminary objection if there is need for evidence to ascertain a fact – Mukhisa
Biscuits Manufacturing Company Limited v West End Distributors Limited [1969] EA 969 followed.
The remedy of judicial review is concerned with reviewing not the merits of the decision in respect of
which the application for judicial review is made but the decision making process itself. – Supreme Court
Practice 1997 Volume 53/1 - 14/6 adopted.
For a matter to be res judicata, there must be a suit which has been heard and determined on merit
regarding the same parties and issues.
Judicial review is a special jurisdiction and when being exercised the Court is neither exercising civil
nor criminal jurisdiction and Civil Procedure Rules do not apply. Commissioner of Lands v Kunste civil
appeal [1995] LLR 2488 (CAK) adopted.
An application for leave to commence contempt proceedings ought to be modelled along the same
lines as a judicial review application by chamber summons. A notice has to be served on the registrar not
later than the preceding day to the filing of the application. The application has to be accompanied by a
statement and a verifying affidavit.
By virtue of the provisions of Order LIII, rule 1(2) of the Civil Procedure Rules, an application for
leave is made in chambers and the application is accompanied by a statement of facts, affidavits verifying
the facts. It is the affidavits verifying the facts in the statement that is served with the notice of motion.
There is no requirement that the applicant files the notice of motion with other affidavits or documents.
Application dismissed.

Cases referred to in ruling

East Africa
Awadh v Marumbu 2004 KLR 454
Commissioner of Lands v Kunste civil appeal [1995] LLR 2488 (CAK) – A
Page 94 of [2007] 1 EA 92 (HCK)

Mukhisa Biscuits Manufacturing Company Limited v West End Distributors Limited [1969] EA 969 – F
Nyamodi Nyamogo v KPTC civil appeal [1993] LLR 2774 (CAK)
Pop-in (K) Limited v Habib Bank AG Zurich civil appeal number 80 of 1998 (UR)
Rep v Judicial Commission of Inquiry into the Goldenberg Affairs and another ex parte Koinange and
others number 2 2003 KLR 606
Republic v Communication Commission of Kenya [2000] LLR 3041 (CAK)

Ruling
Wendoh J: On 29 June 2006, the ex parte applicant, Benjamin Shamala Imbogo came to this Court by
way of chamber summons seeking the leave of the court to bring judicial review proceedings for orders
of certiorari and prohibition.
The application was placed before the Judge on 30 June 2006. The court granted the applicant leave
to bring judicial review proceedings and the said leave was ordered to operate as stay. The court ordered
that the substantive motion be filed within 14 days of that date. I have seen no record that the substantive
notice of motion was filed on 12 July 2006.
On 13 July 2006, the applicant filed a notice of motion dated the same day in which the applicant
sought leave of this Court to cite the third respondent, Saulo Wanambisi Busolo and Andrew Oloo
Otieno for contempt of the court orders given by this Court on 30 June 2006.
The application was argued ex parte but as Mr Wati, counsel for the applicant drew to the close of his
submissions, Mr Okonjo came in and claimed to be on record for the second and third respondents and
expressed his wish to oppose the application for leave. The court adjourned the matter.
Meanwhile on 18 July 2006, Rachier and Amolo, counsels for the first respondent filed the notice of
motion dated 17 July 2006 seeking to set aside the ex parte orders granted on 30 June 2006 by this Court
they also filed notice of preliminary objection dated the 17 July 2006.
A preliminary objection dated 19 July 2006 and filed by Kwame Advocate who was then appearing
for the third respondent was withdrawn. Another preliminary objection filed by the same advocate on 18
July 2006 was abandoned. The court noting the preliminary objection and the application to set aside
gave directions that the preliminary objection be heard first before the court heard the respondent on the
application dated 13 July 2006 for leave to cite the third respondent and two others for contempt of court.
It is my view that the court has discretion to hear both parties even at leave stage even though
ordinarily, the application is heard ex parte. The preliminary objection dated 18 July 2006 and 19 July
2006 having been withdrawn, the court went on to hear the preliminary objection dated 17 July 2006
filed by the first respondent.
The grounds upon which the preliminary objection was brought are as follows:
(1) The applications are bad in law and fundamentally defective for being contrary to the provisions of
section 12 of the Sugar Act, 2001.
(2) The applications are bad in law and fundamentally defective for want of jurisdiction and for being
contrary to section 31 of the Sugar Act, 2001
Page 95 of [2007] 1 EA 92 (HCK)

which establishes the Sugar Arbitration Tribunal for the purposes of arbitrating disputes between
any parties under the Act.
(3) The applications are bad in law and fundamentally defective for being inconsistent with the
provisions of section 3 of the Sugar Act, 2001 for want of capacity of the applicant.
(4) That applications are bad in law and fundamentally defective for being inconsistent with the
provisions of the Government Proceedings Act Chapter 40 of the LOK.
(5) That application for leave to institute contempt proceedings in particular, is res judicata.
(6) The applications are in any event mis-guided, misplaced, misconceived, bad in law and
fundamentally defective.
Mr Kaka, counsel for the third and fourth respondents agreed with the submissions of Mr Amolo on the
preliminary objection but Mr Wati opposed the preliminary objection.
Mr Amolo urged that the applications filed by the applicants are barred by the doctrine of estoppel and
res judicata in its extended form and constitutes an abuse of the court process. This is because the
applicant sought and obtained orders in CMCC 368/06 at Kakamega, which orders are similar to these
sought in this judicial review proceedings. In CMCC 368/06 the court granted an order of injunction
restraining the respondent.
The lower court matter CMCC 368/06 still subsists and that orders granted therein were not served in
time and that contempt proceedings have also been commenced in the lower court matter. Counsel
submitted that the institution of this matter offends provisions of section 7 and 8 of the Civil Procedure
Act which the Court of Appeal has described as res judicata in its extended form and an abuse of the
court process.
On this point reliance was made on the case of Pop-in (K) Limited v Habib Bank AG Zurich civil
appeal number 80 of 1998 (UR) where an objection was raised because several cases had been filed and
withdrawn regarding the same matter and therefore the court found that they were barred by res judicata
in its extended form. Counsel urges the court to find these proceedings to be res judicata since the lower
court case subsists.
The second limb of the objection is that the application for leave to bring contempt proceedings is
defective because it should be supported by a statement, a verifying affidavit and should be in the same
form of an application seeking leave to bring judicial review proceedings. There must also be a notice to
the Registrar. Counsel relied on the case of Awadh v Marumbu 2004 KLR 454 where the court stated that
the law governing contempt of court proceedings is provided for under section 5 of the Judicature Act
which adopts the practice and procedure exercised in England.
The same finding was reached in Rep v Judicial Commission of Inquiry into the Goldenberg Affairs
and another ex parte Koinange and others number 2 2003 KLR 606.
The third limb of the objection is that the contempt proceedings are defective in that the third
respondent was being cited for contempt, meaning that he had already been found guilty of contempt.
Page 96 of [2007] 1 EA 92 (HCK)

The fourth ground of objection is that the applicant has not exhibited any evidence of service of the
order endorsed with penal consequences which the contemnor is alleged to have been in contempt of.
Counsel submitted that there is no affidavit of service annexed to the application. He relied on the case of
Nyamodi Nyamogo v KPTC civil appeal [1993] LLR 2774 (CAK) where the court held that the order
served must be endorsed with a notice of penal consequences as per requirements of section 5 of the
Judicature Act. Further to the above, the service of the order must be personal.
The fifth ground of objection is that the court in granting leave to bring judicial review proceedings
on 30 June 2006, the court ordered that the substantive notice of motion be filed within 14 days and in
default orders vacate automatically. It is the respondent’s contention that no competent notice of motion
has been filed because the notice of motion filed on 12 July 2006 does not have any supporting affidavit
and is therefore not a notice of motion.
Further to the above, counsel urged that the notice of motion does not comply with the court order in
that a new prayer has been included in the notice of motion requesting for removal of the chairman and
that is unprocedural.
Lastly, it is the respondent’s contention that the order as extracted, is incapable of enforcement. The
applicants came to court on 30 June 2006 to stop a meeting that took place on 27 June 2006. The order
was extracted on 3 July 2006. Gazette Notices were issued on 28 and 29 and that by the time they came
to court, all that they sought to stop had already been done.
In his response Mr Wati said that the issues raised are not pure issues of law that need to be raised in a
preliminary objection. He said that the issue of service of the order with penal consequences is a matter
of evidence and cannot be taken as a preliminary objection.
On the issue of whether the application for contempt is properly before the court, Mr Wati referred to
Black’s Law Dictionary on the meaning of the word “cite” which means “to summon before a court of
law or to refer to or adduce as precedent or authority or to commend or honour”. The application is
therefore proper.
In regard to filing of the notice of motion without a supporting affidavit, Mr Wati said that that issue
cannot be raised as a preliminary objection. He cited Order 53, rule 4(1) and (2) which provides that a
notice of motion should be filed on its own but served with the statement and verifying affidavit and if
any other affidavit is filed, one would need to seek leave of the court.
Mr Wati further submitted that an application for leave to bring contempt proceedings is usually heard
ex parte and the party who is in contempt should not be heard at ex parte stage and this is a situation
where the respondents are in contempt and yet they are being heard. Since the order that was disobeyed is
not challenged or set aside it is still valid and the respondent cannot be heard on merit.
It was his argument that even where service is not proper, the court should grant leave pending
service.
In respect of the objection on there being no penal notice endorsed on the court’s order, the counsel
said that it was properly endorsed in accordance with Order 45, rule 7(4) of the Supreme Court Practice
1999 Volume 1.
Page 97 of [2007] 1 EA 92 (HCK)

Mr Wati urged that the doctrine of res judicata does not apply to judicial review proceedings. He
relied on the Court of Appeal decision in Commissioner of Lands v Kunste civil appeal [1995] LLR 2488
(CAK) where the court held that judicial review is a special jurisdiction and when the court held that
judicial review is concerned not with merits of the decision but the decision making process. His
submission is that the Kakamega case deals with breach of one’s rights whereas the present one is
attacking the process of decision making. In any event he submits that the Kakamega case is not yet
finalised and all the court can do is stay one of the cases and let one proceed.
In response to the submissions that the notice of motion for contempt of court order did not have a
statement and verifying affidavits, he said the same had been filed with the application for judicial
review and the applicant need not have filed others.
On the order extracted from court, Mr Wati said, it was issued on 30 June 2006, extracted on 3 July
2006 and all parties were served by 5 July 2006. The Gazette Notice was published on 7 July 2006, two
days after service of the order. Counsel’s contentions is that the Gazette Notice came into effect on 7 July
2006 not on 28 and 29 June 2006 as submitted by Mr Amolo.
I have now considered the rival arguments of both counsel on the preliminary objection and the
authorities relied upon.
Before considering the arguments maybe we should remind ourselves what a preliminary objection is.
The case of Mukisa Biscuits Manufacturing Company Limited v West End Distributors Limited [1969]
EA 969 sets out what a preliminary objection is and what it should contain. Justice Law (at page 700) of
the Court of Appeal had this to say of a preliminary objection:
“In so far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which
arises by clear implication out of pleadings and which if argued as a preliminary point, may dispose of the
suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation or a submission that the
parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

At page 701 Sir Newbold said:

“A Preliminary Objection is in the nature of a demurrer. It is a pure point of law which is argued on the
assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be
ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of
preliminary objection does nothing but unnecessarily increase costs and on occasion confuse the issues. This
improper practice should stop.”

From this quotation, a preliminary objection has to be a pure point of law and is argued on assumption
that all facts are correct. It is not a preliminary objection if there is need for evidence to ascertain a fact.
This is what the court will bear in mind as it considers the various points raised by the respondents and
the response thereto.
What is the scope of judicial review:
“The remedy of judicial review is concerned with reviewing not the merits of the decision in respect of which
the application for judicial review is made but the decision making process itself. It is important to remember
in every case that the purpose of the remedy of judicial review is to ensure that the individual is given fair
treatment by the authority to which he has been subjected and it is no part of that purpose to
Page 98 of [2007] 1 EA 92 (HCK)
substitute the opinion of the judiciary or of individual judges for that of the authority constituted by aw to
decide matters in question.”

Supreme Court practice 1997 Volume 53/1–14/6.

From a reading of the above quotation, judicial review jurisdiction is different from other civil suits
which are brought on the merits. Whereas judicial review deals with review of the process. Would a plea
that the matter is res judicata be sustained in the circumstances?
Section 7 of Civil Procedure Act provides as follows:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly
and substantially in issue in a former suit between the same parties or between parties under whom they or
any of them claim, litigating under the same title, in a court competent to try such subsequent suit of the suit
in which such issue has been subsequently raised and has been heard and finally decided by such court.”

For a matter to be res judicata, there must be a suit which has been heard and determined on merit
regarding the same parties and issues. In the case before the Chief Magistrate’s Court in Kakamega
CMCC 368 of 2006 involving both these parties, it is conceded that the matter is ongoing. Even if parties
are similar and issues are similar, it cannot be res judicata because the case has not been heard and
determined.
Mr Amolo submitted that this matter is res judicata in its extended form and referred to the case of
Pop-in (K) Limited. That case was a normal civil dispute not brought under judicial review. Section 8 of
the Law Reform Act which donates jurisdiction to Order LIII, Civil Procedure Rule denies this Court
civil or criminal jurisdiction when exercising judicial review jurisdiction. It is based on that provision
that the civil appeal in Commissioner of Lands v Kunste Hotel Limited [1995] LLR 2488 (CAK) held,
that judicial review is a special jurisdiction and when being exercised the court is neither exercising civil
nor criminal jurisdiction and Civil Procedure Rules do not apply. Similarly, in the case of Republic v
Communication Commission of Kenya [2000] LLR 3041 (CAK) the Court of Appeal came to a similar
conclusion. The respondent cannot therefore purport to invoke section 7 and 8 of the Civil Procedure Act
in these proceedings in any event, because of the nature of the judicial review proceedings, even if the
matter in CRCMS Court Kakamega had been finalised, this application would not have been res judicata
because judicial review would be attacking the process rather than the merits. That ground of objection
must fail.
Is the application for leave to bring contempt proceedings properly before this Court?
I do agree with the respondent’s submission that the whole application seeking leave to bring
contempt proceedings is defective and incompetent and the orders for leave cannot be granted. The
application should have been modelled on judicial review application by chamber summons for leave as
was held in the two cases referred to – the Awadh case and Republic v Judicial Commission of Enquiry in
the Goldenberg Affair.
A notice had to be served on the registrar not later than the preceding day to the filing of the
application. The application had to be accompanied by a statement and a verifying affidavit. All these
requirements were not observed. The applicant merely filed a notice of motion with a supporting
affidavit. I hold that the application dated 13 July 2006, is fatally defective. In the said notice of
Page 99 of [2007] 1 EA 92 (HCK)

motion the applicant sought orders against Saulo Wanambisi Busolo and Andrew Oloo Otieno, who were
not parties to this suit. There had been no application to enjoin them to the application and their names
would have been struck off in any event. I uphold the objection and the notice of motion dated 13 July
2006 is therefore struck out.
As regards the issue of service of the order which the respondents are said to have been in contempt
of, I wish to note first of all, that the application dated 13 July 2006 had been brought ex parte and the
respondent’s counsel came into chambers just after the court heard the applicant but had not made any
orders as to whether leave would be granted or not. In my view this Court has discretion to hear both
parties even at leave stage which in a way it has done. As regards service of the order on the applicants, I
hold that the issue of service is not a point of law. It is contested, as facts are not agreed as to whether the
respondent was served or not. It cannot be taken up as of preliminary point and that objection must fail.
Is the notice of motion (substantive application) dated 12 July 2006 properly before this Court? It is
not supported by any affidavit or annexure.
Under Order LIII, rule 1(2) of the Civil Procedure Rules, an application for leave is made in chambers
and the application is accompanied by a statement of facts, affidavits verifying the facts. Under rule 3(1)
the substantive motion (notice of motion) has to be filed within twenty-one days of the grant of leave.
Order 53(4)(1) provides that the copies of the statement accompanying the application for leave shall
be served with the notice of motion and copies of any affidavits accompanying the application for leave
shall be supplied on demand.
Under the above rule, there is no requirement that the applicant files the notice of motion with other
affidavits or documents. All the applicant needs to do is file the notice of motion and serve it with the
statement of facts and affidavits already filed with the chamber summons for leave. If the applicant
needed to file any affidavit with the notice of motion then he would have had to come under Order 53,
rule 4(2) and seek leave of the court to file further affidavits. The respondent also objected to the
inclusion in the notice of motion of a prayer which had not been included in the chamber summons and
statement. Order LIII, rule 4(1) provides that only relief’s sought in the notice of motion and statutory
statement can be granted. If there is a new prayer in the notice of motion that does not appear in the
statement, the court will not grant it and that cannot be a ground to be taken up as a preliminary objection
the court will grant. I do hold that the notice of motion was properly filed.
As regards the objection regarding the extracted order and whether it was capable of compliance, Mr
Amolo said that the Gazette Notice was issued on 28 and 29 June and so by the time the orders were
extracted and served, the legal notice was already in effect. Mr Wati says it is the date of publication, that
is 7 July 2006, that the legal notice came into effect. Section 27(1) of the Interpretation and General
Provisions Act (Chapter 2 LOK) gives us guidance on that. It states thus:
“All subsidiary legislation shall, unless it is otherwise expressly provided in a written law, be published in the
Gazette and shall come into effect on the day of publication, or, if it is enacted either in the subsidiary
legislation or in some other written law that the subsidiary legislation shall come into operation on some other
day, on that day subject to annulment where applicable.
Page 100 of [2007] 1 EA 92 (HCK)
(2) Notwithstanding anything in sub-section (1) where a written law contains a power to prescribe forms
then, unless it is otherwise expressly provided therein, these forms need to be published in the
Gazette.”

The legal notice herein was published on 7 July 2006 and that is when it takes effect but not on 28 or 29
June. If the order of the court was served between 3 and 5 July 2006 then it was properly extracted and
capable of being served and obeyed by the parties so affected, as the legal notice was not yet in force.
The respondent’s objection as regards the validity of the order as extracted cannot be sustained.
Having considered all the objections raised, the sum effect is that the application dated 13 July 2006
seeking leave to bring contempt proceedings against the respondent is incompetent and is hereby struck
out.
However, the notice of motion dated 12 July 2006 is properly on record and the objection fails on that
point.
For the appellant:
Mr Wati
For the first respondent:
Mr Rachier and Mr Amolo
For the third and fourth respondents:
Mr Kaka

Ismail v Mbarak and another

[2007] 1 EA 100 (CAT)

Division: Court of Appeal of Tanzania at Zanzibar

Date of judgment: 16 December 2005
Case Number: 56/04
Before: Lubuva, Mroso and Msofee JJA
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Civil procedure – Originating summons – When originating summons can be used – Whether suit
can proceed in ordinary manner – Failure of court to get oral evidence.

Editor’s Summary
The appellant and the first respondent were husband and wife but later divorced. The appellant later
claimed to be the owner of a shamba in Matemwe in North Region, Zanzibar. The first respondent
however claimed that the appellant sold her the shamba. The appellant thereafter filed an originating
summons in the High Court of Zanzibar at Vuga seeking to be declared the owner of the shamba. The
High Court however ruled against him and he appealed arguing that the court should not have decided the
case on the basis of the filed written submissions by counsel.
Held – Originating summons is provided for in Order X of the Civil Procedure Decree. It provides for a
summary procedure and the proceedings are conducted by a Judge sitting in chambers. Although a plaint
is also filed, it does
Page 101 of [2007] 1 EA 100 (CAT)

not contain any prayer. The relief sought is contained in the originating summons. Indeed, the plaint has
to be marked “OS” to distinguish it from the ordinary plaint.
If the Judge hearing a case based on an originating summons cannot be disposed of in a summary
manner, he dismisses the summons and may require the parties to proceed by way of a suit in the
ordinary procedure.
It is not apparent that the High Court knew that an originating summons entailed summary
proceedings in chambers or that it has restricted use. There was obviously confusion as to the procedure
and the need for an originating summons. That confusion is apparent in the court allowing written
statements of defence to be filed and the subsequent taking of oral evidence from the appellant in open
court. The procedure of filing written statements of defence and fixing the case for trial in court could
only follow from a decision of the court, to be reflected in the record, that the relief sought by the
appellant could not be obtained under an originating summons. In that case the court would dismiss the
summons and order parties to file proper pleadings from which issues for trial would be framed.
The Judge should have found that the originating summons procedure was inappropriate and should
have dismissed the summons and proceeded to try the suit in the normal way. Issues should have been
framed in the normal way by the court, with the assistance of the counsel from both parties. Parties
would then adduce evidence (unless they declined to do so) and make submissions on the relevant law.
Finally, the Judge would give judgment on the law after resolving disputed facts based on the evidence.
In obiter – It was not proper for a Judge who has been assigned a case by a proper authority to re-assign
the case to another Judge. Such a practice can have the undesirable effect of undermining the
administrative authority of the Chief Justice and of the persons to whom he may delegate such authority
of assigning cases. It can also have a chaotic affect in case management.
Appeal succeeds.

No cases referred to in judgment

Judgment
Mroso JA: On 10 August 2001, the appellant filed proceedings against the respondents in the High
Court of Zanzibar at Vuga by way of an originating summons under Order X, rules 1(f ), 6 and 9 of the
Civil Procedure Decree, Chapter 8, henceforth in this judgment to be referred to only as the Civil
Procedure Decree. The originating summons was accompanied by a plaint twenty five days later, that is
on 4 September 2001, the second respondent filed a written statement of defence. The first respondent
filed a written statement of defence on the 26 September 2001. Replies to the written statements of
defence of the two respondents were subsequently filed. In other words, full pleadings were filed in court
by the parties.
The case was assigned to Dourado J who, after disposing of some chamber applications, began to try
the case on 26 June 2002 by taking evidence from the plaintiff, now appellant. He then adjourned the
trial to 16 July 2002.
Page 102 of [2007] 1 EA 100 (CAT)

On the date of the resumed trial Dourado J wrote the following direction in the record:
“Registrar High Court
Since I am concentrating on establishing the Industrial Court I am passing on this file to you to enable the
Chief Justice to allocate it to another Judge.
Signed: W Dourado
Judge
16 July 2002”

The Deputy Chief Justice, Honourable MA Oredola, assigned the case to Mshibe A Bakari J but the
Judge disqualified himself, saying he was a friend of both parties in the case. He in turn assigned it to
Dahoma J. After several adjournments, Dahoma J eventually made the following order in the record:
“By consent parties to submit written submission based on agreed issues. The plaintiff to file written
submission on or before 24 December 2002.
The defendants to reply by 15 January 2003. Mention on 20 January 2003.”

After all the submissions had been filed the Judge recorded that judgment would be on notice. On 16
May 2003, the registrar of the High Court delivered the judgment of Dahoma J. The appellant was the
losing party and feeling aggrieved, has appealed to this Court.
Through his advocates, MA Ismail and Company, the appellant filed five grounds of appeal but at the
hearing Dr F Twaib, learned advocate, who appeared for the appellant, abandoned the second and fifth
grounds and remained with the first, third and fourth grounds. The first ground of appeal is that the
learned trial Judge erred in law in entering judgment in favour of the first respondent in the absence of
any evidence in support thereof. In the third ground the complaint is that the trial Judge erred in law and
fact for holding that a registration of a statutory declaration made valid the sale of the disputed property,
a shamba. Finally, in the fourth ground the complaint is that the Judge erred in law and fact for finding
that the originating summons disclosed “no claim (sic) of action”.
The court, suo motu, asked counsel for both parties to address it on the propriety of the procedure
which was followed by the High Court, especially the use of an originating summons as well as full
pleadings and the use of counsel’s written submissions as evidence to be used to resolve disputed facts.
Dr Twaib conceded that it was unnecessary for the plaintiff (now appellant) to use an originating
summons which was in any case irrelevant on the facts of the case. He submitted, however, that the High
Court could have ignored it and proceeded with the case on the basis of the filed pleadings. He said that
since the trial court had used both the procedure of an originating summons and a trial on the basis of full
pleadings, that amounted to irregularities and that the way out was for this Court to set aside the
judgment of the High Court and order a retrial. He also agreed that the Judge erred in resolving disputed
facts on the basis of counsel’s submissions.
Mr Mbwezeleni, learned advocate for the first respondent, said he did not resist the appeal. He was of
the view that this Court should nullify the proceedings and put the whole matter to rest. He resisted the
suggestion that this Court should order a re-trial. He argued that there was nothing to be sent back to the
High Court to be retried. If the Court should nullify the proceedings in the High Court it should make an
order for costs in favour of the respondents.
Page 103 of [2007] 1 EA 100 (CAT)

Mr Jaddi learned State Attorney for the second respondent, was also of the view that as the
proceedings in the High Court were irregular, they should be quashed and this Court should order a
retrial.
In winding up his submissions Dr Twaib prayed that the lower court proceedings could be nullified
but leaving the originating summons and the pleadings as filed, undisturbed. The High Court would be
ordered to proceed with the case according to law from that stage by first deciding whether or not the
originating summons and the full pleadings could subsist together. Finally, he submitted that since the
respondents did not resist the appeal, there should be no costs.
The dispute between the appellant and the first respondent who used to be husband and wife, but
subsequently divorced, is that the appellant claimed to be the owner of a shamba situated in Matemwe in
North Region, Zanzibar. The first respondent, however, claimed the appellant sold the shamba to her,
which the appellant disputed. In filing the case in court the appellant prayed among other things, to be
declared the lawful owner of the shamba. The immediate question is whether it was appropriate to
initiate the court proceedings by use of an originating summons.
Originating summons is provided for in Order X of the Civil Procedure Decree. It provides for a
summary procedure and the proceedings are conducted by a Judge sitting in chambers. Although a plaint
is also filed, it does not contain any prayer. The relief sought is contained in the originating summons.
Indeed, the plaint has to be marked “OS” (short for originating summons), to distinguish it from the
ordinary plaint.
If the Judge hearing a case based on an originating summons realises that the relief sought in the
originating summons cannot be disposed of in a summary manner, he dismisses the summons and may
require the parties to proceed by way of a suit in the ordinary procedure. See Order X, rule 13 of the
Civil Procedure Decree.
Rule 1 of Order X of the Civil Procedure Decree explains that an originating summons is normally
used by executors, administrators of a deceased person, trustees and such like persons in relation to a
deceased’s estate.
It is not apparent that the High Court knew that an originating summons entailed summary
proceedings in chambers or that it has restricted use. There was obviously confusion as to the procedure
and the need for an originating summons. That confusion is apparent in the court allowing written
statements of defence to be filed and the subsequent taking of oral evidence from the appellant in open
court. The procedure of filing written statements of defence and fixing the case for trial in court could
only follow from a decision of the court, to be reflected in the record, that the relief sought by the
appellant could not be obtained under an originating summons. In that case the court would dismiss the
summons and order parties to file proper pleadings from which issues for trial would be framed.
A quick reading through the High Court judgment shows that there were several disputed facts which
could only be resolved by evidence to be adduced by both parties. For example, while the first
respondent contended that the appellant actually sold the disputed shamba to her and even facilitated the
transfer procedure, the appellant strenuously disputed that claim. Such disputed facts cannot be resolved
by mere submissions but by each party adducing evidence in support of their respective positions. The
learned Judge in his judgment was aware that facts were needed to enable him to decide who of the
Page 104 of [2007] 1 EA 100 (CAT)

two parties had a valid claim, as the following extract from the judgment portrays. The Judge said:
“Looking to all the facts disclosed and all the facts put forward in submissions the evidence in the case seems
to me to point to the fact that the first defendant was and still is in possession of the disputed shamba by virtue
of her registered statutory declaration.”

But the first defendant, now the first respondent never gave evidence at the trial and it is obvious the
Judge was treating submissions as evidence. Even the statutory declaration on which the Judge relied
upon as evidence that the respondent had possession of the shamba was not produced as evidence at the
trial but was referred to in counsel’s submissions only and its validity was being disputed.
We are of the clear view that the Judge should have found that the originating summons procedure
was inappropriate and should have dismissed the summons and proceed to try the suit in the normal way.
Issues should have been framed in the normal way by the court, with the assistance of the counsel from
both parties. Parties would then adduce evidence (unless they declined to do so) and make submissions
on the relevant law. Finally, the Judge would give judgment on the law after resolving disputed facts
based on the evidence.
Following from what we have said above, we quash and set aside the originating summons and the
proceedings as well as the judgment. We order a re-trial according to law on the basis of the filed
pleadings before another Judge. Costs to follow the event after the retrial.
We would wish to comment in passing that it was not proper for a Judge who has been assigned a case
by a proper authority to re-assign the case to another Judge. Such a practice can have the undesirable
effect of undermining the administrative authority of the Chief Justice and of the persons to whom he
may delegate such authority of assigning cases. It can also have a chaotic effect in case management. It is
suggested that the practice should be discouraged.
For the appellant:
Dr F Twaib
For the first respondent:
Mr Mbwezeleni
For the second respondent:
Mr Jaddi

Jetlink Express Limited v East African Safari Air Express Limited

[2007] 1 EA 104 (CCK)

Division: Milimani Commercial Courts of Kenya at Nairobi

Date of ruling: 30 March 2007
Case Number: 73/07
Before: Okwengu J
Sourced by: LawAfrica
 Sourced by: LawAfrica
Summarised by: R Rogo

[1] Civil procedure – Grounds of opposition – Whether grounds of opposition can be filed together with
replying affidavit – Number of replying affidavits required – Procedure before filing additional
affidavits.
Page 105 of [2007] 1 EA 104 (CCK)

Editor’s Summary
The respondent filed grounds of opposition and four affidavits, all in response to the applicant’s chamber
summons application. The applicant thereafter raised a preliminary issue that this was a violation of
Order L, rule 16(1) of the Civil Procedure Rules which only provides for the filing of either grounds of
opposition or replying affidavit. The respondent however argued that the court should only look at the
intention of the Rule, which is to give the parties a choice.
Held – Order L, rule 16(1) is mandatory and it requires the filing of a replying affidavit or a statement of
grounds of opposition. Although no prejudice is likely to be suffered by the filing of both documents, the
intention of the Rule is clear that a party should elect which document to file and cannot file both
documents. (National Industrial Credit Bank Limited v Gathuku [2002] 2 KLR 295; Mahandra Vitalbhat
Patel v Violet W Gatei and another High Court civil case number 685 of 2003 followed).
Order L, rule 16(1) only provides for the filing of one replying affidavit. Although there is no mention
of additional affidavits, where there is need for more affidavits to be filed, the respondent must seek
leave of the court and justify the need for such additional affidavits. In this case the applicant did not
seek leave of the court and therefore the three additional affidavits have been irregularly filed.
Given that the application before the court is one under certificate of urgency, it is in the interest of
justice and expediency that the court does grant leave for the additional affidavits to be filed and deem
the affidavits already filed as properly filed.

Cases referred to in ruling

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
National Industrial Credit Bank Ltd v Gathuku [2002] 2 KLR 295 – F
Mahandra Vitalbhat Patel v Violet W Gatei and another High Court civil case number 685 of 2003 – F

Ruling
Okwengu J: A preliminary issue has been raised seeking the court’s direction regarding the grounds of
opposition dated 12 March 2007, filed by the respondent in response to the chamber summons dated 15
February 2007, and four affidavits sworn in response to the same application. It is maintained that this is
a violation of Order L, rule 16(1) of the Civil Procedure Rules which provides for the filing of either
grounds of opposition or replying affidavit. It is further contended that the law does not allow a
respondent to file more than one affidavit without leave of the court.
Mr Lubulela who is seeking these directions has referred the court to the following cases:
(a) National Industrial Credit Bank Limited v Gathuku [2002] 2 KLR 295.
(b) Mahandra Vitalbhat Patel v Violet W Gatei and another High Court civil case number 685 of
2003.
Page 106 of [2007] 1 EA 104 (CCK)

Mr Kiragu who appears for the respondent maintains that the court must give the rule an interpretation
that does not make the rule an absolute nonsense. He explained that whereas grounds of opposition
simply articulate the grounds intended to be relied upon, an affidavit contains evidence and that there is
no reason why a party cannot file both documents as the applicant is not likely to suffer any prejudice.
He urged the court to look at the intention of the rule which is to give parties a choice. As regards the
multiple affidavits, Mr Kiragu referred the court to the Interpretation and General Provisions Act Chapter
2 section 3(4) which provides that singular includes plural, and plural includes singular, and therefore
Order L, rule 16(2) must be read as permitting more than one affidavit. In this case the various affidavits
were necessary to rebut the various allegations made by the applicant which could only be attested to by
different persons.
To this Mr Lubulela responded that order L, rule 16(1) is very clear and the same being worded in
mandatory terms, the intention to exclude the filing of both documents must be given effect. He
dismissed the reference to section 3(4) of the Interpretation and General Provisions Act, maintaining that
the same only applies to statutes and not rules, and that to adopt the interpretation proposed in section
3(4) would make an absurdity of the rules. He conceded that the court has the power to regulate the
number of affidavits to be filed but maintained that leave has to be obtained for the filing of additional
affidavits.
The provisions of Order L, rule 16(1) have been discussed by my brother Judges in the two cases
which were cited to me by Mr Lubulela. I do not therefore find it necessary to go into a discourse of the
rule save to concur with my brother Judges that Order L, rule 16(1) is mandatory and that it requires the
filing of a replying affidavit or a statement of grounds of opposition. Although I agree with Mr Kiragu
that no prejudice is likely to be suffered by the filing of both documents, the intention of the rule is clear
that a party should elect which document to file and cannot file both documents.
In this case Mr Kiragu has given an indication that if put to an election they will opt for a replying
affidavit. That takes us to the next issue and that is whether the respondent can rely on the multiple
affidavits filed in response to the application.
In my understanding Order L, rule 16(1) only provides for the filing of one replying affidavit.
Although there is no mention of additional affidavits, where there is need for more affidavits to be filed,
the respondent must seek leave of the court and justify the need for such additional affidavits. In this case
the applicant did not seek leave of the court and therefore the three additional affidavits have been
irregularly filed. Be that as it may, Mr Kiragu has clearly demonstrated the need for such additional
affidavits as each is responding to specific issues raised in the applicant’s supporting affidavit. In my
view, given that the application before the court is one under certificate of urgency, it is in the interest of
justice and expediency that the court do grant leave for the additional affidavits to be filed and deem the
affidavits already filed as properly filed.
The upshot of the above is that I give the following directions and orders:
(1) The grounds of opposition dated 12 March 2007, filed by the respondent is struck out.
Page 107 of [2007] 1 EA 104 (CCK)

(2) The three additional affidavits filed by the respondent are deemed as properly filed.
(3) The applicant is at liberty to file a response to the additional affidavits within 7 days from the date
hereof.
Orders accordingly.
For the appellant:
Mr Lubulela
For the respondent:
Mr Kiragu

Kabiru v Republic
[2007] 1 EA 107 (CAK)

Division: Court of Appeal of Kenya at Nairobi

Date of ruling: 30 March 2007
Case Number: 272/05
Before: Bosire, Githinji and Deverell JJA
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Criminal law – Whether motive needs to be proved before conviction.

[2] Criminal procedure – Assessors – Effect of failure to indicate the criteria for selecting assessors.
[3] Criminal procedure – Factors to consider before ordering re-trial – Criteria before interfering with
judgment.
[4] Criminal procedure – Meaning of conducting a prosecution.
[5] Criminal procedure – Voir dire examination – Duty to conduct voir dire examination for children of
tender years.
[6] Evidence – Corroboration – Whether corroboration required in charge of grievous harm – Whether
the Judge has duty to refer to the opinion of assessor in the judgment – Criteria for selection of assessor.

Editor’s Summary
The appellant was charged and convicted of the offence of causing grievous harm and sentenced to 15
years’ imprisonment. On appeal, the High Court upheld the judgment on the grounds that the
complainant’s testimony was believable and was corroborated by the evidence of a 16 year old girl and of
the police doctor. He further appealed to this Court on the grounds, inter alia, that the minor’s evidence
was accepted without a voir dire examination and that the complainant’s evidence was not corroborated.
Held – A voir dire examination may only be conducted in cases where the witness is a child of tender
years. A girl of 16 years, though a minor, is not a child of tender years. The witness said that she was a
Form 2 student and in the Magistrate’s assessment she appeared to be an adult. The trial Magistrate had
the advantage of seeing the witness and nothing turns on this ground of appeal.
Likewise, nothing turns on the ground alleging that the proceedings before the trial court are a nullity on
the ground that part of the proceedings were
Page 108 of [2007] 1 EA 107 (CAK)
presided over by an incompetent court prosecutor. Police Constable Wanjohi is shown in the proceedings
as having represented the prosecution during the mention of the appellant’s case on 11 December 2002.
He did not at all prosecute the appellant’s case. Prosecution implies the act of preferring criminal charges
and conducting proceedings thereof against an accused person. PC Wanjohi did not at all conduct any
proceedings against the appellant. He did not examine or cross-examine any witnesses, which is really
what it means to conduct proceedings. This ground also fails.
The record clearly shows that the appellant’s rights were explained to him. He indicated he wanted to
give a sworn statement, and would not have done so if his rights as spelled out in section 211 Criminal
Procedure Code were not explained to him. He also stated that he had no witnesses to call, implying that
he understood he had the right to call witnesses on his behalf. In his defence the appellant addressed the
elements of the charge of grievous harm and would not have done so if the charge was not fully
explained to him.
There is no legal requirement for corroboration of the complainant’s evidence in a charge of grievous
harm. In this case identification was not in dispute. The appellant admitted he was present when the
complainant was injured. His defence was that she was accidentally injured by people who wanted to
stab him, the appellant. The complainant’s testimony in effect was that it was the appellant and no other
person who assaulted her. Esther (the minor) supported her more particularly on the fact that there were
no other people nearby. She testified that she only saw the appellant and one other person who was with
him. There is no merit on this ground.
The appellant had the motive for committing the offence. Motive, according to section 9 of the Penal
Code, is immaterial so far as regards criminal responsibility. However, it is a factor to be taken into
account as part of the circumstantial evidence on the culpability or otherwise of an accused person.
Section 361 of the Criminal Procedure Code provides that the question of severity of sentence is only
a question of fact. The court can only interfere if in considering the question of sentence both courts
below overlooked a material fact or facts or took into account irrelevant factors or that it is not lawful.
The sentence of 15 years is lawful and the two courts below did not err on principle. Although the
sentence appears high, it is lawful and in view of the provisions of section 361 Criminal Procedure Code,
this Court cannot interfere.
Appeal fails.

No cases referred to in judgment

Judgment
Bosire, Githinji and Deverell JJA: Richard Kabiru, the appellant, was charged, tried and convicted of
the offence of grievous harm contrary to section 234 of the Penal Code, and was thereafter sentenced to
15 years’ imprisonment, by the Principal Magistrate at Makadara Chief Magistrate’s Court.
In his first appeal to the Superior Court, that Court (Ochieng J) after re-evaluating the evidence came
to the conclusion that the appellant is the one who assaulted Zippporah Waruguru, the complainant,
causing her grievous
Page 109 of [2007] 1 EA 107 (CAK)

bodily harm, and that the complainant who was the main witness, was believable and her evidence was
amply corroborated by the evidence of two other witnesses, namely, Esther Wachuka, (Esther) a girl then
aged 16 years, who said she saw the appellant dragging the complainant; and Dr ZM Kamau, who
examined the complainant and assessed the degree of her injuries as grievous harm. The court did not
think the sentence of 15 years was excessive, and that itself observed if a more lenient sentence was
meted out in a case like that of the appellant, who was the complainant’s husband, it would act as a
catalyst for more offences. On this aspect of the matter the court concluded its observations as follows:
“Therefore, the only way to instill discipline is to send a clear message that courts will take a serious view of
spouses who physically abuse the other.”

The Superior Court then dismissed the appellant’s appeal and provoked the appeal before us.
This being a second appeal, by dint of the provisions of section 361 of the Criminal Procedure Code,
only issues of law may be considered. In his memorandum of appeal, the appellant appears to us to
complain about findings of fact. In his supplementary memorandum of appeal, however, several points of
law have been raised; notably that evidence of a minor was accepted without a voir dire examination,
part of the proceedings before the trial court were conducted by among other persons, an incompetent
prosecutor; that the trial Magistrate did not comply with the provisions of section 211 Criminal
Procedure Code; that the evidence of the complainant was not corroborated nor did the trial Magistrate
warn herself of the dangers of relying on uncorroborated testimony of the complainant before doing so;
the trial court did not consider the defence of the appellant and that that Court shifted the burden of proof
to the appellant to prove his innocence.
The case against the appellant was that he waylaid the complainant near her salon situated along
Parkroad, Nairobi and stabbed her several times. The time was 7pm. She was in the company of Esther,
while the appellant was also accompanied by a person unknown both to the complainant and Esther. The
complainant and the appellant are estranged. They were husband and wife before, but because of
misunderstandings between them, they separated. As at the date of the assault they were living apart.
According to the complainant the appellant wanted a jacket she had which he claimed belonged to him.
He alleged that she had stolen it from him. He dragged her along saying he wanted to take her to the
police station. However, as he did so he also stabbed her several times, first on the stomach, then on the
right wrist and, below the right shoulder and elbow. The stab below the right shoulder affected internal
organs. The appellant’s companion did not participate in the attack but merely stood by watching the
attack. The appellant then left the complainant groaning in pain and went away. She was assisted by
police officers who passed by and was eventually taken to Kenyatta National Hospital where she was
admitted and treated. She remained there for about three weeks.
The appellant was later arrested and charged as earlier on stated.
Mr Ondieki appeared for the appellant. He presented submissions on each of the foregoing grounds,
but he did not seem to appreciate that Esther, was a girl aged 16 years as at the date of trial, and that the
trial Magistrate had noted on record that she appeared to her to be an adult. A voir dire examination may
only
Page 110 of [2007] 1 EA 107 (CAK)

be conducted in cases where the witness is a child of tender age. A girl of 16 years, though a minor, is
not a child of tender years. Esther said she was a Form II student, and in the Magistrate’s assessment she
appeared to be an adult. The trial Magistrate had the advantage of seeing the witness, and we do not think
anything turns on this ground of appeal.
Likewise nothing turns on the ground alleging that the proceedings before the trial court are a nullity
on the ground that part of the proceedings were presided over by an incompetent court prosecutor. Police
Constable, Wanjohi is shown in the proceedings as having represented the prosecution during the
mention of the appellant’s case on 11 December 2002. He did not at all prosecute the appellant’s case.
Prosecution implies the act of preferring criminal charges and conducting proceedings thereof against an
accused person. PC Wanjohi did not at all conduct any proceedings against the appellant. He did not
examine or cross-examine any witnesses, which is really what it means to conduct proceedings. This
ground also fails.
At the close of the prosecution case, it is noted on record as follows:
“Accused
I wish to give sworn statement. No witnesses to call. I am ready to proceed.”

Mr Ondieki said that this was not sufficient compliance with the provisions of section 211 Criminal
Procedure Code. In his view the trial Magistrate was obligated to show on record that she had explained
the substance of the charge to the accused, and that he had a right to call witnesses. With due respect to
counsel, the record clearly shows the appellant’s rights were explained to him. He indicated he wanted to
give a sworn statement, and would not have done so if his rights as spelled out in section 211 Criminal
Procedure Code were not explained to him. He also stated he had no witnesses to call, implying that he
understood he had the right to call witnesses on his own behalf.
In his defence the appellant addressed the elements of the charge of grievous harm and would not
have done so if the charge was not fully explained to him. His defence was that on the material date of
the alleged offence he was with the complainant. It was at night. Two people attacked him and wanted to
stab him with knives. He used the complainant “as a shield.” The appellant was trying to explain how the
complainant received her injuries implying that he understood the charge against him. This ground has no
merit.
There is no legal requirement for corroboration of the complainant’s evidence in a charge of grievous
harm. Mr Ondieki appeared to suggest that because the incident complained of occurred at night time
conditions favouring a correct identification of the complainant’s attackers were difficult and hence the
need for corroboration or of a caution before acting on the testimony of a single identifying witness. That
may well be so. But, in the appellant’s case identification was not in dispute. The appellant admitted he
was present when the complainant was injured. His defence was that she was accidentally injured by
people who wanted to stab him, the appellant. The complainant’s testimony in effect, was that it was the
appellant and no other person who assaulted her. Esther supported her, more particularly, on the fact that
there were no other people nearby. She testified that she only saw the appellant and one other person who
was with him. That being our view on the matter, we do not find any merit on this ground of appeal. The
appellant had the motive for committing the offence. Motive, according to section 9 of the Penal Code, is
immaterial so far as regards criminal responsibility. However, it is a factor to be taken
Page 111 of [2007] 1 EA 107 (CAK)

into account as part of the circumstantial evidence on the culpability or otherwise of an accused person.
The person was the complainant’s husband. They had a troubled relationship. He had accused her of
stealing his property. In all these circumstances, it is quite clear that the appellant was angry with her and
had a reason for assaulting her. He admitted there was another subsequent case against him in which his
wife is also the complainant. There are concurrent findings of fact on the appellant’s involvement in the
commission of the offence. We find no justifiable basis for interfering with those findings.
The last issue Mr Ondieki raised is with regard to burden of proof. It is trite law that the burden in
criminal cases is on the prosecution to prove a charge beyond any reasonable doubt. Mr Ondieki
suggested that both courts below appear to have overlooked this principle. With respect, we do not find
any basis for such a conclusion. Nor do we find any basis for the lamentation that both courts below did
not consider the appellant’s defence. The appellant’s defence was basically that he used the complainant
as a shield against an attack on him by third parties unknown to him. The trial Magistrate, in her
judgment, fully outlined the appellant’s defence, analysed it but rejected it in favour of the prosecution
case. She was entitled to believe the prosecution witnesses if in her own assessment they were witnesses
of truth. She had the opportunity of seeing and hearing the prosecution witnesses and appellant testify
and was best placed to assess their credibility. An Appellate Court will be slow to disturb a trial court’s
finding based on credibility of witnesses.
In the result, notwithstanding the fact that Mr Kaigai, Senior State counsel, did not support the
appellant’s conviction, we are satisfied that the appellant was properly convicted for the offence of
causing grievous harm contrary to section 234 of the Penal Code. Mr Kaigai based his decision on the
fact that there was no voir dire examination of Esther whose evidence was relied upon to corroborate that
of the complainant. However, as we stated earlier Esther was not a child of tender years. As regards
sentence, section 361 Criminal Procedure Code, provides that the question of severity of sentence is only
a question of fact. This court can only interfere if in considering the question of sentence both courts
below overlooked a material fact or facts, or took into account irrelevant factors or that the sentence is
not lawful. The sentence of 15 years is lawful, and in our view the two courts below did not err on
principle. Mr Ondieki urged the view that Ochieng J acted emotionally when considering the severity of
the sentence imposed on the appellant, but we do not consider that the language the learned Judge used,
although strong, went beyond what is expected of a judicial officer. Although the sentence appears high,
it is lawful and in view of the provisions of section 361 Criminal Procedure Code, we cannot interfere.
In the result, the appellant’s appeal fails and is accordingly dismissed. Order accordingly.
For the appellant
Mr Ondieki
For the respondent:
Mr Kaigai

Kamani v Kenya Anti-Corruption Commission

[2007] 1 EA 112 (HCK)

Division: High Court of Kenya at Nairobi

 Division: High Court of Kenya at Nairobi
Date of ruling: 2 February 2007
Case Number: 19/07
Before: Nyamu J
Sourced by: LawAfrica
Summarised by: E Ongoya

[1] Judicial review – Purpose of judicial review – Application for leave – When leave may be ordered to
operate as stay – Whether constitutional reliefs can be granted in judicial review application.

Editor’s Summary
The applicant made an application under Order LIII, rule 1(2), 1(3) and 1(4) of the Civil Procedure Rules
for leave to commence proceedings in the nature of judicial review. The substantive reliefs sought were
that the applicant be granted an order of certiorari to remove into the court and quash and the decision of
the respondent taken under the provisions of section 31 of the Anti-Corruption and Economic Crimes Act
imposing conditions that the applicant does deliver to the respondent a bank guarantee of KShs 20
million and one surety of a similar amount as a condition precedent to the release of the applicant’s
passport. The applicant also sought order of mandamus compelling the respondent to release passport
number A814437 to the applicant. At the leave stage, the applicant sought that the grant of leave to apply
for the orders of certiorari and mandamus do operate as a stay of the respondent’s decision imposing the
conditions aforesaid. In the submissions, the applicant contended that the taking of his passport
constituted a violation of his rights under sections 72 and 81 of the Constitution.
Held – Whether section 31 of the Anti-Corruption and Economic Crimes Act constitutes an acceptable
limitation to the fundamental rights under the Constitution is a great constitutional issue that cannot be
established or argued on the sidelines of a judicial review application.
A constitutional application is much wider than a judicial review application and it could where
appropriate seek judicial review reliefs.
In judicial review applications leave cannot in law operate as a stay where the substantive order
sought is that of mandamus.
The remedy of judicial review is concerned with reviewing not the merits of a decision in respect of
which the application for judicial review is made, but the decision making process. Supreme Court
practice 1997 Volume 53-14/1 adopted.
Section 31 of the Anti-Corruption and Economic Crimes Act vests the power to make the decision and
impose conditions on the Kenya Anti-Corruption Commission. The mandate of a judicial review court is
to ascertain if the implied duty of fairness placed on KACC has been discharged, and not to substitute the
court’s own decision and impose the court’s own conditions.
Leave granted but the application that it operates as stay denied.

Cases referred to in ruling

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA”
Page 113 of [2007] 1 EA 112 (HCK)
means disapproved; “DT” means doubted; “E” means explained; “F” means followed; “O” means
overruled)

East Africa
R v Attorney-General ex parte PK Waweru High Court miscellaneous application number 118 of 2004
(UR)

United Kingdom
Re JJ [2006] All ER D 330

United States
Kent v Dulles [1955] 357 US 116

Ruling
Nyamu JA: The applicant has accessed the Court as stated in his application under Order LIII, rule 1(2),
1(3) and 1(4) of the Civil Procedure Rules.
From the subject matter the urgency is clearly established and I have no problem in certifying the
matter as urgent. Similarly, the notice to the Registrar is dispensed with for the same reasons.
The substantive reliefs sought in the application are:
(1) That the applicant be granted order of certiorari to remove into this Court and quash the decision
of the respondent taken under the provisions of section 31(2) of the Anti-Corruption and Economic
Crimes Act imposing the conditions that the applicant deliver to the respondent a bank guarantee
of KShs thirty million (KShs 30 million) and one surety for a similar amount as a condition
precedent to the release of the applicants passport number A814437;
(2) That the applicant be granted leave to apply for an order of mandamus compelling the respondent
to release passport number A814437 to the applicant forthwith;
(3) That the grant of leave to apply for the aforesaid orders of certiorari and mandamus do operate as
a stay of the respondents’ decision imposing the conditions that the applicant do deliver to the
respondent a bank guarantee of kenyan shillings thirty million (KShs 30 million) and one surety
for a similar amount as condition precedent for the release of the applicant’s passport number
A814437 and the respondent be directed to temporarily release the applicants aforesaid passport
forthwith to enable him travel for medical treatment pending the hearing and determination of the
judicial review application upon such term as this Honourable Court may consider just:
(a) The application is supported by a verifying affidavit of Kamanla Kamani and I have read the
same. The grounds are as set out in the body of the application and the statement filed on 16
January 2007. The main grounds include that the decision is irrational and unreasonable and
is within the Wednesbury principle;
(b) Conditions imposed are impossible thereby denying the applicant access to medical
treatment;
(c) That the decision frustrates legitimate expectation;
Page 114 of [2007] 1 EA 112 (HCK)

(d) That the respondent did not make the decision judicially and therefore acted in excess and/or
without jurisdiction;
(e) That the decision is unfair;
(f ) That the decision is an abuse of power;
(g) That the condition touches on financial ability instead of the statutory criteria of whether or
not the applicant will turn up whenever required by the respondent;
(h) That the conditions smack of official arbitrariness calculated to deprive the applicant of his
right to liberty and freedom of movement;
(i) That the indefinite detention imposed by the conditions is the antithesis of the right to
liberty and security of the person; and
(j) That in imposing the condition the respondent has failed to take into account relevant factors
such as: it is a matter of speculation to whether or not the applicant will be charged with a
criminal offence; what offence; attracting what penalty.
In addition to the above grounds counsel for the applicant did at the hearing bring in possible
contravention or violation of section 72 and 81 of the Constitution although this is not a constitutional
application and the sections were also not pleaded. In this regard he relied on the US Supreme Court case
of Kent v Dulles [1955] 357 US 116 where it was held that the right to travel is part of “liberty” of which
a citizen cannot be deprived without due process of law under the fifth amendment. Also relied on is the
English case of Re JJ [2006] All ER D 330 June QB where it was held as under:
“As indeed it is obvious that, by its very Constitution every court of criminal justice must have the power of
correcting the greatest and most dangerous of all abuses of the forms of law, ... that of the protracted
imprisonment of the accused, untried, perhaps not intended ever to be tried, nay, it maybe, not inferred of the
nature of the charge against him, or the name of the accuser.”

The same decision declared:

“Neither the common law from which so much of the European Convention is derived nor international
human rights laws allow indefinite detention at the behest of the executive however well intentioned. It is not
for the executive to decide who should be locked up for any length of time let alone indefinitely. Only the
courts can do that and except as a preliminary step before trial only after the grounds for detaining someone
have been proved. Executive detention is the antithesis of the right to liberty and, security of the person.”

I have great sympathy for the principles expressed but they are not for adjudication or determination
now. I have given this matter serious consideration and find on a prima facie basis the applicant counsel
cannot, with respect, effectively articulate the constitutional matters mentioned above without bringing a
constitutional application alleging the violation/or contravention by the passage of the Anti-Corruption
and Economic Crimes Act or the section upon which the powers have been exercised by KACC. On the
other hand, the application as framed is substantially a judicial review application. It would for example
be necessary to establish whether the Anti-Corruption and Economic Crimes Act itself does satisfy the
principle of legality, which is a common threat affecting nearly all the rights and freedoms enshrined in
Chapter 5 of the Constitution. Thus, whether or not section 33 constitutes an acceptable limitation under
the Constitution, is a great constitutional issue. It cannot be established or argued
Page 115 of [2007] 1 EA 112 (HCK)

on the sidelines of a judicial review application where it has not even been pleaded. In addition section
70 of the Constitution which limits nearly all the rights on the ground of public interest casts a long
shadow on the need to have filed a constitutional application. The application brought on the other hand
is substantially a judicial review application. A constitutional application is much wider and it could,
where appropriate, seek judicial review reliefs eg under section 84 in the case of R v Attorney-General ex
parte PK Waweru High Court miscellaneous application number 118 of 2004 (UR) the court gave orders
of prohibition and mandamus in a constitutional application and in the Saitoti’s case where a
combination was allowed in a judicial review application because the subject matter was substantially
judicial review aimed at the Goldenberg Report and where the constitutional provisions were specifically
pleaded and further where the courts’ inherent power was also invoked and the reliefs could not be
brought separately. Also refer to the Githunguri II cited in the Saitoti’s case.
It is for the above reason that I decline to consider the tentative arguments touching on constitutional
violations or limitations. An attack under the Constitution can be lodged separately and this is not
inconsistent with section 3 of the Judicature Act.
Turning to the grounds raised in support of the application for leave since the applicant has alleged,
inter alia, grounds such as Wednesbury unreasonableness or irrationality, abuse of power and the taking
into account irrelevant considerations in giving more emphasis to financial might instead of securing the
applicants presence in Kenya when required, the court is of the view that the grounds are prima facie
arguable. The court has no hesitation in granting leave in terms of prayer 3 and 4 of the application.
As regards prayer 5 the same is refused or declined firstly because such leave cannot in law apply to
the order of mandamus and the application is incompetent in seeking leave to operate as stay as regards
mandamus and secondly as regards certiorari it has not on a prima facie basis been shown that the
decision is patently Wednesbury irrational or unreasonable and it has also not been sufficiently
demonstrated that the medical treatment intended is not available locally, and thirdly it has not on a
prima facie basis been demonstrated that Kenya is in the circumstances, a better home to return to instead
of the intended destination. Thus, it is not in dispute that the applicant has recorded a statement and has
two sons outside jurisdiction. The affidavits of Henry Muriithi Mwithia the Investigator including the
earlier exhibited affidavit filed on 12 October 2006 have indicated that the investigations are extremely
complex, intensive and spread worldwide in scope. The terms imposed do prima facie reflect a genuine
concern in wanting to uphold the public interest in undertaking the investigations. It cannot be denied
that the conduct of investigations is not in the public interest. I therefore decline the order of stay or that
leave granted do operate as stay.
In this proceeding I endorse in full the statement of the objectives of judicial review as set out in the
Supreme Court Practice 1997 Volume 53-14/I:
“The remedy of judicial review is concerned with reviewing not the merits of the decision in respect of which
the application for judicial review is made, but the decision making process. It is important to remember in
every case that the purpose of the remedy of judicial review is to ensure that the individual is given fair
treatment by the authority to which he has been subjected and that it is not part of that purpose to substitute
the opinion of the Judiciary or individual Judges for that of the authority constituted by law to decide the
matters in question.”
Page 116 of [2007] 1 EA 112 (HCK)

Section 31 vests the power to make the decision and to impose conditions on KACC. The mandate of this
Court is to ascertain if the implied duty of fairness placed on KACC has been discharged. If the implied
duty to act fairly has not been discharged the court would have the power to quash the decision so that
KACC can make it again in accordance with the law. The court cannot however substitute its own
decision and impose its own conditions as invited to do by the applicant. This would be usurpation by the
court of the powers clearly vested in KACC. Similarly, KACC’s decision and conditions can as has been
done here be attacked on being Wednesbury unreasonable – but the court having come to the conclusion
that in the circumstances the conditions are not prima facie Wednesbury unreasonable there cannot be
any ground for intervention.
Similarly, on a prima facie basis the court finds no irrelevant considerations having been taken into
account or relevant considerations having been ignored.
In the result leave shall not operate as stay.
Application for judicial review to be filed within twenty-one days and served within eight days failing
which the order for leave shall automatically lapse.
Costs to abide the outcome of the main application.
Notwithstanding the above conditions concerning filing and service of the judicial review application
the applicant may when the application is filed and served, have the matter mentioned with a view to
obtaining the necessary orders to fast-track the hearing of the same.
It is so ordered.
For the appellant:
Information not available
For the respondent:
Information not available

Kamunyu and others v AG and others

[2007] 1 EA 116 (CAT)

Division: Court of Appeal of Tanzania at Arusha

Date of judgment: 29 March 1999
Case Number: 53/98
Before: Nyalali CJ, Ramadhani and Lubuva JA
Sourced by: LawAfrica
Summarised by: H Majamba

[1] Civil procedure – Representative suits – Whether it was proper for the appellants to sue on behalf of
every member of the Maasai community who was evicted from the Game Reserve.
[2] Evidence – Burden of proof – Whether appellants had proved that they were inhabitants of the land
in the Game Reserve.
[3] Land law – Customary land rights in Game Reserve, existing rights of Maasai people – Whether the
appellants had customary title to the land in the Game Reserve – Whether the eviction of appellants from
Reserve was lawful.
[4] Tort – Compensation for loss of livestock, homesteads and property – Restitution – Whether the
appellants were entitled to compensation and restitution.
Page 117 of [2007] 1 EA 116 (CAT)

Editor’s Summary
The 52 appellants were Maasai pastoral community members. They sought to represent the entire Maasai
community members who had been evicted from Mkomazi Game Reserve by the government. They had
filed a suit in the High Court for wrongful interference of their legal rights by the respondents. The
appellants claimed that they and their families had been forcefully evicted from their ancestral lands.
They claimed further that in the process of the eviction, their homesteads, livestock and property were
destroyed. Some of them sustained injuries. The appellants argued that they had ancestral customary land
rights in the Mkomazi Game Reserve and have suffered damages and therefore ought to be compensated
and be provided with alternative land.
The High Court found that customary land rights were confined only to a portion of the Game
Reserve. The trial Judge ordered that the appellants be provided with alternative land in an area where
there is sufficient grazing land. The judgment did not cover the appellants who were not on record, since
the suit was not a representative suit. The appellants had expected to get more. They appealed against the
judgment and decree of the High Court. They sought to get restitution of customary occupation and
residence in the Game Reserve. They also prayed for compensation for loss/damage of property and
livestock for the multitude of members of the Maasai pastoral community who were evicted.
Held – The pastoralists are not ordinary residents in the Game Reserve. The only title that existed was a
statutory one. The appellants had nothing but a revocable permit given by the Director of Game. The
eviction of the appellants from the Game Reserve was unlawful because compensation was not paid to
them. The claim for damages had been time-barred by the law of limitation. Appeal dismissed.

Case referred to in judgment

East Africa
Attorney-General v Lohay Akoonay and Joseph Lohay civil appeal number 31 of 1994 (UR)

Judgment
Nyalali CJ: This is an appeal by Lekengere Faru Parutu Kamunyu and 52 others against the judgment
and decree of the High Court of Tanzania, at Moshi in a suit against the Minister for Tourism, Natural
Resources and Environment; the Director Wildlife Division Ministry of Tourism, Natural Resources and
Environment; the Project Manager Mkomazi Game Reserve and the Attorney-General hereinafter and the
respondents. The said Lekengere Faru Parutu Kamunyu and 52 others will hereinafter be referred to as
the appellants. The suit filed in the High Court is based on wrongful interference of the appellants’ legal
rights by the three respondents by:
“(i) Forceful eviction of the plaintiffs and their families from their ancestral lands.
(ii) Burning down homesteads and dwellings and destroying livestock and property thereby.
Page 118 of [2007] 1 EA 116 (CAT)
(iii) Breaking down of Maasai customary way of life and emigration of their numbers to Kenya and in
towns.”

The suit seeks a number of remedies that is:

“(a) A declaration that the plaintiffs are still lawful residents of Alaililai Lemwazuni (Mkomazi Game
Reserve);
(b) A declaration that customary land rights of customary residents of Mkomazi Game Reserve are not
subordinate to the rights of wildlife in the same reserve;
(c) A declaration that forceful evictions or otherwise removal of pastoralists from Mkomazi Game
Reserve was not done in accordance with the law;
(d) A declaration that neither Fauna Conservation Ordinance, (Chapter 302) nor Wildlife Conservation
Act, 1974 expressly or impliedly extinguished the customary pastoral land rights of the Alaililai
Lemwazuni (Mkomazi Came Reserve) Maasai people;
(e) A declaration that exorbitant fines imposed upon the evicted pastoralists were unlawful and
unconstitutional;
(f) Compensation for loss of livestock, homesteads and property to the tune of TShs 10 billion shillings;
(g) Costs of the suit; and
(h) Any other or further relief.”

The trial High Court accepted the issues in the case as being:
(1) whether the plaintiffs, their families and other members of the Maasai pastoralists community had
customary land rights in Mkomazi Game Reserve prior to their eviction;
(2) whether in view of issue one, the eviction of the plaintiffs, their families and other members of the
pastoral community from Mkomazi Game Reserve was lawful;
(3) whether by virtue of the forceful eviction referred to above the plaintiffs, their families and other
members of the pastoral community have suffered damages as enumerated in the plaint;
(4) whether the plaintiffs, their families, and other members of the pastoral community were and are
indeed entitled to alternative land and compensation; and
(5) to what relief’s are the parties entitled to.
After a long trial commencing on 13 November 1997 in which thirty nine witnesses for the appellants
and eleven witnesses for the respondents testified and numerous documents were produced as evidence
or material in the case, the judgment was given by the trial High Court, Munuo J on the 19 June 1998. In
her concluding paragraph, the learned trial Judge stated in her judgment:
“The suit partially succeeds in terms of the prayer for alternative land and compensation. The defendants
should relocate the plaintiffs in area where there is sufficient grazing land so that the pastoral plaintiffs can
resettle on self help basis. The set compensation should be paid to the plaintiffs to enable and facilitate their
resettlement. The plaintiffs who may have found alternative settlement are of course not bound to take up any
new settlement offer.
The suit is partially allowed in the above terms with costs.”

The appellants, apparently expecting to get more, were aggrieved by that judgment of the High Court,
hence this appeal to this Court. Mr SE Mchome
Page 119 of [2007] 1 EA 116 (CAT)

and Mr IH Juma, learned advocates from the Legal Aid committee of the Faculty of Law, University of
Dar-es-Salaam represented the appellants before us whereas Mrs Sumari, learned Senior State Attorney
represented the respondents. The record of appeal filed in the Court has 1044 pages of foolscap paper.
The memorandum of appeal has 10 grounds as follows:
“(1) The learned Judge erred in fact and law in holding that customary land rights were confined only at the
Umba side of the Mkomazi Game Reserve:
(a) The learned Judge should have held that the appellants, members of their respective households
and members of their customary land community were occupying land in accordance with their
communal customary laws and practices over an entire area of land comprising both the current
Umba and Mkomazi Game Reserves known to the appellants as Alaililai Lemwasuni.
(b) The learned Judge should have further held that other members of the appellants’ respective
families, households and customary community are also entitled to customary occupation and
residency in Mkomazi-Umba Game Reserves;
(2) The learned Judge erred in law and fact by basing the findings of the High Court solely on one source
of documentary evidence exhibit. The learned Judge should also have taken into account and evaluate
credible documentary and oral evidence before the trial Court, which evidence confirmed the existence
of customary land rights of the appellants over the whole of Mkomazi-Umba Game Reserve, known to
the appellants as Alaililai Lemwasuni.
(3) The learned Judge erred in law and in fact in according undue weight and accepting the testimony of
David Anstey whose performance in Mkomazi Game Reserve as a Game Warden was heavily
censured. The learned Judge should have evaluated the evidence of David Anstey in the light of
exhibit Y1 and provisions of the laws declaring the areas and boundaries of Mkomazi-Umba Game
Reserve.
(4) The learned Judge erred in law in holding that only customary land rights of the appellants who
deposed in the trial court asserted their customary land title over disputed land.
(a) The learned Judge should have decided on the basis of preponderance of evidence to establish
existence or otherwise of customary lands.
(b) The learned Judge should have further held that all 53 appellants who pleaded and remained on
the record, having, appeared before the High Court by their duly instructed Advocates, were in
law entitled to be covered by the Judgment and decree of the court.
(5) Ownership of customary land rights in Mkomazi Umba Game Reserve being not so much individual as
it is communal, the learned Judge:
(a) erred in law in holding that the judgment of the trial court could not canvass the land rights of
all the customary residents of the Game Reserve not on record by reason that theirs was not a
representative suit;
(b) should have held that customary land rights occupied communally may be pursued in courts by
either representative suit, or by individual litigants like the 53 appellants;
(6) In the alternative, and without prejudice to the foregoing ground that the learned Judge, having found
and held that 38 appellants were ‘customary’ legal residents of the Umba Game Reserve, erred in law
in failing to order the immediate restitution of the said 38 appellants legal and communal customary
occupation and residence in the Umba Game Reserve.
Page 120 of [2007] 1 EA 116 (CAT)
(7) The learned Judge erred in law in taking into account extraneous matters holding that a period of ten
years following unlawful eviction is a long period enough to preclude the courts from providing due
remedy of restitution of legal residency of the 38 appellant’s in their customary lands.
(8) Without prejudice to the foregoing having ordered the respondents to look for alternative customary
lands for the appellants, the learned Judge erred in law in not specifying the time frame within which
the alternative customary land will become available to the said 38 appellants.
(9) The learned Judge, having accepted that there was evidence of assaults, harassments, displacements,
loss of livestock and of domestic articles, and evidence of break up of families, erred in law and in fact
by rubricating these obvious injuries and sufferings as Torts for the purposes of limitation period, thus
denying the 38 appellants adequate remedy.
(10) The learned Judge erred in law and fact in holding and decreeing that the 38 appellants are in law
responsible to resettle themselves on. self-help basis following their unlawful evictions by the
respondents from their customary lands.”

For purposes of clarity we intend to give first the background or framework of circumstances both recent
and past, which gave rise to this case. It is undisputed that the Maasai people are among the 120 or so
tribes inhabiting the mainland of Tanzania, and that in a map of tribes published in 1946 and which was
produced at the trial in the High Court as exhibit D17, being a map of tribes printed by the Survey
Division, Department of Lands and Mines, Dar-es-Salaam, the Maasai, including the Kwavi, are shown
as being one of the inhabitants of the then Northern Province, to the west of the Pangani/Ruvu River.
This position of the Maasai is confirmed in another map – a native population map tendered at the trial as
part of exhibit D17, which describes the Maasai as “Nomadic Maasai”. The Pare and Shambaa people are
shown as inhabitants of an area, which includes the part which was later designated as Mkomazi Game
Reserve in the then Tanga Province of the then Tanganyika Territory.
There is also no dispute, an the basis of exhibit D22, (the Anderson Report), which is a scientific
report on the history and land use of Mkomazi Game Reserve compiled in December 1967, that the
earliest game reserve was established in 1904 by the German colonial administration along the Pangani
or Ruvu River, and it was known as the Railway Game Reserve, presumably because it was close to the
Tanga-Moshi Railway. Under British colonial administration, this area was incorporated into the Pare
Game Reserve in Pare District established under the Game Ordinance, 1940. Apparently by 1948, the
Maasai pastoralists had reached the area giving rise to difficulties in management of the Game Reserve.
A few years later, that is in 1951, the Mkomazi Game Reserve, covering an area of 2,500 square kms was
established under the Fauna Conservation Ordinance, Chapter 302, which repealed and replaced the
Game Ordinance. The Mkomazi Game Reserve which lay partly within Lushoto district and partly within
Pare or Same district in the then Tanga Province, was established as an alternative to the earlier Game
Reserve, the management of which had become impossible because of influx by pastoralists. According
to David Anstey, a game ranger, who was present in the area at the time and who gave evidence at the
trial in the High Court as the eleventh witness for the defence (DW11), there were wide ranging
consultations with local authorities prior to the establishment of Mkomazi Game Reserve. The
consultations involved the Chief of Usangi, Chief of Ugweno, Chief of Same, Chief of
Page 121 of [2007] 1 EA 116 (CAT)

Mbaga, Chief of South Pare and Chief of Ndungu. No Maasai leader or leaders were involved in the
consultations.
Furthermore, it is undisputed that pastoralists’ activities, particularly those of the Maasai, continued
to create problems to the management of the Mkomazi Game Reserve and that in 1952, the colonial
administration of what was then Tanganyika, ordered the Maasai to go back to Toloha, near Ruvu. Later
in the same year, the administration ordered the Maasai to go back to Maasailand via Buiko.
It is also indisputable that under both the Game Ordinance and the Fauna, Conservation Ordinance,
human habitation and consequential activity in Mkomazi Game Reserve was confined to a small class of
people including persons whose ordinary residence was within the reserve (section 5(b) of the Game
Ordinance and section 6(1)(c) of the Fauna Conservation Ordinance). In order 6(1)(c) of the Fauna
Conservation Ordinance), to ensure compliance with this restriction, a periodic census of persons
ordinarily resident within Mkomazi Game Reserve was undertaken. Such an exercise was thus conducted
in 1963, 1968, 1971 and 1983. The documents prepared during these exercises were tendered at the trial
in the High Court and they appear at pages 907, 909, 910, 911, 912, 913, 914, 915, 916, 917, 918 to 931
of the record of appeal prepared by the appellants for purposes of this appeal. The documents contain
lists of persons who were ordinarily resident within the Game Reserve.
After the political Independence of Mainland Tanzania, control of new arrivals of Maasai into
Mkomazi Game Reserve became much less effective, giving rise to serious problems of management of
the Game Reserve. Consequently, in 1963 it was proposed by the Tanga Regional authorities that the
Maasai should be returned to Maasailand but no action was taken. Similar proposals were made in 1965
and in 1966 but no action was taken.
In 1974, Mkomazi Game Reserve was split into two under the Wildlife Conservation Act, 1974 (Act
number 12 of 1974) and Government Notice number 265 and 275 of 1974. These two were Umba Game
Reserve in Lushoto District and Mkomazi Game Reserve in Same District. This measure had no effect on
the continued increase of pastoralists in the two game reserves. Towards the end of 1987, a decision was
made by the government ministry responsible for wildlife conservation, to revoke all permits issued
between 17 April 1968 and 8 December 1987 and to require all pastoralists to vacate the Game Reserves
early in 1988. There is no serious dispute that notice to that effect was communicated to the pastoralists’
community. There is also no serious dispute that when the period of notice expired, force was used by the
government to expel those who had not vacated on their own will. As to those who had responded to the
notice to vacate, alternative land was offered in places like Handeni District and Morogoro Region.
Naturally, there were many people who were aggrieved by the eviction, hence the suit in the High
Court. Fifty three persons, instituted the suit, apparently on their own individual behalf and on behalf of
the whole Maasai community or tribe. Out of these fifty three persons only thirty eight gave evidence at
the trial in the High Court.
It is the appellant’s case both at the trial and in this appeal, to the effect that, the Maasai people were
vested with ancestral customary title to the whole land comprising the Mkomazi Game Reserve prior to
their eviction therefrom, and
Page 122 of [2007] 1 EA 116 (CAT)

that such title constituted a deemed right of occupancy under the Land Ordinance, Chapter 113. It is part
of the appellant’s case that such title cannot be terminated except under the Land Acquisition Act 1967.
Furthermore, it is the appellants’ contention to the effect that since their eviction and that of their
community mates was done otherwise than in accordance with the Land Acquisition Act, and involved
destruction of their movable possessions and personal injuries to some, they are entitled not only to
restitution of their ancestral land but also to compensation for loss and injury sustained as a result of the
eviction. It is also part of the appellants’ case to the effect that the loss in cattle stock and household
property as well as the disruption of family and communal life thus suffered, is attributable to the
conduct of the respondents.
On the other hand, it is the respondents’ case both in this Court and at the trial in the High Court to
the effect that the appellants had no locus standi in suing on behalf of the Maasai community as a whole
and that in law they could properly do so only in a representative suit as provided under Order 1, rule 8.
Furthermore, it is the respondents’ contention to the effect that as to the appellants, only those who gave
evidence at the trial in support of their claim were entitled to a remedy, if any, in the trial court.
At the level of substantive law, it is the respondents case to the effect that the, only title which the
appellants could lay claim to, in Mkomazi Game Reserve, was the right to reside and use the Game
Reserve for grazing and watering purposes for their cattle in accordance with the Provisions of the
Wildlife Conservation Act, 1974 and the previous legislations. It is also part of the respondents’ case that
the respondents were authorised by law to revoke the permits issued to the appellants and others by
giving reasonable notice, and to use reasonable force to evict those who ignored the notice. The
respondents also contend to the effect that no damage or injury is directly attributable to the respondents
in carrying out the eviction as the diseases and other afflictions that may have befallen the pastoralists
and their cattle are too remote in law.
Moreover, the respondent’s agents destroyed only huts and other things left behind in the Game
Reserve and which were of a temporary nature and inappropriate to retain therein for purposes of the
Wildlife Conservation Act. Finally, the respondents contend that alternative land, suitable for pastoral
activities was offered to those who wanted it.
The first point for consideration and decision in this appeal is of a procedural nature and it is whether
it is correct in law for the 53 appellants to sue not only on their own behalf, but also on behalf of every
member of the Maasai community affected by the eviction. Mr Mchome, learned advocate for the
appellants, has submitted in effect that where the judgment sought, is a judgment in rem and not in
personam it is correct in law for an individual member of a community to sue both on his or her own
behalf and on behalf of every other member of the affected community. According to Mr Mchome, the
appellants in the present case are asserting not only their individual rights, but a customary communal
right, and thus seeking judgment in rem. As such, they are correct in suing not only on their own behalf,
but on behalf of every member of the Maasai community who was evicted from the Game Reserve.
With due respect to Mr Mchome, we do not think that his argument is tenable. We say so because, in a
suit seeking judgment, in rem that is a judgment applicable to the whole world, an individual does not sue
on behalf of the whole
Page 123 of [2007] 1 EA 116 (CAT)

world, but sues for judgment which is effective against the whole world. In other words, in the present
case, the appellants when successful in the suit, obtain judgment which is effective against the whole
world but does not confer benefits upon the whole world. If the appellants intended to benefit every
member of the Maasai community, they ought to have instituted either a class suit or a representative suit
under Order I, rule 8 of the Civil Procedure Code, 1966.
The position is different where there is violation of a public legal right, such as violation of a public
right of way. In such a situation, any member of the public may sue to assert it, not only on his behalf but
on behalf of the general public. Similarly, where there is non-compliance with either the Constitution or
any other law, any individual may institute legal action to enforce compliance both on his own behalf and
on behalf of everyone in the country under the provisions of sub-article (2) of article 26 of the
Constitution, which states in Kiswahili as follows:
“26(1) (inapplicable)
(2) Kila mtu ana haki, kwa kufuata utaratibu uliowekwa na sheria, kuchukua hatua za kisheria.
Kuhakikisha hifadhi ya Katiba na sheria za nchi.”

For all these reasons, we are satisfied and we find that it was not correct for the appellants to sue on
behalf of every member of the Maasai community who was evicted from the Mkomazi Game Reserve.
The second point we have to consider and decide is whether those appellants, who did not give
evidence at the trial in the High Court, are not entitled to obtain judgment in their favour. The answer in
our considered opinion is to be found under the provisions of Order 17, rule 2(1) and (2) of the Civil
Procedure Code, which states:
“2(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the
party having the right to begin shall state his case and produce his evidence in support of the issues
which he is bound to prove.
(2) The other party shall then state his case and produce his evidence (if any) and may then address the
Court generally on the whole case.”

We have underlined the relevant parts of rule 2, which explain what a party to a case has to do at the
hearing of the case. He or she has to state his or her case and then produce the supporting evidence.
Where the party appears by recognised agent, such as an advocate, as provided under Order III of the
Civil Procedure Code, the advocate would state the case and then produce the supporting evidence. Such
supporting evidence may include testimony from the plaintiff or plaintiffs, but, it is not necessary, if
enough supporting evidence is available without the testimony of the plaintiff. It is all a matter of burden
and standard of proof of facts in issue. The learned trial Judge stated on this point, that, only the
customary land rights of the plaintiffs who deposed in the case to assert their customary land title over
the suit land will be determined. The learned trial Judge clearly misdirected herself in confining herself
to determining the rights of only those plaintiffs who personally gave evidence in the case. She was
bound to look at the evidence produced by the plaintiffs/appellants’ advocate to see whether their
evidence is supportive of the claims of each plaintiff. Since this is a first appeal, we shall do what the
trial Judge ought to have done at an appropriate stage in this judgment.
Page 124 of [2007] 1 EA 116 (CAT)

We now come to substantive points, and we begin by considering whether the Maasai community of
which the appellants are members, had an ancestral customary land title over the whole of the Mkomazi
Game Reserve. We have carefully considered the indisputable surrounding circumstances which gave
rise to this case, and it is apparent that the Maasai community or tribe in question was not the first tribe
to arrive in the geographical area which is the subject of this case. It is apparent that the Maasai were
new arrivals in the area, preceded by other tribes, such as the Pare, Shambaa and even the Kamba. It
would seem that the Maasai, as a nomadic tribe, began to reach the area in the second half of the 1940’s
and their presence was still scanty at the time the Mkomazi Game Reserve was established in 1951. That
explains why they were not involved in the consultations which preceded the creation of the Game
Reserve. That being the position, we are bound to hold that the Maasai Community in question did not
have ancestral customary land title over the whole of the Mkomazi Game Reserve. We are aware that the
learned trial Judge found that such title existed in a portion of the Game Reserve, that is, Umba Game
Reserve. The respondents have not cross-appealed against that finding, but since that finding of the
learned trial Judge is inconsistent with our overall finding, we have to invoke our revisional jurisdiction
provided under section 4(2) of the Appellate Jurisdiction Act, 1979 as amended by Act number 17 of
1993 so as to set aside such finding which is inconsistent with ours. We do so accordingly, and find that
no such title existed in the Umba Game Reserve,
The second substantive point for our consideration concerns the nature of the title, if any, which the
appellants had before they were evicted. As a matter of land law, it is indisputable that all land on the
mainland of Tanzania is public land as stated under section 3 of the Land Ordinance, Chapter 113. The
land is vested in the President on trust for the benefit of the Tanzanian indigenous population as stated
under section 4 of the Ordinance. Because of this legal position land under the Land Ordinance, no
individual person or group of persons can have rights in land which are superior to the public title. The
nature of title available to persons or groups of persons cannot be anything but a right to use public land.
Since the appellants are members of the Tanzanian indigenous population, like many other Tanzanians, it
follows that the appellants were using the Mkomazi Games Reserve as beneficiaries of public land,
subject to legal regulations made for proper land use. The Wildlife Conservation Act, 1974, is such a
regulation. This means that the rights of the appellants, if any, are to be determined in accordance with
the provisions of the Wildlife Conservation Act, 1974. The provisions which are relevant to the case
before us are sections 7 and 12 of the Wildlife Conservation Act, 1974.
These sections state as follows:
“7(1) No person other than
(a) a person whose place of ordinary residence is within the reserve,
(b) shall enter a game reserve except by and in accordance with the written authority of the
Director previously sought and obtained.
12(1) No person shall save with the written permission of the Director, previously sought and obtained,
graze any livestock in any Game Reserve.
(2) Any person who contravenes any of the provisions of this section shall be guilty of an offence and
shall be liable on conviction to imprisonment for a term not exceeding two years.”
Page 125 of [2007] 1 EA 116 (CAT)

It seems to us that the combined effects of sections 7 and 12 is to create two kinds of rights to use public
land within a game reserve established under the Wildlife Conservation Act. The first one is the right of
residence belonging to people who are ordinarily resident in the area at the time of establishment of the
game reserve. The existence of that right of residence is recognised by the Act itself. It does not depend
on permits given by any authority. The second right, is the right to graze cattle within the area. The
existence of this right is not recognised by the statute itself but arises from and is dependent upon a
permit given by the Director of Game. In other words, a person ordinarily resident in a game reserve may
so reside without requiring a permit, but if he or she wishes to graze cattle therein, he or she can do so
only by permit of the Director of Game. This is because the prohibition of grazing cattle therein does not
distinguish between the cattle of ordinary residents and the cattle of non-ordinary residents. The
constitutionality of the prohibition to graze cattle without consent is beyond doubt before the
introduction of human rights provisions in the Constitution of the country.
Under the law and the circumstances of this case therefore, the pastoralists who were lawfully within
the Mkomazi Game Reserve fall into two categories that is, those who were ordinarily resident therein in
1951 and their descendants, and those who were subsequently permitted by the Director to enter therein.
This means that any pastoralist, who does not fall within these two categories, is an illegal entrant and is
not only liable to criminal prosecution under the Act, but may be evicted without let or hindrance at any
time. As to the second category, that is, those who were permitted to enter the Reserve by the Director of
Games after 1951, it is our considered opinion that their stay in the Reserve may be terminated by the
Director of Games by revocation of their permits after giving reasonable notice. We say so because in
principle a permit is by its very nature liable to be withdrawn or revoked by the person who issued it,
upon giving reasonable notice of the intention to do so.
As to the persons whose habitation in the reserve was recognised by the Act on the basis of their
ordinary residence therein, we are of the considered opinion that their habitation therein cannot be
terminated except under a relevant provision of the Act, if any, or in the absence of such provision, then
in accordance with any other law which provides for appropriate compensation as stated under
sub-article (2) of article 24 of the Constitution of the country. This means we are in agreement with the
learned trial Judge on this point, the pastoralists had the land although we disagree concerning the nature
and scope of the rights
She found to the effect that the pastoralists had customary title to the land specifically in the Umba
portion of Mkomazi Game Reserve. We have found that the only title that existed was a statutory title
carved out of public land by the Wildlife Conservation Act, 1967. We have also found that the
pastoralists who were not ordinary residents had nothing but a revocable permit given by the Director of
Games.
The third substantive point for our consideration and decision is whether the appellants or any of them
was unlawfully evicted from Mkomazi Game Reserve. In order to answer this point, we have first to
determine who among the appellants were ordinary residents and who were permitted by the Director of
Games. The only testimony evidence relevant to ascertaining those who were
Page 126 of [2007] 1 EA 116 (CAT)

ordinary residents in 1951 or their descendants are PW1, PW2, PW5, PW6, PW7 and PW36, who,
according to their age at the time they gave their testimony in court, must have been born in the Game
Reserve prior to 1951. The remaining witnesses for the appellants/plaintiffs are adults of unknown age
since there is nothing on the record to show otherwise, although they claim to have been born in the
Game Reserve. These witnesses could very well have been born in the Game Reserve after 1951, and
thus fail to qualify as persons ordinarily resident at the time the Game Reserve was established.
Let us now turn to the documentary evidence listing the people who, in the course of periodic
censuses, were considered as having been ordinarily resident in Mkomazi Game Reserve prior to 1951.
According to the agreed list prepared by counsel on both sides at our request, indicating the appellants
who were listed in the census documents, it is apparent that of the fifty three appellants, only twenty
seven are listed in the census documents as being ordinarily resident in the Game Reserve. They are as
follows:
Lekengere Faru Parutu Kamunyu (PW2)
Kiroiya Losina (PW36)
Kilorit Kipapila Yoseki (PW23)
Kone Naham Lorsai (S/O Natiam Lorsai) (PW27)
Hayai Laiyan Said (S/O Laiyan Said) (PW21)
Serenduki Mangula Kamunyu (PW18)
Muneria Langwa Saidi (S/O Langwa Said) (PW29)
Munga Kiroiya Losina (S/O Kiroiya Losina) (Number 11 in the plaintiffs’ List)
Suyan Kafuna Yoseki (S/O Kafuna Yoseki) (PW37)
Saikon Kombeti Saidi (S/O Kombeti Said) (PW31)
Leah Ndatuya Naham (The W/O the S/O Naham Lorsai) (Number 15 in the List of plaintiffs)
Lekei Koyai (PW34)
Kopera Keiya Kamunyu (PW1)
Petro Koyesa (PW12)
Tipaa Maningoi (PW13)
Kafuna Yoseki (Chuu Yoseki) (PW24)
Yongere Kipera (PW11)
Langwa Saidi (PW26)
Tuyato Petro Koyesa (W/O Petro Koyesa) (PW8)
Elizabeth Koti Kinyamwezi (D/O Lekengere Faru) (PW10)
Iyare Keiya Kamunyu (PW5)
Elee Faru (PW6)
 Salum Ikaayo (s/o Ikaayo?) (Number 43 in the list of plaintiffs)
Parket Ikaayo (PW28)
Lakara Saidi Maite (PW15)
Maziwa Kairanga Keiya (S/O Kairanga Keiya) (PW14)
Naham Lorsai Keiya (Number 53 in the list of plaintiffs)
There is no evidence either documentary or testamentary to suggest the 1951 status of the remaining
twenty six appellants/plaintiffs. They could very well have been among the Maasai who came to the area
in subsequent years. In law, the burden of proving otherwise is upon them. They have failed to discharge
that burden and the suit should have been dismissed against them. In other
Page 127 of [2007] 1 EA 116 (CAT)

words the trial Judge should have excluded them from her judgment which was in favour of 38 plaintiffs.
We are now in the position to decide whether the eviction of the twenty seven appellants listed by
counsel on both sides was lawful. As we have already stated earlier, the lawful eviction of these people
could only be in accordance with a law providing for appropriate compensation. This is consistent with
the decision of this Court, cited to us by counsel for the appellants that is case of Attorney-General v
Lohay Akoonay and Joseph Lohay in civil appeal number 31 of 1994 (UR). The relevant law on the
statute book at present is the Land Acquisition Act, 1967.
As it transpired, however, the procedure adopted in evicting these titled appellants was contrary to
article 24 of the Constitution and contrary to the provisions of the Land Acquisition Act, 1967. It follows
therefore, like night follows day, that the eviction in question was unlawful.
The last point for our consideration concerns the reliefs to which these twenty seven
appellants/plaintiffs are entitled to. In determining the appropriate relief one has to take into account the
nature of the appellants’ title. As already mentioned, before the eviction, these appellants had a statutory
right of ordinary residence coupled with a permission granted by the Director of Games to graze cattle
within the area. As we have already stated, the permission by its very nature is revocable by the Director
on reasonable notice, The Director has, with reasonable notice, revoked the appellants’ permission to
graze cattle within the game reserve. The twenty seven successful appellants are pastoralists. It is
pointless for them to claim restitution of their residence in Mkomazi Game Reserve without the
Director’s permit to graze their cattle therein. The Director of Games cannot in law be compelled to
restore the permits since he revoked them on reasonable notice. This means that the remedy of restitution
is inappropriate under the circumstances of this case. The appellants cannot reside without their cattle.
The trial High Court awarded a sum of TShs 300 000 as compensation per successful appellant. It further
directed the respondents to provide alternative grazing land, where the successful appellants may settle
on self-help basis. But for the requirement of self-help, we think the remedy provided by the trial court is
fair, considering that no credible evidence was given to determine the monetary value of the material loss
suffered by the successful appellants in the course of the eviction exercise. As to the tortuous acts
committed by agents of the respondents in the course of the eviction process, Mr Mchome, learned
advocate, conceded that the claim for damages was not maintainable as such claims were already time
barred. With regard to the order made to the respondents to find alternative grazing land for the
successful appellants we concur with Mr Mchome’s complaint that the trial High Court ought to have
prescribed a period within which such land is to be made available to the successful appellants by the
respondents. We shall rectify this defect.
In the final analysis, it seems that the successful appellants are in no better position than they were
under the judgment of the trial High Court. The only changes in their favour is that we are going to
prescribe a period within which the respondents are to find alternative grazing land for the successful
appellants. The monetary award remains the same as in the High Court except that the successful
appellants are not required by law to re-settle on self-help basis. They are to be treated in the same way
as other pastoral Tanzanians for their needs as
Page 128 of [2007] 1 EA 116 (CAT)

equal citizens of this country. But, for these modifications of the outcome in the court below, we hereby
dismiss the appeal with the following directions:
(i) Each successful appellant is to be paid a sum of TShs 300 000 by the respondents.
(ii) The respondents are to provide alternative grazing land of comparatively the same standard as that
used by other pastoralists in the country within six months from today except that any of the
successful appellants who may not wish to be so provided with such alternative land is free to do
otherwise according to law.
(iii) Each party to bear its costs of this case, which has been conducted for the appellants on Legal Aid.
We order accordingly.
For the appellant:
Mr SE Mchome and Mr IH Juma
For the respondent:
Mrs Sumari

Karobia v Republic
[2007] 1 EA 128 (HCK)

Division: High Court of Kenya at Nyeri

Date of judgment: 25 January 2007
Case Number: 209/03
Before: Okwengu JA
Sourced by: LawAfrica
Summarised by: C Kanjama

[1] Crime – Defilement – 14 year sentence – Whether offence proved without evidence of minor
complainant – Whether sentence excessive.
[2] Criminal procedure – Charge – Particulars of offence – Charge of defilement – Omission of word
“unlawful” – Whether omission prejudiced the appellant – Whether omission fatal to prosecution –
Section 382 Criminal Procedure Code.
[3] Evidence – Child of tender years – Voir dire examination – Child does not understand nature of
oath – Further test regarding ability to appreciate the truth – Whether affirmation or simply unsworn
testimony should be given – Whether accused entitled to cross-examine witness upon unsworn testimony
– Whether defect in voir dire fatal to prosecution case – Section 19 Oaths and Statutory Declarations Act
– Section 125(2) Evidence Act – Sections 208(3), 233 Criminal Procedure Code.
Editor’s Summary
The appellant was convicted of the offence of defilement of a 13 year old girl. The prosecution’s
evidence was that the appellant accosted the minor complainant on her way home from school, took her
to his hotel in a trading centre and had sexual intercourse with her. The appellant was discovered in
flagrante delicto by a patron who had gone to his hotel. Medical evidence confirmed sexual assault and
infection of the complainant with a venereal disease by the appellant. The trial Magistrate conducted a
voir dire as required by the Oaths and Statutory Declarations Act and confirmed that the minor
complainant, a
Page 129 of [2007] 1 EA 128 (HCK)

child of tender years, did not understand the nature of an oath. The minor was thereupon affirmed and
gave evidence without being cross-examined.
On appeal, the question of whether the Magistrate properly admitted the evidence of the minor
complainant arose. The appellant argued that in the absence of this evidence, the conviction could not
stand. It was also argued that the charge was defective as it did not allege that the carnal knowledge was
“unlawful”.
Held – The particulars of the charge did not indicate that the carnal knowledge had by the appellant was
“unlawful.” The omission of “unlawful” in the particulars of the charge did not occasion any failure of
justice as the appellant did not at any stage concede to having carnal knowledge of the minor
complainant, lawfully or otherwise.
In conducting a voir dire examination of a child of tender years, the trial court is required to satisfy
itself that: (a) the minor was a child of tender years; (b) the minor understands the nature of an oath; and
(c) if the minor does not understand the nature of an oath, that the minor is possessed of sufficient
intelligence to testify and understands the importance of speaking the truth. If the minor does not
understand the nature of an oath but appreciates the truth, then the minor should give unsworn testimony
without being affirmed. The accused will still be entitled to an opportunity to cross-examine the minor.
In this case, even after disregarding the impugned evidence of the minor complainant, there was
sufficient corroborated evidence to sustain the appellant’s conviction.
Appeal dismissed.

No cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

Judgment
Okwengu JA: This is a first appeal lodged by Joseph Kariuki Karobia hereinafter referred to as the
appellant, against his conviction and sentence by the Senior Resident Magistrate Nanyuki, for the offence
of defilement contrary to section 145(1) of Penal Code.
The particulars of the charge against the appellant were that on the 11 March 2003 at Matanya
Trading Centre in Laikipia District within Rift Valley Province he had carnal knowledge of Jane
Wacheke Muturi, a girl under the age of 14 years.
During the trial in the lower court there were four witnesses who testified on behalf of prosecution.
These were the minor complainant Jane Wacheke (PW1), an independent witness Thomas Kingori
(PW2), the arresting officer PC Johnson Kimani (PW3) and William Miricho Ndonge (PW4) a clinical
officer who examined the complainant after the alleged offence.
The evidence of the witnesses was that on the material day the minor complainant was on her way
home from school when she met with the appellant.
Page 130 of [2007] 1 EA 128 (HCK)

The appellant held her and took her to his hotel at Matanya Trading Centre. He took the minor
complainant to a kitchen at the back of the Hotel. He made the minor lie on the floor, removed her
underpants then had sexual intercourse with her.
In the meantime, PW2 went to the hotel of the appellant intending to have lunch there. He did not find
the appellant in the hotel. He called out but received no response. PW2 then heard funny noises coming
from the kitchen of the hotel and decided to go to the kitchen. He found the appellant lying on top of the
minor complainant holding her mouth and at the same time sexually assaulting her. PW2 confronted the
appellant and the appellant stood up. He had no trouser and his penis was erected. PW2 raised an alarm
and members of the public came to his assistance. They apprehended the appellant and escorted him to
Matanya Police Station where he was re-arrested by PW3.
On the same day the minor complainant was taken to Nanyuki District Hospital where she was
examined by PW4 who found her panty torn. PW4 also noted bruises on the complainant’s vagina as well
as white smear on her private parts. Laboratory examination revealed that sperms, pus cells and bacteria
were found in the smear. It was confirmed that the minor complainant had been sexually assaulted and
infected with a venereal disease.
In his defence the appellant gave a sworn defence in which he denied having committed the offence
and maintained that he was at his cousin’s home. He claimed that PW2 lied against him because he owed
the appellant. Having considered the evidence the trial Magistrate found the case against the appellant
proved beyond reasonable doubt she therefore rejected the appellant’s defence and found him guilty and
convicted him of the offence.
In his memorandum of appeal the appellant complained that the evidence adduced by the prosecution
was not sufficient to sustain his conviction. He maintained that he was not subjected to any medical
examination. He further contended that since the minor complainant was retarded her evidence was not
reliable. Finally, he maintained that the incident having occurred at a trading centre, more people other
than PW2 ought to have witnessed the incident. As regards the sentence the appellant lamented that it
was so harsh as to result in his spending the rest of his life in prison.
This being a first appeal, it is incumbent upon this Court to reconsider and evaluate all the evidence
which was adduced before the lower court and come to its own conclusion. In considering the evidence
which was adduced before the lower court, I note three issues of concern, one, relating to the charge
sheet, and two, relating to procedure adopted by the trial Magistrate in taking the evidence of the minor
complainant.
First, as concerns the charge, the particulars did not indicate that the accused person had “unlawful”
carnal knowledge of the complainant. I find however that this omission did not occasion any failure of
justice as the accused did not at any stage concede to having carnal knowledge of the minor complainant,
lawfully or otherwise. I am satisfied that the omission, in the particulars of the charge to include the word
“unlawful” is curable under section 382 of the Criminal Procedure Code.
Secondly, before taking the evidence of the minor complainant, the trial Magistrate carried out what
was presumably a voir dire examination. The record reads as follows:
Page 131 of [2007] 1 EA 128 (HCK)
“PW1 Female minor states in Kikuyu:
I am called Jane Wacheke. I come from Matanya. I go to Tigithi Primary School. I am in Standard 1. I do
not know the Bible. I am 13 years. I have never seen a Bible.
Court: Child does not know the meaning of oath. To be affirmed.”

Section 19 of the Oaths and Statutory Declarations Act (Chapter 15), which deals with the taking of
evidence of children of tender years states as follows:
“19(1) where in any proceedings before any court or person having by law or consent of parties authority
to receive evidence, any child of tender years called as a witness does not, in the opinion of the
court or such person, understand the nature of an oath, his evidence may be received though not
given upon oath, if in the opinion of the court or such person, he is possessed of sufficient
intelligence to justify the reception of the evidence and understands the duty of speaking the truth;
and his evidence in any proceedings against any person for any offence, though not given on oath,
but otherwise taken and reduced into writing in accordance with section 233 of the Criminal
Procedure Code, shall be deemed to be a deposition within the meaning of that section.”

This means that in this case the trial Magistrate before accepting the evidence of the minor as a witness
had first to satisfy herself of the following:
(1) That the minor was a child of tender years.
(2) That the minor understands the nature of an oath.
(3) If the minor does not understand the nature of an oath, that the minor is possessed of sufficient
intelligence to testify and understands the importance of speaking the truth.
In this case the trial Magistrate appears to have made a finding from her voir dire examination that the
child did not understand the nature of an oath. Although no specific finding was made on whether she
was a child of tender years, her age of 13 years is sufficient to justify the conclusion that she was a child
of tender years. Nevertheless, having concluded that the child did not understand the nature of an oath
the trial Magistrate did not go further to examine the child so as to establish whether she was possessed
with sufficient intelligence to enable her to testify and whether she understood the importance of
speaking the truth. This was crucial not only in compliance with section 19 of the Oaths and Statutory
Declarations Act but also given that the child as per the evidence of the Clinical Officer (PW4), was said
to be mentally retarded. Under section 125(2) of the Evidence Act it was necessary for the court to satisfy
itself that she could understand questions put to her and give rational answers before her evidence could
be accepted.
Further, the trial Magistrate having made a finding that the child could not understand the nature of an
oath, concluded that she should be affirmed. This was wrong as affirmation is akin to giving evidence on
oath except that it is reserved for those who either do not ascribe to any religion or those who by virtue of
their religious beliefs cannot swear using the religious books.
In this case, the minor could only give unsworn evidence and even then only after it was established
that she was possessed of sufficient intelligence to testify and that she understood the importance of
speaking the truth.
Page 132 of [2007] 1 EA 128 (HCK)

The trial Magistrate therefore erred in failing to comply with section 19 of the Oaths and Statutory
Declarations Act Chapter 15.
Thirdly, it is apparent from the record that the appellant was never given an opportunity to
cross-examine the minor complainant after she had given evidence. This being a criminal trial the
appellant was entitled to cross-examine the minor complainant whether her evidence was given on oath
or not and the trial Magistrate was obliged under section 208(3) of the Criminal Procedure Code to give
the appellant that opportunity.
Notwithstanding the above, I have re-considered and evaluated the evidence. There was clear
evidence from PW2 that he found the appellant person in the process of having sexual intercourse with
the minor complainant. The appellant was lying on the young girl. He had no trouser and when he stood
up his penis was erected, leaving no doubt as to what he was doing. There was therefore no doubt as to
the identity of the person.
The evidence of PW2 was corroborated in material particular by that of the clinical officer (PW4)
who examined the minor complainant and confirmed that she had bruises on her vagina as well as white
smears which were confirmed to contain sperms, pus cells and bacteria indicative of sexual activity. The
appellant’s defence appeared to be an alibi that he was at his cousin’s home, however the alibi cannot
stand in the light of clear evidence of PW2 that he found the appellant in the kitchen of his hotel sexually
assaulting the minor. The allegation of the appellant that PW2 had a grudge against him cannot also stand
as the evidence of PW2 was consistent with that of PW3 and was corroborated by that of PW4, none of
whom had any connection with the appellant.
I note that even if the evidence of the minor complainant were to be ignored, there was overwhelming
evidence adduced by the other three witnesses, which proved beyond reasonable doubt that appellant did
have unlawful carnal knowledge of the minor complainant. I therefore come to the conclusion that no
substantial miscarriage of justice was occasioned by the irregular reception of the minor complainant’s
evidence or the failure to accord the appellant an opportunity to cross-examine the minor complainant.
His conviction was therefore safe.
As for the sentence of 14 year’s imprisonment, the offence committed by the appellant is not only
serious but now prevalent in our society. The maximum sentence for the offence is life imprisonment.
The sentence imposed of 14 years was therefore neither harsh nor excessive and I therefore find no
justification to interfere.
The upshot of the above is that I uphold the appellant’s conviction and sentence and do therefore
dismiss his appeal in its entirety.
For the appellant:
Information not available
For the respondent:
Information not available

Katikenya v Republic
[2007] 1 EA 133 (CAK)
 Division: Court of Appeal of Kenya at Nairobi
Date of judgment: 30 March 2007
Case Number: 280/06
Before: Bosire, Githinji and Deverell JJA
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Criminal procedure – Duty of court to indicate language used – Effect of not indicating the
language used in court.

Editor’s Summary
The appellant was charged and convicted of the offence of robbery with violence contrary to section
296(2) of the Penal Code. The appellant appealed arguing that the failure by the Magistrate to date the
judgment and to show that it had been delivered offended section 169 of the Criminal Procedure Code
and the failure to show the language of the proceedings vitiated the trial and conviction.
Held – The trial Magistrate was careless in the manner she handled the case. She did not indicate in what
language or languages the proceedings were conducted. Nor did she indicate whether the appellant or
witnesses understood the English language, which is the language of the court. A careful reading of
sections 197 and 198 of the Criminal Procedure Code clearly shows that a failure to show demonstrably
the language used in criminal proceedings will, in an appropriate case, this being one, vitiate the trial.
It is true that the appellant was given an opportunity to cross-examine various witnesses. However, he
faced capital charges and he stands convicted of the same. It may not be possible to fathom the extent of
the prejudice that might have been occasioned to him. Hence the appellant’s trial was unsatisfactory.
Appeal allowed.

No cases referred to in judgment

Judgment
Bosire, Githinji and Deverell JJA: In this second appeal, the supplementary memorandum of appeal
raises four main aspects, namely:
“(1) The judgments of the trial and first Appellate Courts did not comply with the provisions of section 169
of the Criminal Procedure Code (CPC).
(2) The language of the proceedings is unclear.
(3) The appellant’s rights under section 72(3)(b) of the Constitution was violated in that he was not taken
to Court within 14 days of his arrest.
(4) The Superior Court on first appeal did not re-evaluate the evidence, because had it done so it would
have found that the items allegedly recovered from the appellant were not entered in the police
occurrence book.”
The appellant, Francis Koikai Katikenya, was the first accused in the Senior Resident Magistrate’s Court,
Kibera, where he was charged jointly with six other persons, with six counts of robbery, with violence
contrary to section
Page 134 of [2007] 1 EA 133 (CAK)

296(2) of the Penal Code. The appellant faced two alternative counts of handling stolen property contrary
to section 322(2) of the Penal Code. A co-accused, Halima Wanjira, faced one alternative count of
handling stolen property contrary to the same section of the Penal Code.
The trial commenced on 3 December 2001, but there is no indication in the trial Magistrate’s record
as to the language which was used by witnesses. The record however, shows that each accused was given
an opportunity of cross-examining witnesses, and they in fact cross-examined some of the witnesses at
some length. Likewise, there is no indication on record as to the language the appellant and his
co-accused used in their respective defences. The appellant made a statutory statement and so did all his
co-accused.
In her judgment, the trial Magistrate, Ms Mwangi, Principal Magistrate, did not note that the
judgment had been delivered. Nor did she date it. In his submissions before us, Mr Wamwayi for the
appellant, urged the view that the failure to date the judgment and to show that it had been delivered,
offends the provision of section 169 Criminal Procedure Code and renders it a nullity. Likewise, he
submitted that the failure to show the language the proceedings were conducted vitiated the trial and the
conviction which was eventually entered against the appellant.
We pause there to consider the issue of the appellant’s arrest. The appellant, according to the charge
sheet, was arrested on 16 September 2001. He was not taken to court until 22 October 2001, a period in
excess of 30 days. His arrest was entered in the police occurrence book, but it was not indicated therein
that anything was recovered from him. It was Mr Wamwayi’s submission, that the long delay in
presenting the appellant to court violated the provisions of section 72(3)(b) of the Constitution which
provides, inter alia, that a person facing a criminal charge which carries a mandatory death sentence
should be brought before a court within 14 days. There was no explanation given on this, but we note that
the issue was not raised either before the trial or first Appellate Court.
Mr Kaigai, Senior State counsel, opposed the appeal, and submitted before us that the errors which
were pointed out on behalf of the appellant were curable under section 382 Criminal Procedure Code. In
his view, those errors did not occasion any failure of justice or cause prejudice to the appellant.
We have considered this matter in its entirety. It is clear to us that the trial Magistrate was careless in
the manner she handled the case. She did not indicate in what language or languages the proceedings
were conducted. Nor did she indicate whether the appellant or witnesses understood the English
Language, which, is the language of the Court. A careful reading of sections 197 and 198 Criminal
Procedure Code, clearly shows that a failure to show demonstrably, the language used in criminal
proceedings, will, in an appropriate case, this being one, vitiate the trial. True, as Mr Kaigai submitted,
the appellant was given an opportunity to and cross-examined various witnesses. However, he faced
capital charges and he stands convicted of the same. It may not be possible to fathom the extent of any
prejudice that might have been occasioned to him.
Having come to that conclusion, we think that the appellant’s trial was unsatisfactory and we do not,
therefore, need to consider the other grounds of appeal.
In the result, we allow the appeal, set aside the appellant’s respective convictions and set aside the
sentence of death passed on him and order that the
Page 135 of [2007] 1 EA 133 (CAK)

appellant be retried by a Magistrate other than Ms Mwangi, Principal Magistrate.

For the appellant:
Mr Wamwayi
For the respondent:
Mr Kaigai

Keter v Republic
[2007] 1 EA 135 (CAK)

Division: Court of Appeal of Kenya at Eldoret

Date of judgment: 23 February 2007
Case Number: 250/05
Before: Bosire, Githinji and Onyango-Otieno JJA
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Criminal procedure – Whether duty on prosecution to call all potential witnesses.
[2] Evidence – Whether the failure to call all witnesses materially defective – Whether the relationship
between the witnesses and the complainant is a relevant fact.
[3] Jurisdiction – Duty of Appellate Court on a first appeal.

Editor’s Summary
The appellant, a known stock thief, had a poor relationship with his wife the mother of the deceased.
Their differences heightened in repeated assaults against her and on 7 January 2001 she went back to her
parent’s home together with the deceased. On 5 August 2001, the appellant came to look for his wife. He
however proceeded to lift the deceased, who was about 1 year and 8 months then, and forcibly smashed
her head against logs of wood lying nearby and she died instantly.
The appellant was tried and convicted for the offence of murder. He appealed to the Court of Appeal
arguing that the conviction was against the weight of evidence and that the evidence relied upon was not
credible. He also argued that since all the witnesses were related to the deceased’s mother they were
unlikely to be impartial.
Held – This being a first appeal, the court has a duty to scrutinise the evidence to see if it supports the
lower court’s findings and to make its own findings and draw its own conclusions. (Okeno v Republic
[1972] EA 32 followed).
 Whether or not a witness is to be believed is a matter for the discretion of the trial court. Judicial
discretion is based on evidence and sound principles. The practice of criminal law courts is that the trial
Magistrate or Judge has to observe the demeanour and other factors to decide whether any particular
witness is a witness of truth or not. There is no principle of law which entitles a court to disbelieve a
witness merely because the witness is related to either the complainant or the accused.
Part IV of the Evidence Act has provisions with regard to the questioning of witnesses. Among the
questions which may be asked of a witness are those in relation to credibility. It is on the basis of such
questioning that a court is
Page 136 of [2007] 1 EA 135 (CAK)

enabled to determine whether or not a witness is a witness of truth. All the witnesses who said that
they saw the appellant hold the deceased by her legs, lifted her up and forcibly smashed her head against
logs of wood were examined and cross-examined in the presence of the trial Judge. She heard and saw
them testify. She assessed their respective credibility and on that basis accepted their respective
testimony. In those circumstances, the trial Judge was perfectly entitled to act on their respective pieces
of evidence, as she did.
The prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are
sufficient to establish the charge beyond any reasonable doubt. Those who testified in the case clearly
established that the appellant killed the deceased; that he had no legal basis for doing so; that the
appellant when he killed her was of sound mind and discretion and possessed the necessary guilty
intention. In those circumstances, the appellant should not be heard to complain that certain witnesses
were not called. (Bukenya v Uganda [1972] EA 549 followed.
Appeal dismissed.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Bukenya v Uganda [1972] EA 549 – F
Okeno v Republic [1972] EA 32 – F
Pandya v R [1957] EA 336
Peters v Sunday Post [1958] EA 424
Shantilal M Ruwala v R [1957] EA 570

Judgment
Bosire, Githinji and Onyango-Otieno JJA: Joseph Kiptum Keter, the appellant, was arraigned and
tried before the High Court at Kitale (Wanjiru Karanja J) with the aid of assessors for the offence of
murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence
alleged that on 5 August 2001 at Lamaiywet Village, Moi’s Bridge Location in Uasin Gishu District
within Rift Valley Province, he murdered Milka Cherono Keter (the deceased).
At the conclusion of the trial, the assessors returned a finding of guilty of murder, a finding the trial
Judge agreed with in a reasoned judgment; convicted the appellant and sentenced him to the mandatory
death sentence as provided under the penal provision. The appellant was aggrieved and in this appeal he
challenges his conviction and sentence on three broad grounds, namely:
(1) His conviction was against the weight of the evidence.
(2) The evidence relied upon was not credible.
(3) The trial Judge failed to consider the appellant’s defence.
The case for the prosecution as presented before the trial court was short and straightforward. The
deceased was the last child of the appellant and Everlyne
Page 137 of [2007] 1 EA 135 (CAK)

Chepkurgat Keter (Everlyne). In total the couple had seven children. The couple got married in or about
1988 but their marriage was not peaceful, more so after the deceased was born. Everlyne testified that the
appellant, a known stock thief, was alleging that he had not fathered the child and that he was unhappy
whenever Everlyne complained against his habit of stealing livestock. At one time, in or about December
2000, he assaulted her, tied her with ropes and threatened to kill either her or the deceased. However, a
short while later he relented and untied her. The repeated assaults caused Everlyne to return to her
parents’ home on or about 7 January 2001 where she remained until 5 August 2001, the day the deceased
was killed. Before then, the appellant never went to look for her, nor did he take any steps to cause her to
return to their matrimonial home.
On 5 August 2001, Everlyne was at her parents’ home with the deceased who was then about one year
and eight months old. The other children were then living with the appellant. On that day, however, one
of the children, Sarah Chepkoskei Keter, (Sarah) had come to visit her mother. Sarah and the deceased
were happy to see each other and consequently went to play together behind their grandparents’ house,
leaving their mother indoors. While playing, their father, the appellant, came, found them playing and
after greeting them he sent Sarah to call her mother. While Sarah was away, the appellant allegedly
knocked the deceased down, stepped on her chest, after which he lifted her by her legs and forcibly
smashed her head against logs of wood which were lying nearby. The deceased’s head was shattered and
the brain oozed out. She died instantly.
Everlyne testified that she witnessed the incident, and so did Noah Kiprono Maiyo (Noah), Joseph
Kiprop Tum (Joseph), Sarah and John Keter Bett (John). Joseph and John were Everlyne’s elder brothers
while Noah was her nephew. These four and Everlyne were the prosecution’s eye-witnesses. The trial
Judge heard and saw them testify and believed their respective testimony. She also believed the
testimony of Paul Kipkorir Karoney (Paul), who was then a KANU nominated councillor. Paul testified
that the appellant visited him at his house at 3am on 6 August 2001, and after introducing himself he
confessed to him that he had killed the deceased and sought his guidance on what he needed to do in the
circumstances. Paul further testified that he asked the appellant to surrender himself to the police, which
he did.
In this appeal, Mr Cheptarus for the appellant, submitted before us, inter alia, that all the alleged
eye-witnesses and Paul could not properly be believed; firstly, because they were all related to Everlyne
and on that account, they were unlikely to be impartial witnesses. Secondly, the learned counsel
submitted that considering the story the appellant gave, he escaped from the scene when Everlyne’s
brothers attacked him and he was, therefore, not at the scene when the incident took place. Thirdly, that
although Paul was presented by the prosecution as an independent witness, he was not strictly one as he
had some connection with Everlyne’s family.
This being a first appeal, the principles to guide us are set out in the old case of Okeno v R [1972] EA
32 in which the former Court of Appeal for East Africa authoritatively stated thus:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and
exhaustive examination (Pandya v R [1957] EA 336) and the Appellate Court’s own decision on the
evidence. The first Appellate Court must itself
Page 138 of [2007] 1 EA 135 (CAK)
weigh conflicting evidence and draw its own conclusions (Shantilal M Ruwala v R [1957] EA 570). It is not
the function of a first Appellate Court merely to scrutinise the evidence to see if there was some evidence to
support the lower court’s findings and conclusions; it must make its own findings and draw its own
conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so it
should make allowance for the fact that the trial court has had the advantage of hearing and seeing the
witnesses, see Peters v Sunday Post [1958] EA 424.”

We have gone through the record of appeal in detail. It is quite clear to us, and we so find that the
relationship between the appellant and his wife Everlyne was far from cordial. We eschew any attempt to
state what the cause of the sour relationship was. Whatever the cause, what is clear is that because of
misunderstandings, Everlyne returned to her parents’ home. It was also not in dispute that on 5 August
2001, the appellant went to Everlyne’s home and it was on that same day that the deceased died. Her
death was not accidental. The post-mortem report clearly shows that her skull was shattered with
resultant extensive damage to the brain. The head was completely deformed.
The eye-witness account of several witnesses as to how the deceased met her death is supported by
the post-mortem report. However, as we stated earlier, Mr Cheptarus, for the appellant, thinks that
because the prosecution eye-witnesses were related to the deceased, they should not have been believed.
Whether or not a witness is to be believed is a matter for the discretion of the trial court. And, judicial
discretion is based on evidence and sound legal principles. The practice of criminal law courts is that the
trial Magistrate or Judge has to observe the demeanour of witnesses, and on the basis of that demeanour
and other factors decide whether any particular witness is a witness of truth or not. There is no principle
of law, to our knowledge, which entitles a court to disbelieve a witness merely because the witness is
related to either the complainant or the accused. Section 125(1) of the Evidence Act, Chapter 80 Laws of
Kenya sets out the general principle on competency of witnesses. That section provides:
“125(1) All persons shall be competent to testify unless the court considers that they are prevented from
understanding the question put to them, or from giving rational answers to those questions, by
tender years, extreme old age, disease (whether of body or mind) or any similar cause.”

Part IV of the Evidence Act has provisions with regard to the questioning of witnesses. Among the
questions which may be asked of a witness are those in relation to credibility. It is on the basis of such
questioning that a court is enabled to determine whether or not a witness is a witness of truth.
All the witnesses who said that they saw the appellant hold the deceased by her legs, lifted her up, and
forcibly smashed her head against logs of wood were examined and cross-examined in the presence of
the trial Judge. She heard and saw them testify. She assessed their respective credibility and on that basis
accepted their respective testimony. In those circumstances, the trial Judge was perfectly entitled to act
on their respective pieces of evidence, as she did. We cannot in the circumstances fault her on that.
Having come to that conclusion, we cannot, but agree with Miss Oundo, Senior State counsel, that the
offence the appellant allegedly committed was committed in broad daylight. The eye-witnesses knew the
appellant well before and cannot be said to have mistaken another person for him. There was
Page 139 of [2007] 1 EA 135 (CAK)

a motive for the killing. Everlyne testified that he had on an earlier date threatened to kill either herself or
the deceased. This clearly showed he had not only the motive but the necessary mens rea. He had earlier
expressed the view that the deceased was not his child. The trial Judge believed this and the story that
Everlyne had incessantly disapproved the appellant’s alleged stock thieving, a sentiment the appellant
resented.
Mr Cheptarus also raised the issue of failure to call certain witnesses. Bukenya v Uganda [1972] EA
549, clearly states that the prosecution is not obliged to call a superfluity of witnesses, but only such
witnesses as are sufficient to establish the charge beyond any reasonable doubt. Those who testified in
this case clearly established that the appellant killed the deceased; that he had no legal basis for doing so;
that the appellant when he killed her was of sound mind and discretion and possessed the necessary
guilty intention. In those circumstances, the appellant should not be heard to complain that certain
witnesses were not called.
The appellant also complains that the trial Judge did not fully consider his defence. The appellant’s
defence was that his wife was a drunkard, a behaviour he strongly disapproved. But because she was
unwilling to stop, she decided to return to her parents’ home. She went with the deceased. He also
testified that on 5 August 2001, at the request of his in-laws, he went to his wife’s home, allegedly to
discuss her case. However, in the course of their discussions, his brothers-in-law attacked him, beat him
up and would have continued doing so had he not escaped. He denied killing the deceased or witnessing
who did it. In short, the appellant’s defence was an alibi. However, in view of the overwhelming
eye-witness account as to how the deceased met her death, the alibi was clearly displaced. That was the
conclusion of the trial Judge and we too, have come to the same conclusion. This ground of appeal is
clearly without any merit.
We find no basis for interfering with the appellant’s conviction. The sentence which was imposed on
the appellant was the only one provided by law. In the result, we dismiss the appellant’s appeal in its
entirety.
Order accordingly.
For the appellant:
Mr Cheptarus
For the respondent:
Miss Oundo

Kimatu Mbuvi t/a Kimatu Mbuvi and Bros v Kioko

[2007] 1 EA 139 (CAK)

Division: Court of Appeal of Kenya at Nairobi

Date of judgment: 28 July 2006
Case Number: 203/01
Before: Omolo, Waki and Deverell JJA
 Before: Omolo, Waki and Deverell JJA
Sourced by: LawAfrica
Summarised by: E Ongoya

[1] Damages – General damages – Whether awardable for loss of business – Special damages to be
specifically pleaded and proved.
Page 140 of [2007] 1 EA 139 (CAK)

Editor’s Summary
The respondent, who was the plaintiff in the Superior Court was travelling as a fare paying passenger in a
matatu owned by the appellant and driven by his servant on 11 May 1992 when the vehicle rolled at a
high speed and the respondent sustained bodily injury. He listed his injuries as; multiple bruises on
forehead, deep cut on palm of left hand, fracture on left radius and ulna bones, severe injuries on left
arm, severe injuries on flexion tendons of the thumb, index and middle fingers on the left arm, injuries on
left fore-arm. Two medical reports on the injuries were produced at the hearing of the suit. As a result, he
suffered special damages which he quantified at KShs 15 400 and general damages which he prayed as
“General damages for injuries, future medical expenses and for loss of business.” The respondent
produced two medical reports, other documents in proof of special damages and a sales book in respect
of his business. The sales book was lost by the court and could not, therefore, be included in the record of
appeal. The respondent sort that the record of appeal due to the missing exhibit. The Superior Court
Judge awarded a sum of KShs 300 000 as general damages for pain and suffering and loss of amenities,
KShs 100 000 for future medical expenses and KShs 480 000 in general damages for loss of business.
The appellant challenged all the awards for general damages.
Held – A missing primary exhibit will not cause an appeal to be struck out if there is a certificate issued
by the Deputy Registrar of the Superior Court certifying that the exhibit could not be traced and was not
available for inclusion in the record of appeal.
The assessment of damages in personal injury cases is a daunting task as it involves many
imponderables and competing interests for which a delicate balance must be found – (H West and Sons
Limited v Shephard [1964] AC 326 followed).
An Appellate Court will not disturb an award of damages unless it is so inordinately high or low as to
present an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles or
that he misapprehended the evidence in some material respect, and so arrived at a figure which was either
inordinately high or low. (Butt v Khan [1981] KLR 349 adopted).
The Court of Appeal in discharging its duty to re-evaluate the evidence on a first appeal will be slow
to disturb findings of fact. (Mwanasokoni v Kenya Bus Services Ltd [1985] KLR followed).
Expert opinions are not binding on the court although they will be given proper respect, particularly
where there is no contrary opinion and the expert is properly qualified. (Ndolo v Ndolo [1995] LLR 390
followed).
Loss of earnings is a special damage claim and must be pleaded specifically and strictly proved. In the
absence of a specific pleading, there can be no award for loss of earnings. (Mwangi and another v
Mwangi [1996] LLR 2859).
A victim does not lose his remedy in damages merely because its quantification is difficult. (Wambua
v Patel and another [1980] KLR 336 and Jacob Ayiga Maruja and another v Simeon Obayo, civil appeal
number 167 of 2002 followed).
Appeal partly successful.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA”
Page 141 of [2007] 1 EA 139 (CAK)

means disapproved; “DT” means doubted; “E” means explained; “F” means followed; “O” means
overruled)

East Africa
Butt v Ahmed and another [1977] LLR 2 (CAK)
Butt v Khan [1981] KLR 349 – A
Chanan Singh v Chanan Singh and Handa (1955) 22 EACA 125, 129 (CAK)
Christian Ombete v Kenya Bus Services Limited High Court civil case 529 of 1990 (UR)
Idi Ayub Shabani and another v City Council of Nairobi and another [1984] LLR 208 (CAK)
Jacob Ayiga Maruja and another v Simeon Obayo civil appeal number 167 of 2002 (UR) – F
Joseph Wahome v Patrick Cheni Ngugi and others High Court civil case 2971 of 1985 (UR)
Karangu v Malele [1981] LLR 31 (CAK)
Kenya Bus Services Limited v Mayende [1991] 2 KAR 232
Kitavi v Coastal Bottlers Limited [1985] KLR 470
Margaret Ochieng v David Njihia and another High Court civil case 57 of 1993 (UR
Mativo Mutuva v Mbwika and Kaypee Enterprises High Court civil case 442 of 1980 (UR)
Mwanasokoni v Kenya Bus Services Limited [1985] KLR – F
Mwangi and another v Mwangi [1996] LLR 2859 (CAK)
Narkiso Nyandara v John Nganga Mwaura High Court civil case 5152 of 1988 (UR)
Ndolo v Ndolo [1995] LLR 390 (CAK) – F
Peters v Sunday Post Limited [1958] EA 424
Wambua v Patel and another [1980] KLR 336 – F

United Kingdom
H West and Son Limited v Shephard [1964] AC 326 – F

Judgment
Omolo, Waki and Deverell JJA: This appeal before us arises from a decision of the Superior Court,
Osiemo J in a road traffic accident case and there is no challenge on liability for the accident. The
respondent, who was the plaintiff before the Superior Court, was travelling as a fare-paying passenger in
a matatu vehicle, registration number KUU 516, owned by the appellant and driven by his servant on 11
May 1992 along the Machakos-Kitui Road when the vehicle rolled at high speed and the respondent
sustained bodily injuries.
He listed his injuries in the plaint filed in December 1992 as follows:
“(a) Multiple bruises on forehead.
(b) Deep cut on palm of left hand.
(c) Fracture on left radius and ulna bones.
(d) Severe injuries on left arm.
(e) Severe injuries on the flexion tendons of the thumb, index and middle fingers of the left arm.
(f) Injuries on left fore-arm.”
Page 142 of [2007] 1 EA 139 (CAK)

Two medical reports on the injuries were produced at the hearing of the suit and will be discussed in
detail shortly. He was admitted in Machakos General Hospital for one week and was discharged to
continue as an out-patient. As a result of the injuries, he suffered special damages which he quantified at
KShs 15 400 and general damages which he prayed for as follows:
“(b) General damages for injuries, future medical expenses and for loss of business.”

Only the respondent testified before the Superior Court and produced two medical reports (exhibit 2 and
3), other documents in proof of special damages (exhibit 4) and a sales book in respect of his business
(exhibit 5). All those exhibits, except exhibit 5, are part of the record in this appeal. The explanation is
that exhibit 5, which is a primary document, was lost by the court and could not therefore be included in
the record. An attempt was made at the tail-end of the hearing of this appeal by learned counsel for the
respondent, Mr Masika, to urge us to strike out the appeal on account of the missing exhibit but we reject
that attempt for two reasons: firstly, the oral application was made too late in the day and certainly in
contravention of rules 80 and 101(b) of this Court’s rules. Secondly, there is on record an order of the
Deputy Registrar of the Superior Court made on 28 March 2000 at the request of Mr Masika himself,
who held brief for the appellant’s counsel, certifying that the said exhibit could not be traced and was not
available for inclusion in the record. The certificate was issued pursuant to rule 85(3) of the rules, and the
rule does not limit the nature or number of documents that may be excluded. What more was the
appellant expected to do? We find no impropriety in the order made by the Deputy Registrar and we hold
that the appeal is validly before us.
The appellant, tendered no evidence before the Superior Court and indeed expressly conceded 100%
liability against him. Submissions were then made on both asides, on the special and general damages
awardable on the basis of the evidence on record. In the end the Superior Court, in a short judgment,
made the following findings of fact on the injuries suffered:
“(1) Multiple bleeding bruises on the forehead.
(2) Deep cut palm of the left hand about 10 cms long, 1 cms deep;
(3) Deformed, swollen tender left forearm;
(4) Fracture of left radius and ulna bones. He cannot do any work with the left hand.”

On the basis of those findings, the Judge awarded a sum of KShs 300 000 as general damages for pain,
suffering and loss of amenities. In one sentence, he also awarded KShs 100 000 for future medical
expenses, before turning to loss of earning capacity on which he delivered himself thus:
“I now turn to the issue of loss of earning capacity: Mrs Mwangangi suggested a figure of KShs 1 200 000
adopting multiplier of 5 months. She submitted that if the plaintiff made KShs 8 000 per day and he could not
work in the butchery for 5 months then he lost KShs 8 000 x 5 x 30 = 1 200 000 but the doctor’s report states
that the injuries sustained by the plaintiff could have prevented him from earnings out his business for 2
months. I have to go with the finding of the doctor and adopt 2 months. Hence this figure could be
KShs 8 000 x 30 x 2 = KShs 480 000.
The figure may be brought forward as follows:
(a) General damages for pain, suffering and loss of amenities 300 000
(b) General damages for future medical expenses 100 000
(c) General damages of loss of business 480 000
(d) Special damages 15 400
Total 895 400”
Page 143 of [2007] 1 EA 139 (CAK)
There is no challenge for the award of KShs 15 400 in special damages. The rest of the award was
however challenged on six grounds listed in the memorandum of appeal which were argued as three by
leading senior counsel for the appellant Mr Bill Inamdar. The grounds related to the awards numbered
(a), (b) and (c) above.
It is generally accepted by courts that the assessment of damages in personal injury cases is a daunting
task as it involves many imponderables and competing interests for which a delicate balance must be
found. Ultimately the awards will very much depend on the facts and circumstances of each case. As
Lord Morris stated in H West and Son Limited v Shephard [1964] AC 326 at page 353:
“The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion,
of judgment and of experience. In a sphere in which no one can predicate with complete assurance that the
award made by another is wrong the best that can be done is to pay regard to the range of limits of current
thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to
pose for himself the question as to what award he himself would have made. Having done so, and
remembering that in this sphere there are inevitably differences of view and of opinion, he does not however
proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his
own assessment.”

Nevertheless, there are clear principles which have been decanted over time and will guide us in
considering this appeal. We take it from Law JA in Butt v Khan [1981] KLR 349 at page 356.
“an Appellate Court will not disturb an award of damages unless it is so inordinately high or low as to
represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or
that he misapprehended the evidence in some material respect, and so arrived at a figure which was either
inordinately high or low.”

That decision was subsequently followed in Kitavi v Coastal Bottlers Limited [1985] KLR 470 where
Kneller JA states at page 477:
“The Court of Appeal of Kenya, then should, as its fore-runners did, only disturb an award of damages when
the trial Judge has taken into account a factor he ought not to have taken into account or failed to take into
account something he ought to have taken into account or the award is so high or so low that it amounts to an
erroneous estimate. Chanan Singh v Chanan Singh and Handa (1955) 22 EACA 125, 129 (CAK): Butt v
Ahmed and another [1977] LLR 2 (CAK).”

As for findings of fact made by the Superior Court, this Court in discharging its duty to re-evaluate the
evidence on a first appeal will be slow to disturb them. This has been underscored in many decisions but
we take it from Mwanasokoni v Kenya Bus Services Limited [1985] KLR citing with approval Peters v
Sunday Post Limited [1958] EA 424, thus:
“It is a strong thing for an Appellate Court to differ from the finding, on a question of fact, of the Judge who
tried the case, and who has had the advantage of seeing and hearing the witness.
But the jurisdiction (to review the evidence) should be exercised with caution: It is not enough that the
Appellate Court might itself have come to a different conclusion.”

We must therefore examine carefully whether the findings of fact on which the assessment of damages in
this case were predicated were based on no evidence,
Page 144 of [2007] 1 EA 139 (CAK)

or on a misapprehension of the evidence, or the Judge acted on wrong principles in making the findings.
What arguments are put forward on the three grounds of appeal laid before us?
The first attack was directed at the finding of fact made by the learned Judge that the respondent had
lost his left hand and could not do any work with it. In Mr Inamdar’s submission, the finding was not
supported by the evidence on record. The further statement that the finding was “supported by the
medical report of Dr Kibore and confirmed by the medical report of Dr Shah” was also a misreading of
those reports and a clear indication that due regard was not made of those doctors’ opinions.
The respondent was examined by Dr Kibore on 2 November 1992, six months after the accident and
the doctor’s report was produced as exhibit 2. It is a short one and may be reproduced in full for proper
appreciation:
“Agostino Munyao Kioko – age 61 years.”

History and treatment

This elderly man was involved in a road traffic accident on 11 May 1992 and was taken to Machakos
General Hospital in the following condition:
(1) Conscious but in great pain.
(2) Clothes were torn, blood stained.
(3) Multiple bleeding bruises on forehead.
(4) Deep cut palm of left hand about 10cm long, 1cm deep bleeding profusely.
(5) Deformed, swollen tender left fore-arm.
X-Ray showed:
1. Fracture left radius and ulna bones.
The cut was sutured, anti-tetanus toxoid, antibiotics, analgesics were given. The left fore-arm was put in
an out-patient for three months.
Present Condition:
(1) Deformed, painful weak left arm.
(2) Weakness left hand.
(3) Contractures of the first, second and third fingers on the left hand.

Prognosis
This patient sustained severe injuries to his left arm. The fractured ulna and radius did not unite properly
(not unusual at his age) and so the arm is now deformed, painful and weak. In addition the flexic tendons
of the thumb, index and middle finger left side were injured and the affected fingers are now held in a
degree of flexion (contracture) further reducing the use of the left hand. This patient requires operative
treatment for both the fracture and the contractures.”
Six months later on 14 April 1993, Dr Shah also examined him and filed his report produced in
evidence as exhibit 3. After relating the history and the present complaints that he “cannot do any work
with left hand”, Dr Shah made his findings and prognosis which may also be reproduced in full:
Page 145 of [2007] 1 EA 139 (CAK)
“Present Examination Findings: Head has no abnormality. He has a 1” long scar over right elbow and a 5 inch
long scar over left hand palm.
Pronation, internal rotation, movement of left forearm is reduced by 25 degrees. Wrist movements are full.
There is a small degree of stiffness of joints of fingers of this hand so that on making fist the finger tips fail to
reach palm. So the fist making is incomplete. There is a slight deformity of left forearm. Fractures have
united.
There are no contractures of fingers.
Opinion: As result of that accident, this man sustained fractures of left forearm bones (the radius and ulna)
and a few cuts. So he had to be hospitalised for one week.
Left forearm, fractures: These could be expected to have caused pain for a few weeks, followed by
discomfort for 2 months. He would not have been able to use that limb for 6 weeks.
He is now left with some restriction in pronation (internal rotation) movement of left forearm and is unable
to make full fist. These are permanent disabilities. The disabilities are moderate in that he has lot of
movement of forearm and he has some definite handicap in the use of left hand. And he is right handed. As a
rough approximation, the strength and function of left hand can be said to have been reduced by 20 percent.
There is no evidence to show that any tendons were injured. And he has no contractures of any fingers.
He does not need any operation for his fractures, except that an attempt at close manipulation of fingers
might be worth trying to see if the finger tips can bend fully to make full fist. Such procedure could cost all
total of about KShs 10 000.
Since he has no contractures of any of his fingers, he does not need any operation for that.
His injuries could have prevented him from working for 2 month after the accidental.
The deformity of left forearm is slight and there should be no pain after first two months from time of the
accident (and he has not complained of any pain).”

The reports therefore, according to Mr Inamdar, confirm that the left hand was only “weak” during the
first six months while, almost one year later, it was assessed at 20% permanent disability but was
otherwise declared a useful hand. In his view, the misdirection in that finding led to an erroneous
assessment of general damages for pain suffering and loss of amenities at a figure which was inordinately
high in the circumstances and which this Court ought to interfere with. Referring to three previous
decisions of the High Court on comparable awards, he submitted that the award on that head would be
between KShs 125 000–130 000 and no more.
On the other hand, Mr Masika found no fault with the finding since the respondent testified that he
had lost use of the hand and he was seen in court by the trial Judge. The opinions of the doctors, he
submitted, were only for guidance and were not binding on the Judge. Nevertheless, the Judge combined
the respective opinions of the two doctors that there was reduced use of the hand and a percentage of
permanent disability together with the oral testimony of the respondent to arrive at the finding he made
and he cannot be faulted. Mr Masika further submitted that there was bound to be a difference in the
opinions of the doctors because they were instructed to examine the respondent on both sides of the case
and the opinions would favour the instructing client.
Page 146 of [2007] 1 EA 139 (CAK)

We find this latter submission by Mr Masika rather disconcerting since the suggestion appears to be
that doctors would consciously sacrifice their professional integrity and honour at the altar of monetary
benefit! Like other sciences, medicine is not an exact science and that is why expert medical opinion is
no different from other expert opinions.
We have stated before, and it bears repeating, that such opinions are not binding on the court although
they will be given proper respect, particularly where there is no contrary opinion and the expert is
properly qualified. But a court is perfectly entitled to reject the opinion if upon consideration alongside
all other available evidence there is a proper and cogent basis for doing so. In Ndolo v Ndolo [1995] LLR
390 (CAK), this Court stated:
“The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration,
the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered
along with all other available evidence and it is still the duty of the trial court to decide whether or not it
believes the expert and give reasons for its decisions. A court cannot simply say: ‘Because this is the evidence
of an expert, I believe it’.”

Coming back to the opinions of the doctors in this matter, which we have carefully examined, we think in
view of the different period in which the respondent was examined, it cannot be strictly submitted that
their opinions are divergent. In both reports the major injury was on the left hand which was malunited or
deformed and three fingers of that hand which had no contractures and thus restricted further the use of
that hand. The other comments by the two doctors are worth considering too, but on the whole, taking
their evidence together with the respondent’s evidence, we are unable to say that the learned Judge was
wrong in principle in making a finding that the respondent lost the use of his left hand, although we
would not go as far as stating that it was totally useless and could not do any work at all.
It was suggested by Mr Inamdar that the injuries were in the same league as the injuries in the
following decided cases:
“(1) Narkiso Nyandara v John Nganga Mwaura High Court civil case 5152 of 1988 (UR) where
Mbongholi J awarded KShs 100 000 in general damages for a cut wound on the left supra-orbital
region, deformed subleen left wrist and deep cut on the wrist, fracture of the left ulna and radius lower
third;
(2) Christian Ombete v Kenya Bus Services Limited High Court civil case 529 of 1990 (UR) where Mwera
J in 1992 awarded KShs 100 000 for a fracture of the right radius and ulna which were well healed,
with 5% disability, bruises over the right elbow and soft tissue injuries; and
(3) Margaret Ochieng v David Njihia and another High Court civil case 57 of 1993 (UR) where Kuloba J
in 1995 awarded KShs 250 000 in general damages for fracture of both radius and ulna of the lower
third, poor grasp in left hand, paralysis of left hand, resulting in 20% disability, pains and left ankle
swelling.”

With respect, we do not think the injuries suffered by the respondent here were comparable to the first
two cases cited above. Mr Masika suggested that we apply the decision of this Court in Idi Ayub Shabani
and another v City Council of Nairobi and another [1984] LLR 208 (CAK) where an award of
KShs 350 000 was made for personal injuries to a young school boy, the most serious of which was to
the left arm and elbow which was permanently disabled. Three operations had already been done on the
hand. Permanent disability had been assessed at 75%. The award included an element of loss of earning
Page 147 of [2007] 1 EA 139 (CAK)

capacity. Again with respect, we think the award in that case is not comparable to the case at hand.
In his judgment, the learned Judge relied on the award of general damages made in Joseph Wahome v
Patrick Cheni Ngugi and others High Court civil case 2971 of 1985 (UR) where KShs 250 000 was
awarded for a fracture of the head of the left radius, cuts on the left brow of nose and on outer aspect of
the upper lip and loss of upper incisor tooth. He considered the injuries in the two cases comparable and
in view of the fact that the award in that was some eight years old, he awarded KShs 300 000 in this case.
We have considered the submissions of counsel and the authorities cited before us but we cannot,
with respect, find any violent departure in principle in the assessment of general damages for pain
suffering and loss of amenities in this matter. Indeed we find even closer comparison with it to the case
cited by Mr Inamdar as number three above. The award in this case is higher by some KShs 50 000 but
we do not consider it inordinately so high as to deserve our interference. The respondent’s injuries, in our
view, were fairly serious although we hesitate, as we said earlier, to classify them with the “useless claw”
referred to by Muli J (as he then was) in Opuka v Akamba Public Road Services Limited High Court civil
case 1684 of 1976, or “the chumsy and “useless appendage” which the plaintiffs’ hand became in
Karangu v Malele [1981] LLR 31 (CAK), or the “man in no better position than a man with no left hand
and forearm” in Mativo Mutuva v Mbwika and Kaypee Enterprises High Court civil case 442 of 1980
(UR), all of which attracted damages of KShs 170 000, 200 000 and 250 000 respectively, more than
twenty years ago.
In the result, we reject that ground of appeal and affirm the assessment of damages made by the
Superior Court for pain suffering and loss of amenities.
The second ground of appeal relates to the award of KShs 100 000 for future medical expenses in one
sentence which made no reference to the pleadings or any evidence relating thereto. There was a
recommendation in the medical report of Dr Kibore that future treatment may be required both for the
fracture and the contractures but there was no opinion expressed on the cost of such operation. Dr Shah,
for his part found it was necessary to have a future operation for manipulation of the deformed fingers
but he estimated the cost for such operation to KShs 10 000. There was no other evidence, including the
respondent’s own, which related to the cost of future medical treatment. In the premises, we agree with
Mr Inamdar that there was no evidence to justify the award made by the learned Judge. Mr Masika
conceded that there was no evidential basis for the award and that the respondent has not attempted any
medical operation 14 years after the accident.
We allow the appeal on that ground, set aside the award of KShs 100 000 and substitute therefor an
award of KShs 10 000.
The final ground of appeal is on the award of KShs 480 000 ostensibly for loss of business, although
the issue set out for consideration by the learned Judge was loss of earning capacity. We have set out the
issue above and the manner in which it was resolved. It was Mr Inamdar’s submission that the award was
wholly misconceived as it was not pleaded at all as a special damage. Furthermore, there was no evidence
on the basis of the calculations relied on by the court.
Page 148 of [2007] 1 EA 139 (CAK)

The basis of the award was the pleading in paragraph 6 of the plaint which was as follows:
“The plaintiff further avers that prior to the said injuries he was running, inter alia, a profitable butchery
business in Machakos Town but following the injuries his business suffered and continues to suffer a great
drawback since he could not operate it as he used to do prior to the accident.”

It was on that pleading that prayer (b) for general damages for loss of business was made. But the award
was made for damages suffered for two months soon after the accident, that is to say, between 11 May
1992 and 10 July 1992. So clearly, the loss of business or loss of earnings had already been incurred
before the suit was filed and was in the nature of special damages. These, as the law stipulates, ought to
have been not only specifically pleaded but also strictly proved. In Mr Inamdar’s view therefore, there
was no basis for the award of the claim for loss of earnings and the award ought to be set aside
altogether. Even if it was assumed that the pleadings for loss of business and prayer for general damages
thereunder was relating to loss of earning capacity which may be pleaded as such, Mr Inamdar still
submitted that there was no evidence relating to the multiplicand or the amount earned by the respondent.
The only evidence on record was a brief one by the respondent as follows:
“I was engaged in butchery business. Prior to the accident, I earned KShs 80 000 per month net profit. After
the accident I did not continue with the said business. I stopped the people I had employed, I closed the
business. I used to do purchasing of the animals, I stopped the purchasing of the animals, I stopped the
business ... this is the sales book, exhibit 5.”

There was nothing exhibited in form of audited accounts to prove the monthly net profit which would
end up as a substantial net annual income of KShs 960 000. The only document produced was a sales
book which, as stated earlier, was lost by the court and is not before us. Calculations by the learned Judge
were however based on a daily income of KShs 8 000 which would amount to KShs 240 000 per month.
It would mean therefore that the award was not made on the basis of the evidence on record.
KShs 80 000 per month would translate to about KShs 2 700 per day and therefore the damages
awardable would have been drastically less. Mr Inamdar once again called for setting aside of that
award, as it was untenable in law and in fact.
For his part Mr Masika submitted that there was unchallenged evidence by the respondent that he was
running a butchery business which was closed as a direct result of the accident. He conceded however
that there was no factual basis for the finding that the daily net loss was KShs 8 000 since the evidence
by the respondent was that he earned a net profit of KShs 80 000 per month. The pleading for special
damages for loss of earnings was also not made and therefore no award could be made. Mr Masika
however submitted that on the basis of the evidence and the pleading relating to loss of business, this
Court in exercise of its duty to re-evaluate the evidence, has enough material to make a finding on loss of
earning capacity and make a reasonable award thereunder.
We think, for our part, that the pleading made on behalf of the respondent for claim of damages, for
loss of earnings or loss of business was even raised during the submissions of counsel in the Superior
Court. Loss of earning is, as correctly submitted by Mr Inamdar, a special damage claim and must be
pleaded specifically and strictly proved. We were referred to Mwangi and another v Mwangi [1996] LLR
2859 (CAK) where that principle was underscored, thus:
Page 149 of [2007] 1 EA 139 (CAK)
“In her plaint the respondent had claimed damages for loss of earnings and loss of earning capacity. Loss of
earnings is a special damage claim. It must be specifically pleaded and strictly proved. The damages under the
head of ‘loss of earning capacity’ can be classified as general damages but these have also to be proved on a
balance of probability. The plaintiffs, cannot just ‘throw figures’ at the Judge and ask him to assess such
damages. See the case of Kenya Bus Services Limited v Mayende [1991] 2 KAR 232 at page 285.”

In the absence of a specific pleading therefore, it is our judgment that there could be no award made for
loss of earnings. There is nevertheless a pleading that the respondent lost his business since he closed it
down after the accident. His earning capacity was in effect lost and we understand why the learned Judge
equated the issue of loss of earning capacity with the loss of business and awarded a figure for the latter.
Even then, as stated in the Mwangi case (supra) evidence ought to be placed before the court to assess
such loss as general damages.
We appreciate the expectation of Mr Inamdar that accounts books, income tax returns or audited
accounts would have put the claim beyond doubt if it was specifically pleaded as special damages or
even as general damages. But there is dicta in decided cases that a victim does not lose his remedy in
damages merely because its quantification is difficult. Apaloo J (as he then was) considered such
difficulties in the case of a village-man in his mid-fifties dealing in cattle trade, who was injured in a road
traffic accident. He stated:
“I am bound to say that the evidence he led of his earnings, is of very poor account. Although he appeared to
be a man of enterprise and was somehow exposed to banks and did business with a state commission, that is,
the Kenya Meat Commission, he kept no books of account or any business books. So his income and
expenditure were all stored up in his memory. He has apparently not heard of income tax and never paid any
in his 24 year cattle trade. It should require no ingenuity to see that figures he gave as his earnings supplied
from his memory bank, may well be exaggerated. I think the figures the plaintiff gave as his business earnings
and expenditure, must be considered with great care. Nevertheless, I am satisfied that he was in the cattle
trade and earned his livelihood from that business. A wrongdoer must take his victim as he finds him. The
defendants ought not to be heard to say the plaintiff should be denied his earnings because he did not develop
more sophisticated business methods.”

That case was Wambua v Patel and another [1980] KLR 336. This court also stated recently, in June
2005:
“We do not subscribe to the view that the only way to prove the profession of a person must be by the
production of certificates and that the only way of proving earnings is equally the production of documents.
That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records
and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But
we reject any contention that only documentary evidence can prove these things.”

See Jacob Ayiga Maruja and another v Simeon Obayo civil appeal number 167 of 2002 (UR).
The matter related to a 53 year old carpenter, who had a family and school-going children and was
said to be earning about KShs 5 000 per month. He was killed in a road traffic accident and the court was
grappling with assessment of damages with scanty evidence on his earnings. The evidence from his
brother was:
Page 150 of [2007] 1 EA 139 (CAK)
“I do not have any document to show that my brother was a carpenter. I do not have any document to support
that my brother earned KShs 5 000 per month. I do not know whether my brother filed income tax returns.”

His widow could only state that the deceased was educating their children but she has no document to
show for it or his income.
We propose to adopt the reasoning in these decisions in the matter before us. Admittedly, the
evidence tendered on the respondent’s earnings was poor and the best he could do was produce a sales
book (exhibit 5) which the Superior Court had the benefit of examining but we do not. The sworn
evidence that he was carrying on the business of butchery which he had to close down as a result of the
accident was unchallenged. On the basis of the evidence by the respondent that he earned KShs 80 000
per month and using a multiplier of 2, we would award general damages for loss of earning capacity at
KShs 160 000. Subject to that extent, the ground of appeal succeeds and the award of KShs 480 000 is
hereby set aside and substituted with a figure of KShs 160 000.
The final awards may be summarised as follows:
“(a) General damages for pain suffering and loss of amenities 300 000
(b) General damages for future medical treatment 10 000
(c) General damages for loss of earning capacity 160 000
(d) Special damages 15 400
Total 485 400”

In the end the appellant has succeeded substantially in the appeal but the respondent too has retained
much of what was awarded by the Superior Court. We think in the circumstances that the fairest order on
costs would be that each party will bear it own costs of this appeal. It is so ordered.
For the appellant:
Mr Bill Inamdar
For the respondent:
Mr Masika

Kitosi and others v Bumero Estates Limited

[2007] 1 EA 150 (CAU)

Division: Court of Appeal of Uganda at Kampala

Date of judgment: 23 March 2007
Case Number: 53/01
Before: Kikonyogo DCJ, Bahigeine and Kavuma JA
Sourced by: LawAfrica
Summarised by: E Dimba
[1] Land law – Property vacant at the time of issuance of certificate of title – Whether respondents had
customary interests thereto – Whether respondents were customary tenants.

Editor’s Summary
The respondent instituted a suit against the appellants for trespass among other things upon the
respondent’s land (“the suit property”).
Page 151 of [2007] 1 EA 150 (CAU)

At the time when the respondent applied for a certificate of title, the suit property was vacant and
unoccupied. The respondent contended that the appellants unlawfully entered upon and occupied the suit
property after granting of the lease by the Uganda Land Commission.
The appellants denied liability contending that they were in occupation of the suit property prior to
the grant of the leasehold in respect of the same as customary tenants.
The appellants filed a counter-claim seeking dismissal of the respondent’s suit and cancellation of the
title obtained fraudulently, and alternatively sought, inter alia, that they be declared the lawful and bona
fide occupants or customary tenants of the suit property.
The trial Judge passed judgment in favour of the respondent, thereby ordering the appellants inter alia
to give vacant possession of the suit property to the respondent as the rightful owner.
The appellants lodged an appeal against the judgment of the trial Court on grounds inter alia that the
trial Judge erred in finding that the appellants could not be said to hold land under customary tenure.
Held – PW4 who was authorised to apply for the lease, satisfactorily explained the non-compliance with
the laid down procedure. It was not due to dishonesty but he was acting on information given to him by
the secretary of the Land Commission, namely that customary tenure was public land not leased to any
person or inhabited. It was for that reason that he did not consider it necessary to mention customary
tenants as was required in the application form. In any case, there were no occupants on the suit property.
(Katwirema v William Kitwiremu and others 1977 HCB 187 and Marko Matovu v Mohammed Ssemu and
another [1979] HCB 174 distinguished).
There was no proof to show that the respondent had knowledge of the appellants’ customary interest
in the suit property. Dishonesty or fraud on the part of the respondent had not been established by the
appellants.
The failure by the inspection committee to inspect every part of the suit property was not detrimental
to the respondent’s application for a certificate of title. Failure to disclose whether the suit property was
occupied by customary tenants was not prejudicial to the appellants since there was no person on the suit
property.
There was overwhelming evidence before the court to show that the appellants had no customary
interest in the suit property.
The appellants were not on the suit property at the time of the respondent’s application for a
certificate of title or surveying or the allocation of the same. (Venansio Bamweyana and others v
Kampala District Land Board and George Mitala civil appeal number 20 of 2002 distinguished).
The appellants were not on the suit property and hence were not customary tenants. The learned trial
Judge rightly concluded that the suit property was available for allocation.
Fraud must not be presumed. It must be clearly stated, pleaded and strictly proved.
The appellants could not have been bona fide occupants or customary tenants because they were not
on the suit property at the material time. The survey
Page 152 of [2007] 1 EA 150 (CAU)

could not have shown what was not on the land which was surveyed. The appellants had no interest to
be protected. There was no evidence to prove that the allocation of the suit property was obtained
through political influence (Marko Matovu and others v Sseviri and another [1979] HCB 174
distinguished).
The appellants failed to prove underhand means of obtaining the document or falsification of
documents or fraudulent facts complained of. The burden of proof in fraud cases is heavier than on a
balance of probabilities. (Kampala Bottlers Limited v Domanico Uganda Limited civil appeal number 22
of 1992 applied).
The trial Judge was justified to dismiss the counter-claim and the appellants’ application for orders of
an injunction or compensation.
Appeal dismissed.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Kampala Bottlers Limited v Domanico Uganda Limited civil appeal number 22 of 1992 – AP
Venansio Bamweyana and others v Kampala District Land Board and George Mitala civil appeal
number 20 of 2002 – D

United Kingdom
Katwirema v William Kitwiremu and others 1977 HCB 187 – D
Marko Matovu and others v Sseviri and another [1979] HCB 174 – D

Judgment
Kikonyogo DCJ: This appeal is against the judgment of the High Court sitting at Jinja in Civil Suit
number 122 of 2005 delivered on 6 April 2005. It is seeking orders of this Court to set aside the judgment
passed in favour of the respondent and to dismiss its counter-claim.
The background of the appeal is, that Bumero Estate Limited Company, (hereinafter to be referred to
as the respondent) instituted a suit against Kitosi Charles and originally 1266 others but later reduced to
3 (three) (hereinafter to be referred to as the appellants,) for trespass among other things, on the
respondent’s land (hereinafter to be referred to as the suit property). The suit property is comprised in
LRV 1289 Folio 14 measuring approximately 2400 hectares. It is situated at Bumero Village in Iganga
District. The respondent was issued with a certificate of title in respect of the suit property on 4 January
1984.
At the time of the application for the certificate of title, the suit property was vacant and unoccupied.
It is the respondent’s case that the appellants unlawfully entered upon and occupied the suit property
after the grant of the lease by the Uganda Land Commission (ULC). The trespass started in 1991 and
continued up to the time the respondent filed this suit in the High Court.
The appellants denied any liability. They are not trespassers on the suit property. They were in
occupation of the suit property prior to the grant of the
Page 153 of [2007] 1 EA 150 (CAU)

leasehold in respect of the suit property. The claims of some of the appellants in the suit property date
back to 1975. As far as they are concerned, they are lawfully on the suit property as customary tenants.
They, therefore, filed a counter-claim seeking dismissal of the respondent’s suit and cancellation of the
title obtained fraudulently. In the alternative, the appellants prayed to the Court to declare them lawful
and bona fide occupants, or customary tenants of the suit property. Further, they prayed for a permanent
injunction to restrain the respondent from interfering with their occupation as lawful owners of the suit
property and costs of the suit.
Upon hearing the evidence adduced by both sides, the learned trial Judge passed judgment in favour
of the respondent. The appellants were ordered to give vacant possession to the respondent as the rightful
owner. A permanent injunction was issued by the court to restrain the appellants from continuing with
the unlawful occupation of the suit property. The respondent was also awarded general damages in the
sum of UShs 10 million and costs of the suit.
Aggrieved by the judgment of the trial court, the appellants lodged this appeal to this Court, through
their learned counsel, Mr Mbabazi. The memorandum of appeal contains the following seven grounds:
(1) The learned trial Judge erred in law and fact when he failed to properly evaluate the evidence,
thereby coming to a wrong conclusion.
(2) The learned trial Judge erred in law and fact when he found that the appellants could not be said to
hold land under customary tenure.
(3) The learned trial Judge erred in law and fact when he selectively evaluated the evidence and filled
in gaps for the respondent, by way of speculation and conjecture.
(4) The learned trial Judge erred in law and fact when he held that the appellants were not bona fide
occupants.
(5) The learned trial Judge erred in law and fact when he found that the suit land was available for
leasing at the time the respondent acquired title.
(6) The learned trial Judge erred in law and fact when he found that the respondent did not commit
any act of fraud when acquiring title to the suit land.
(7) The learned trial Judge erred in law and fact when he failed to consider the legal capacity of the
respondent at the time of application for the lease.
The appellants prayed to the Court to allow the appeal and set aside the judgment of the High Court
dated 6 April 2005 passed in favour of the respondent and dismiss the appellants’ counter-claim and
enter judgment in favour of the appellants, as hereunder:
(a) Dismissal of the respondent’s claim;
(b) Entry of judgment on the counter-claim.
At the opening of his submissions, Mr Mbabazi had intimated to the court that he would start with
grounds one and three together. However, at the end of his submissions he informed the Court that as the
grounds overlap, he found that he had covered all the issues raised in all the grounds, namely one, two,
three, five, six and seven. Ground four was abandoned.
Both counsel, Mr Sserwanga and Mr Ojakol who represented the respondent followed the order set
out in the memorandum of appeal.
Page 154 of [2007] 1 EA 150 (CAU)

In his submissions, Mr Mbabazi criticised the learned trial Judge for failing to properly evaluate the
evidence on which he based his decisions. Starting with grounds one and three, he submitted that the
learned trial Judge erred in law and fact because he failed to properly evaluate the evidence, thereby
coming to a wrong conclusion. To him, the learned Judge acted upon speculation and on close perusal of
the evidence adduced by each side, I concede that Mr Mbabazi may have a point with regard to the
capacity of the respondent at the time the application was made. However, PW4 Masiga who was
authorised to make the application gave a cogent explanation as to how that happened. He acted on the
advice of their counsel. As the irregularity was curable and indeed was subsequently cured by
ratification, it would be unfair to visit it on the client. Clearly, this was more of a technicality than a
fraudulent intent or evidence of dishonesty. In my view, this is a proper case in which to invoke article
126(2)(e) of the Constitution which enjoins courts of law to administer substantive justice without undue
regard to technicality. The omission by the learned Judge to address the issue of non-existence of the
respondent in the circumstances of this case was not detrimental to the appellants’ claim if any.
Alternatively, as submitted by Mr Ojakol, this was a case of a pre-incorporation contract.
A further complaint by the counsel was the failure by the trial Judge to properly consider the
discrepancies and misinformation in the application form and inspection report, which facilitated the
grant of a fraudulent lease to the respondent. It was argued for the appellants that, the recommendation
by the District Land Committee of the allocation of the suit property was based on the fraudulent
inspection report. The evidence available by the inspection Committee did not carry out proper
inspection of the entire suit property but only viewed it from the top of Mwema hill. That explains why
the District Land Commission recommended allocation of 13 000 hectares which were not available on
the ground. It was argued that, had the learned trial Judge addressed his mind to those irregularities, he
would have concluded that the transaction was tainted with fraud on the part of the respondent.
In reply to Mr Mbabazi’s submissions, Mr Sserwanga pointed out that the learned trial Judge had
carried out a detailed evaluation of both oral and documentary evidence adduced by the parties. The
learned Judge carefully examined the entries on the exhibits complained of. He read them together and
then came to the decision that there were no customary tenants on the suit property at the time of the
allocation. It was contended by Mr Sserwanga that it was wrong for counsel for the appellants to
comment on each entry on the exhibit separately and submit on them out of context. The attack on the
learned trial Judge was misplaced.
For convenience, my evaluation of the evidence on record will follow a slightly different order from
that adopted by both counsel.
I will consider grounds one, two, three, five, six and seven together and conclude with ground two.
With regard to the failure to address the misinformation in the application form, PW4 Masiga, who
was authorised to apply for the lease, in my view, satisfactorily explained the non-compliance with the
laid down procedure. It was not due to dishonesty but he was acting on information given to him by the
Secretary of the Land Commission, namely that customary tenure was public
Page 155 of [2007] 1 EA 150 (CAU)

land which was not leased to any one or inhabited. It was for that reason that he did not consider it
necessary to mention customary tenants as was required in the application form. In any case, there were
no occupants on the land.
This case is distinguishable from that of Katwirema v William Katwiremu and others 1977 HCB 187
where it was held that:
“If a person procures registration to defeat an existing unregistered interest on the part of another person of
which he is proved to have knowledge then such a person is guilty of fraud.”

A similar finding was made in the case of Marko Matovu v Mohammed Ssemu and another [1979] HCB
174 that:
“Knowledge of other person’s rights or claim over land and the deliberate acquisition of a registered title, in
face of protests is fraud.”

In the instant case there is no proof to show that the respondent had knowledge of the appellants’
customary interest in the suit property.
On the discrepancies between the inspection report by the Inspection Committee and the certificate
with regard to the area available for allocation, the position was clearly explained by PW4 Masiga. It is
true, the Inspection Committee led by the Chairman, Afuna Adula, did not inspect each and every part of
the suit property as already seen. This is because the land was covered with bushes, forests and there
were no roads and no activities. It was so vast that they decided to climb Mwema hill where they could
get a good view of the land. Clearly, the figure of 13 000 hectares recommended by the District Land
Committee was a mere estimate. However, following the inspection, PW2, Roger Byaruhanga, was
instructed to survey 13 000 hectares by the District Land Committee. He surveyed only 2 400 hectares
because that is what was available. The assignment took the surveyor two months. He said there were no
roads, schools, or any infrastructure. The evidence of PW2 tallied with that of PW3, and clearly explains
the discrepancy between 13 000 and 2 400 hectares. Finding that the land was impassable, the inspection
team had no way of inspecting it all. That is apparently why they climbed the hill to view it. On the other
hand, PW2, who could pass through the bush and forest, came out with the correct figure of 2 400
hectares. Given the above circumstances and a close perusal of the evidence before court, dishonesty or
fraud on the part of the respondent is ruled out.
The failure by the inspection committee to inspect every part of the suit property, in my view, was not
detrimental to the application. The surveyor came out with the exact figures. His evidence, in fact, goes
further to support the respondent, that the land was not inhabited at the time of the application.
On my part, I am satisfied that the learned trial Judge ably dealt with all the issues raised by counsel,
where it is contended that he did not properly evaluate the evidence. The main issue in this case was
whether the land allocated to the respondent was free of any encumbrances to which the answer is in the
affirmative.
Failure to disclose in the reports whether the suit property is occupied by customary tenants was not
prejudicial to the appellants in this case because there was nobody on the land. I do not accept the
submission by counsel for the appellant, that application form should not have indicated the words
“customary tenure” if the land was not occupied. I have no convincing reasons to
Page 156 of [2007] 1 EA 150 (CAU)

disbelieve PW4 Masiga’s explanation and understanding of the terms “customary tenure”. This takes
care of the fifth ground, too, where the learned trial Judge was criticised for holding that there was land
available for leasing at the time the respondent acquired title.
On the second ground, the learned trial Judge was criticised for overlooking the appellants’ customary
interest which they were deprived of by the allocation of the suit property to the respondent. The
criticism is not justified. There was overwhelming evidence before the court to show that the appellants
had no customary interest in the said land. All the respondent’s witnesses testified that the land in
question was all bush with no settlements. The most reliable evidence is that of the independent witness,
PW2, the surveyor, Roger Byaruhanga who surveyed and cleared the boundaries on the land.
The appellants’ evidence, too, supported the respondents’ case. They conceded that they did not see
any surveyors on the land, yet he and his team stayed there for two months. Further, on examination of
their evidence, the learned trial Judge found it contradictory, weak and most of it hearsay. He, therefore,
rejected it as being unreliable.
I agree with the findings of the trial Judge and I would also like to add that it’s difficult to believe that
DW1, at the tender age of 5 years, would still remember the information of their interest in the suit
property passed to him by his father.
Clearly, the appellants were not on the land at the time of the application, or surveying or the
allocation of the suit property. They entered upon the said property in 1991. It is, therefore, not correct to
say that the learned trial Judge disregarded the appellants’ interest in the land. It is worthy noting that he
even considered the relevant provisions of the law applicable to their claim but was not of assistance to
them as there was no interest to protect.
This case is distinguishable from some of the recent cases decided by this Court and cited in this
appeal which include Venansio Bamweyana and others v Kampala District Land Board and George
Mitala civil appeal number 20 of 2002 and which are almost on all fours. However, the claimants in
those cases established their interest which is not the case in the present appeal. It is, also, worthwhile
noting that the issue in the present case is not the nature of the interest but the existence of the claim,
whereas in aforesaid cases the question in issue was the nature of the interest.
The evidence from both sides clearly shows that the appellants were not on the suit property and
hence were not customary tenants. As the appellants’ interest in the suit land was rejected and there was
no other encumbrances or rightful claimants, the learned trial Judge rightly concluded that the land was
available for allocation, as indicated earlier on.
Lastly, I will consider, the issue of fraud already touched on. Fraud must not be presumed. It must be
clearly stated, pleaded and strictly proved. The learned trial Judge stated the correct position of the law in
the present case and he correctly applied it to each fraudulent act alleged by the appellant in this case.
In agreement with the learned Judge, fraud was not proved. On the evidence from both sides, the
appellants could not have been bona fide occupants or customary tenants because they were not on the
disputed land at the material time as seen throughout the evaluation of the evidence.
The survey could not have shown what was not on the land surveyed. The respondent could not have
reported the existence of people who were not
Page 157 of [2007] 1 EA 150 (CAU)

there. The appellants had no interest to be protected. There was no evidence to prove that the allocation
of the suit property was obtained through political influence. In contrast to the decision in the case of
Marko Matovu and others v Sseviri and another [1979] HCB 174, the misinformation complained of was
not intentional. It would be unfair in the circumstances of the present case to impute fraud on the
respondent on the facts of this case.
On the counter-claim to cancel the certificate issued to the respondent and prayers for an injunction
and compensation which were dismissed by the High Court, no evidence of underhand means of
obtaining the documents or falsification of documents or the fraudulent acts complained of, were proved
in this case. As it was held in the case of Kampala Bottlers Limited v Domanico Uganda Limited civil
appeal number 22 of 1992, the burden of proof in fraud cases is heavier than on a balance of
probabilities.
In the result, the learned trial Judge was justified to dismiss the counter-claim and the appellants’
applications for orders for an injunction or compensation.
All in all, on the record before the court and for the aforesaid reasons, I find no merit in the appeal.
All the grounds of the appeal must fall and I would accordingly dismiss the appeal and uphold judgment
and all the orders of the High Court.
As my learned sister Honourable Justice AEN Bahigeine JA and brother Honourable Justice SBK
Kavuma JA also agree, this appeal is dismissed by unanimous decision of the court.
The judgment and orders dismissing the counter-claim and the other orders of the High Court are
hereby upheld. The respondent is awarded costs in this Court and in the High Court.
Bahigeine JA: I have read the judgment of my Lord Mukasa-Kikonyogo DCJ. I entirely agree that the
appeal is devoid of any merit and ought to be dismissed. I have nothing useful to add.
Kavuma JA: I have had the advantage and benefit of reading in draft the judgment prepared by the
Honourable Justice LEM Mukasa-Kikonyogo DCJ. I totally agree with that judgment and the orders
made therein and have nothing to add.
For the appellant:
Mr Mbabazi
For the respondent:
Mr Sserwanga and Mr Ojakol

Kitsao v Republic
[2007] 1 EA 157 (CAK)

Division: Court of Appeal of Kenya at Mombasa

Date of judgment: 26 January 2007
Case Number: 269/06
Before: Omolo, Waki and Onyango-Otieno JJA
 Before: Omolo, Waki and Onyango-Otieno JJA
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Criminal procedure – Summing-up evidence to assessors – Whether failure to sum up the evidence
tendered to the assessors amounts to a mistrial.
[2] Criminal procedure – Factors for the court to consider before ordering a re-trial.
Page 158 of [2007] 1 EA 157 (CAK)

Editor’s Summary
The appellant was charged and convicted with the offence of murder. He appealed citing, inter alia, that
the trial Judge failed to sum up the evidence to the assessors and give them proper directions before
receiving their evidence, and that the trial was therefore a nullity. The respondent however submitted that
this failure only amounted to a mis-trial and that the prosecution could avail witnesses for a retrial.
Held – Although section 322(1) of the Criminal Procedure Code uses the word “may” and gives the court
the discretion to sum up the evidence to the assessors before requiring the assessors to state their
opinions, by usage and case law, summing-up to the assessors is no longer a discretionary matter, for if
the court requires the assessors to be of any use to it, the assessors must make informed opinions which
they can only do upon the court summing-up the entire evidence to them and at the same time directing
them on issues of law; that the summing-up must not only be done but must be seen to be done.
Summing-up has gained the force of law and is now a must. (Joseph Mwai Kungu v Republic criminal
appeal number 68 of 1993 (UR) followed).
There must be on record evidence that summing-up to the assessors was undertaken or that there was
some special and compelling reason why that was not done. There is no tangible evidence that the
learned Judge summed up the evidence that was before her to the assessors. There is no such written
summary in the record and no special or compelling reason has been given for failure to do so. Hence the
entire trial was a mistrial.
In this case, the witnesses are not only traceable but would be availed immediately on the order for
retrial. The circumstances giving rise to the trial in the Superior Court being declared a mis-trial were
occasioned by the error on the side of that Court. A person lost his life and it is only proper that whoever
could have been responsible be brought to book. Although the appellant has not enjoyed liberty for close
to seven years but when this is considered against the need for justice and the assurance of the principal
state counsel that witnesses are going to be available for an early disposal of the retrial, what commends
itself to the court is an order for retrial. (Pascal Ouma Ogolo v Republic criminal appeal number 114 of
2006 (UR), Fundi Reuben Ngala v Republic criminal appeal number 268 of 2006 (UR) distinguished;
Ahmed Sumar v Republic [1964] EA 481, Bernard Lolimo Ekimat v Republic criminal appeal number
151 of 2004 (UR) applied).
Appeal succeeds.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Ahmed Sumar v Republic [1964] EA 481 – AP
Bernard Lolimo Ekimat v Republic criminal appeal number 151 of 2004 (UR) – AP
Page 159 of [2007] 1 EA 157 (CAK)

Fundi Reuben Ngala v Republic criminal appeal number 268 of 2006 (UR) – D
Joseph Mwai Kungu v Republic criminal appeal number 68 of 1993 (UR) – F
Pascal Clement Braganza v R [1957] EA 152
Pascal Ouma Ogolo v Republic criminal appeal number 114 of 2006 (UR) – D

Judgment
Omolo, Waki and Onyango-Otieno JJA: The appellant in this appeal Charo Katana Kitsao was
charged before the Superior Court with the offence of murder contrary to section 203 as read with section
204 of the Penal Code. The particulars contained in the information were that on the 2 February 2000 at
Mikuyuni Village in Gorashi Location within Malindi District of the Coast Province, he murdered
Ngumbao Kitao Dunda. He pleaded not guilty but after the trial, the learned Judge of the Superior Court
(Khaminwa J) found him guilty, convicted him and sentenced him to death according to law. He was not
satisfied with that conviction and sentence and moved it to this Court on appeal citing six grounds which
he filed in person. Later, he was represented by a firm of advocates namely, Oguk and Company and the
firm filed on his behalf supplementary memorandum of appeal in which four grounds were cited. For the
purposes of this judgment, we view the third ground of appeal in the supplementary memorandum of
appeal as important. It states:
“(3) That the learned trial Judge erred in law by failing to sum up the evidence to the Assessors and give
them proper directions as required in law before receiving their verdict. The trial was a nullity for
failure to comply with the laid down procedure.”

When the appeal came up before us for hearing, the learned Principal State counsel, Mr Ogoti conceded
the appeal on the ground that the learned trial Judge, after hearing the entire case did not sum up the case
to the assessors as she was required by law to do so. He submitted that, that omission amounted to a
mis-trial. He however sought a re-trial, stating that the prosecution would avail the witnesses for the
re-trial and that the evidence as can be viewed from the record would likely secure a conviction if a
re-trial was ordered. Mr Oguk, the learned counsel for the appellant while agreeing that the trial before
the Superior Court which resulted in the appellant being convicted was a nullity, nonetheless submitted
that a re-trial should not be ordered as the appellant has been deprived of his liberty now for close to
seven years from 9 February 2000 when he was arrested to the date of hearing this appeal.
Part IX of the Criminal Procedure Code deals with procedure in trials before the High Court. Sections
262 and 263 set out the mode of trial. They state as follows:
“(262) All trials before the High Court shall be with the aid of assessors.
(263) When the trial is to be held with the aid of assessors, the number of assessors shall be three.”

Section 322(1) states:

“When, in a case tried with Assessors, the case on both sides is closed, the Judge may sum up the evidence for
the prosecution and the defence, and shall then require each of the assessors to state his opinion orally, and
shall record that opinion.”

Although by its use of the word “may” the above provision gives the court the discretion to sum-up the
evidence to the assessors before requiring the assessors to state their opinions, by usage and case law,
summing-up to the assessors is no
Page 160 of [2007] 1 EA 157 (CAK)

longer a discretionary matter, for if the court requires the assessors to be of any use to it, the assessors
must make an informed opinion which they can only do upon the court summing-up the entire evidence
to them and at the same time directing them on issues of law; that the summing-up must not only be done
but must be seen to be done. Summing-up to the assessors has gained the force of law and is now a must.
In the case of Joseph Mwai Kungu v Republic criminal appeal number 68 of 1993 (UR) this Court stated
as follows:
“We would, for our part, now emphatically assert that the practice of summing-up to the assessors is a
thoroughly sound one and has been followed for so long that it has acquired the force of law. That is what this
Court, was saying in Lelei’s case and we would add that the practice is so well established that if a trial Judge
is to depart from it, then there must be some special and compelling reason for doing so.”

In other words, there must be on record evidence that summing-up to the assessors was undertaken or that
there was some special and compelling reason why that was not done.
In the record before us, the learned Judge after hearing the entire prosecution case and the statement
in defence by the appellant stated as follows:
“The summary of the evidence is this (sic) given to the assessors. The assessors are requested to give their
opinion.”

And the learned Judge proceeded to record each assessor’s opinion.

It is clear to us and we agree with both learned counsel, that there is no tangible evidence that the
learned Judge summed up the evidence that was before her to the assessors. There is no such written
summary in the record and no special or compelling reason has been given for failure to do so. That
being our view of the matter, we agree that the entire trial was a mistrial. We quash the conviction and
set aside the sentence.
The next matter to consider is whether to order a re-trial or not. Mr Ogoti is pressing for a re-trial
stating as we have stated earlier, that the witnesses would be readily available and thus the appellant
would not be prejudiced as the re-trial would not take a long time to be concluded. Mr Oguk, on the other
hand submits that the offence took place on 2 February 2000, the appellant was arrested on 9 February
2000 and since then has been either in custody awaiting trial or in prison awaiting the outcome of this
appeal, but either way he has been deprived of his liberty for all that time which is close to seven years.
He is opposing an order for retrial.
We have considered the record before us, the submissions by the learned counsel for the appellant and
the Principal State counsel as well as the law. This Court has in several decisions considered the same
question of when to and when not to order a re-trial. In the case of Pascal Ouma Ogolo v Republic
criminal appeal number 114 of 2006 (UR) it stated as follows:
“We have considered whether or not we should order retrial. The alleged offences were committed on 9
February 2000 and the appellant has already been in custody for 5 years. The main critical issues amongst
others at the hearing of the first appeal by the Superior Court were as by identification and recognition in the
circumstances in which the State Counsel and the court found out (sic) to be favourable for identification in
respect of the other appellants who were set at liberty. It may well prove impossible to trace the witnesses and
those that are traced may not have accurate memory of the details of the events. We agree with Mr Musau that
this is not a suitable case in which to order a retrial.”
Page 161 of [2007] 1 EA 157 (CAK)

In that case, it had been submitted on behalf of the state that the case was not suitable for re-trial because
even if re-trial was ordered, it would be futile as it was not certain that the relevant witnesses would be
traced to mount a successful retrial. In the case of Ahmed Sumar v Republic [1964] EA 481, the
predecessor to this Court stated at page 483 as follows:
“It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution
is to blame, the court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court
for which the prosecution is not to blame it does not, in our view follow that a re-trial should be ordered.”

It continued on the same page at paragraph 11 and stated further:

“We are also referred to the judgment in Pascal Clement Braganza v R [1957] EA 152. In this judgment the
Court accepted the principle that a re-trial should not be ordered unless the court was of the opinion that on a
consideration of the admissible or potentially admissible evidence, a conviction might result. Each case must
depend on the particular facts and circumstances of that case but an order for the re-trial should only be made
where the interests of justice require it and should not be ordered where it is likely to cause an injustice to an
accused person.”

Lastly, on the decisions of this Court, in the case of Bernard Lolimo Ekimat v R criminal appeal number
151 of 2004 (UR), this Court made what may appear to be a summary of the principles when it stated:
“There are many decisions on the question of what appropriate case would attract an order of re-trial but on
the main, the principle that has been acceptable to courts is that each case must depend on the particular facts
and circumstances of that case but an order for re-trial should only be made where interests of justice require
it.”

In this case before us, the learned Principal State counsel states that witnesses are not only traceable but
would be availed immediately on the order for retrial. The circumstances giving rise to the trial in the
Superior Court having being declared a mis-trial were occasioned by the error on the side of that Court.
A person lost his life and it is only proper that whoever could have been responsible be brought to book.
We do accept that the appellant has not enjoyed liberty for close to seven years but when this is
considered against the need for justice and the assurance of the Principal State counsel that witnesses are
going to be available for an early disposal of the retrial, what commends itself to us is an order for retrial.
Unlike in the case of Fundi Reuben Ngala v Republic criminal appeal number 268 of 2006 (UR), the
recorded evidence available might well sustain a conviction.
The totality of all the above is that we order a re-trial of the appellant before another competent court.
The appellant will be produced before the Superior Court at Malindi for his re-trial within the next
fourteen (14) days of the date hereof. That is the judgment of the Court.
For the appellant:
Mr Oguk
For the respondent:
Mr Ogoti

Kutima Investments Limited v Kihara and another

[2007] 1 EA 162 (CAK)
 Division: Court of Appeal of Kenya at Nairobi
Date of ruling: 8 December 2006
Case Number: 120/05
Before: Tunoi, Bosire and Deverell JJA
Sourced by: LawAfrica
Summarised by: D Kibanga

[1] Civil procedure – Stay of execution – Simultaneous stay – Whether Court of Appeal may issue a stay
of execution where stay has been granted by the High Court.

Editor’s Summary
This is an application under rule 5(2)(b) Court of Appeal Rules for stay of execution of the orders of
Justice Kihara Kariuki made on 26 April 2005. When the application came up for hearing, counsels for
the intended respondents raised a preliminary objection to the hearing on the ground that a similar
application had been filed in the Superior Court. Consequent upon which the intended appellant was
granted a stay of execution pending hearing and determination of the intended appeal, so that hearing the
instant application was an abuse of court process.
Held – The cited case of Madhupaper International Limited v Ken [1985] KLR 840 does not say that a
party may concurrently proceed with two similar applications one before the High Court and this Court.
The applicant already obtained the stay order to safeguard rights of intended appellant and to prevent
appeal if successful from being rendered nugatory. It will indeed be an abuse of the process of court to
insist on proceeding with this application.

Cases referred to in ruling

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Madhupaper International Limited v Ken [1985] KLR 840
Otieno v Ougo and another number 2 [1987] KLR 400

United Kingdom
Erinford Properties Limited v Cheshire County Council [1974] 2 All ER 448 Ch D

Ruling
Tunoi, Bosire and Deverell JJA: When this application under rule 5(2)(b) of the Court of Appeal Rules
(the Rules), came before us for hearing, Mr Kibe Mungai for Muthoni Kihara (first respondent), raised,
in limine, the question whether this Court should hear this motion when the orders prayed for had been
granted by the Superior Court on the application of the applicant herein. He was supported on this by Mr
Rotich for the second respondent.
Page 163 of [2007] 1 EA 162 (CAK)

It was common ground that after it filed this motion on 5 May 2005 seeking principally an injunction
under rule 5(2)(b) above, Kutima Investments Limited (“the applicant”) filed a similar application in the
Superior Court on 9 May 2005. Mr Raiji who with Mr Rachuonyo, appeared for the applicant explained
from the bar that the applicant did this when it was found that this Court could not hear this motion on a
priority basis. The Superior Court heard the applicant’s motion and on 19 September 2005, granted the
applicant the injunction it had sought in its application. Subsequently, a hearing date for this application
was fixed.
Mr Kibe Mungai argued that proceeding with this application will be an abuse of the process of the
Court arguing that the applicant having got what it wanted both the motion in the Superior Court and this
one became spent and this Court has nothing to hear. Mr Rotich, agreed and himself submitted that, in his
view, this motion is res judicata.
Mr Raiji did not agree. His view was that the applicant had a right to approach both the Superior
Court and this Court, as it did, for orders of injunction. He cited this Court’s decision in Madhupaper
International Limited v Ken [1985] KLR 840, in support. In our view, however, that case does not say
that a party may concurrently proceed with two similar applications, one before the High Court, and the
other before this Court. The court there, said:
“It is preferable for the High Court to deal with such an application, in any event, not so much as to protect
this Court from a sudden inconvenient dislocation of its lists but more because this Court would have the
distinct advantage of what the Judge made of it. The learned Judges of the High Court should take note of this
concurrent jurisdiction which the two courts have and exercise theirs.”

In Otieno v Ougo and another number 2 [1987] KLR 400 this Court held that the object of granting an
injunction pending an appeal is to safeguard the rights of the appellant and to prevent the appeal if
successful from being nugatory.
The applicant got such an order from the Superior Court on the principle which Megarry J
propounded in Erinford Properties Limited v Cheshire County Council [1974] 2 All ER 443, which was
cited with approval in Madhupaper International Limited case (supra). Megarry J there said:
“When a party is appealing, exercising his undoubted right of appeal, the court ought to see that the appeal if
successful is not nugatory.”

The applicant having obtained an order of injunction in the Superior Court, its rights were thus
safeguarded. Those orders are still in place. Those rights are safeguarded whether or not his Court adds
further orders for the same purpose. The general principle of law is that courts should not act in futility.
An order of this Court in favour of the applicant will not add anything, but Mr Raiji submitted that the
order the applicant obtained, though made after an inter partes hearing of an application for it, has been
challenged by the respondents and therefore, there is the possibility of it being set aside. Whether or not
that order will be set aside is not at the moment for us to say. What we are competent to say is that as the
position is at the moment, the Superior Court has exercised the jurisdiction, which it was perfectly
entitled to exercise, of granting the applicant an order.
Although ordinarily, that motion having been filed after this one, should have been stayed to await a
decision in this one, the decision is not rendered invalid for that reason alone, considering what we have
said that the Superior Court
Page 164 of [2007] 1 EA 162 (CAK)

Had the power to make the order. We agree that it will indeed be an abuse of the process of the Court
to insist on proceeding with this application. The court must protect its processes from abuse. It has the
jurisdiction to do so. The object underlying the principle of concurrent proceedings is to avoid recording
or issuing conflicting decisions or findings on the same issues. There is no guarantee that this Court will
come to the same conclusion as the Superior Court did in the application before it.
In the circumstances, we do not think that this motion should be heard. The order made by the
Superior Court is not interim. We were told that the court specifically stated that the order will remain in
force until the final determination of the applicant’s intended appeal. That being the case, no purpose will
be served not only by hearing this motion but also in leaving it pending. It should therefore be and it is
hereby ordered struck out. We, however, make no order as to costs, the respondents having not formally
applied to have the motion struck out.
For the applicant:
Mr Raiji and Mr Rachuonyo
For the respondent:
Information not available

Magezi v Multichoice Uganda Limited

[2007] 1 EA 164 (HCU)

Division: High Court of Uganda at Kampala

Date of judgment: 27 February 2006
Case Number: 281/04
Before: Sarach-Amoko JA
Sourced by: LawAfrica
Summarised by: E Ongoya

[1] Employment Law – Termination of an employment contract – Applicable law – Reasonable notice
required.

Editor’s Summary
The plaintiff was employed by the defendant as a Public Relations Officer in 2001. The letter did not
provide for termination or duration of termination notice. The defendant terminated the plaintiff’s
employment by letter dated 5 January 2005, giving her a 30 days notice. The plaintiff filed suit
contending that the termination was wrongful since she was a permanent employee.
Held – The right to terminate a contract by notice is basic to the employment relationship. The purpose
of the notice is to enable a party to sort out his/her affairs and to seek an alternative employment in the
case of an employee.
The right of a party to terminate a contract of employment arises in three main ways, namely:
(a) From express provision of the contract.
(b) Implied terms under the common law.
(c) Provisions of the statute.
Page 165 of [2007] 1 EA 164 (HCU)

At common law, in the absence of express stipulations, every contract of employment is determinable by
reasonable notice – Richardson v Koeford [1969] All ER 1264, and Elizabeth Imagara and others v
Attorney-General [1995] VI KALR 101 followed.
The one month termination notice given in this case was reasonable notice.
Suit dismissed with costs.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
EA Airways v Knight [1975] EA 174

United Kingdom
Elizabeth Imagara and others v Attorney-General [1995] VI KALR 101 – F
Richardson v Koeford [1969] All ER 1264 – F

Judgment
Sarach-Amoko JA: The plaintiff was employed by the defendant as a Public Relations Officer (PRO),
by a letter of appointment dated 3 May 2001. The letter did not provide for termination or duration of
termination notice.
The defendant terminated the plaintiff’s employment by a letter dated 5 January 2005, giving her a 30
days notice.
The plaintiff contends that the termination was wrongful since she was a permanent employee. She
consequently instituted these proceedings for judgment against the defendant for:
(a) UShs 48.6 million as payment in lieu of notice from February 2004 to February 2007 at a salary
scale of UShs 16.2 million per annum.
(b) US$ 1 350 being loss of medical benefits.
(c) Costs of the suit.
The defendant denied the claim and contended that the termination was lawful in that:
(i) she was not employed on a permanent basis;
(ii) she was given notice of termination;
(iii) she accepted her termination.
She is therefore not entitled to the reliefs claimed. At the commencement of the trial, both parties agreed
on the facts set out in the pleadings and opted to call no evidence.
 They agreed on two issues, namely:
(i) Whether or not the 30 days notice was adequate.
(ii) If not, quantum of damages.
Page 166 of [2007] 1 EA 164 (HCU)

In his opening submissions, counsel for the defendant pointed out that the plaintiff’s pleadings are at
variance with her submissions in that she pleaded in paragraph 7 that her contract was terminated without
any notice and yet the submissions are that the notice is inadequate. The court should for that reason
disregard her submissions and dismiss the suit as baseless.
Counsel for the plaintiff on his part contended that the pleadings showed in paragraph 2 of the
termination letter (annexure B) to the plaint, that the plaintiff was given 30 days notice. If there is any
variance, then it was a typing error and the court should ignore it.
I have perused that plaint and its annexure B as well as the submissions filed on behalf of the plaintiff.
While it is true that, the plaint indicates in paragraph 7 that she was not given any notice, paragraph 2 of
the said letter actually states that:
“In line with the company regulations manual, I hereby serve you 30 days notice of termination of our earlier
contract with you for the placing of Public Relations Officer of Multichoice Uganda Limited.”

The notice of the intention to sue (annexure C) also talks of 30 days notice. It was also on the basis of
these two documents that the first issue was framed as agreed. In the circumstances, I would not penalise
the plaintiff for this irregularity, since the evidence shows 30 days notice and the issues and submissions
of both parties were based on the 30 days notice.
As to whether the 30 days notice was adequate, counsel for the plaintiff submitted that it was
inadequate. He based his submissions on the common law.
Counsel for the defendant on his part submitted that the notice was adequate and he based his
submissions on the Employment Act Chapter 219 and the Judicature Act Chapter 123.
I have considered the submissions of both sides and have come to the following conclusion. The right
to terminate a contract by notice is basic to the employment relationship. The purpose of a notice is to
enable a party to sort his/her affairs and to seek an alternative employment, in the case of an employee.
The right of a party to terminate a contract of employment arises in three main ways, namely:
(1) from express provisions of the contract;
(2) from implied under common law;
(3) from the provisions of the statute.
In the instant case, the contract of employment made no such provision. It is therefore correct to assume
that the right exercised by the defendant in the instant case is either from the common law or the
provisions of the relevant statute, which is the Employment Act, in our case.
At common law, in the absence of express stipulations, every contract of employment is determinable
by reasonable notice. See Richardson v Koeford [1969] All ER 1264; Elizabeth Imagara and others v
Attorney-General [1995] VI KALR 101.
This common law rule of reasonable notice has to be applied however subject to the provisions of the
Employment Act. This is by virtue of section 14(2) of the Judicature Act (Chapter 132) which provides
that:
Page 167 of [2007] 1 EA 164 (HCU)
“14(2) Subject to the Constitution and this Act, the jurisdiction of the High Court shall be exercised:
(a) In conformity with the written law, including any law in force immediately before the
commencement of this Act,
(b) Subject to any written law, and in so far as the written law does not extend or apply in
conformity with;
(i) the common law and doctrines of equity;
(ii) any established and current custom or usage; and
(iii) any powers vested in, and the procedures and practice observed by the High Court
immediately before the commencement of this act in so far as any such jurisdiction is
consistent with the provisions of this Act; and
(c) Where no express law or rule is applicable to any matter in issue before the High Court in
conformity with the principles of justice, equity and good conscience.”

Section 14(2) of the Judicature Act, therefore sets down the hierarchy of laws applicable in the High
Court, which clearly shows that the common law would only apply, subject to any written law, including
the Employment Act.
Section 25 of the Employment Act specifically provides for notice in circumstances, such as the one
before Court. It provides as follows:
“25 Termination Notice:
(1) Subject to any agreement providing for a period of notice of longer duration, any contract of
service of indefinite duration, not being a contract falling within sections 12 and 14, may be
terminated by notice as provided in this section.
(2) The minimum period of notice to be given by an employer or employee shall be:
(a) One week if the service has lasted less than twelve months.
(b) Fifteen days if the service has lasted at least twelve months but less than three years.
(c) One month if the service has lasted at least three years but less than five years.
(d) Two months if the service has lasted at least five years but less than ten years.
(e) Three months if the service has lasted at least ten years.
(3) Notwithstanding sub-section (2) an employer or employee may, in lieu of notice, pay to the
other party a sum of money equivalent to wages of the days of the relevant notice.”

The plaintiff was employed from 3 May 2001 to 5 January 2004; that is about two years. Her
employment was for an indefinite period. She therefore falls squarely under the provisions of section
25(2)(b).
Ideally, the plaintiff was entitled to only 15 days notice, but the defendant gave her 30 days. In the
circumstances I find merit in the defendant’s submission that the 30 days notice was more than adequate.
On the other hand, I find no merit in the submission by counsel for the plaintiff that a three year
notice or payment in lieu was the one that was sufficient. This is because the common law does not apply
in light of the express provisions of the Employment Act.
Page 168 of [2007] 1 EA 164 (HCU)

Secondly, the common law rule is “reasonable notice”. A three year notice is not by any stretch of
imagination “reasonable”, even under the common law.
In the case of Kyobe v EA Airways [1972] EA 403, the Court of Appeal held that six months notice
was reasonable. He was appointed as General Manager of the defendant in August 1964. The contract
also contained no provision for termination. His post was abolished by the EA Corporation Act (Chapter
16), which came into force on the 1 December 1967.
In the case of EA Airways v Knight [1975] EA 174, the court held that notice of 18 months was
reasonable. He was appointed on 1 January 1965 and his employment was terminated on 30 June 1967.
In conclusion and for the reasons set down therein, I hold that the 30 days notice was adequate.
In view of my holding on the first issue, I find no reason to discuss the second issue of quantum. In
the result, I dismiss this suit with costs to the defendant.
For the appellant:
Information not available
For the respondent:
Information not available

Mangi v Republic
[2007] 1 EA 168 (CAK)

Division: Court of Appeal of Kenya at Mombasa

Date of judgment: 19 January 2007
Case Number: 259/06
Before: Omolo, O’kubasu and Githinji JJA
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Criminal law – Malice aforethought – Whether the accused ought to have known he deceased before
in order to establish malice aforethought.
[2] Criminal procedure – Defence of provocation – Definition of provocation.
[3] Criminal procedure – Duty of the court to convict and then sentence after hearing the accused.
[4] Criminal procedure – Whether the neighbour principle applicable in criminal suits.

Editor’s Summary
The appellant was charged and convicted for the offence of murdering the lover of his sister-in-law. The
appellant appealed on the grounds that the Judge erred in convicting him of murder without proper
finding that malice was established; that the Judge erred in failing to find that the deceased died as a
result of self-defence by the appellant and that he had been provoked.
Held – Since the appellant swore that he never stabbed the deceased, he could not be said to have
stabbed the deceased in self-defence.
Page 169 of [2007] 1 EA 168 (CAK)

On the issue of provocation as well, the appellant never said that he stabbed the deceased because he
had found the deceased in a compromising position with his brother’s wife.
The “who is my neighbour principle” applies to the civil law of negligence and cannot be imported to
the criminal principle of provocation. If the good neighbour kills the paramour of his sister-in-law and
wishes to rely on the defence of provocation, he must be able to show that he was in the immediate care
of the woman or in a conjugal, parental, filial or fraternal relation to the woman. The Judge was wrong to
hold that the defence of provocation was not available to the appellant because the appellant was not her
husband and in withdrawing it from the assessors. The definition of the term “provocation” only
“includes” the matters set out in the section; it does not exclude other circumstances and situations which
may arise in each particular case. (Donaghue v Stevenson [1932] All ER 1 distinguished).
There would have been no reason why the deceased would want to attack the appellant. The appellant,
on the other hand, would have a reason to attack the deceased because he was obviously found in
circumstances which would indicate to any reasonable person that the deceased was in an illicit
relationship with Chenda. Chenda said it was the appellant who produced the knife and stabbed the
deceased. But the appellant did not say how and why the deceased would stab himself on the chest
instead of stabbing the appellant. The stabbing was obviously inflicted with great force going through a
rib perforating the lung and severing the aorta. Lying on his back with the appellant sitting on top of him,
the court cannot comprehend how the deceased could have stabbed himself with such force and why he
would not stab the appellant, unless the deceased wanted to commit suicide at that stage.
Though the Court is entitled to re-evaluate and re-assess the recorded evidence and come to its own
conclusions, that requirement does not entitle an appeal court to upset a trial Judge’s findings on facts
unless there is some good reason for doing so. In the circumstances of this case, the court cannot find any
good reason for disagreeing with the learned trial Judge and the assessors, on their finding that it was the
appellant who produced a knife, followed the deceased out of the house and stabbed him with the knife
causing instant death.
Even if the defence of provocation was available to the appellant in the circumstances, one cannot go
armed in this way and after committing the crime claim that one was provoked. The prior arming himself
for war must deprive him of the defence of provocation. That being so, even though the learned trial
Judge was wrong in saying that the defence of provocation was not available to the appellant because he
was not the husband of Chenda yet that mis-direction did not occasion any injustice to the appellant
because had the learned Judge correctly directed himself and the assessors he would nevertheless have
come to the conclusion that the defence was not available to him because he went to the house of Chenda
armed with a knife. Add to that, the fact that the appellant did not claim that he had killed the deceased
because of provocation and it becomes clear that the defence was for rejection and was rightly rejected.
On the ground dealing with malice aforethought, it was not necessary for the appellant, to have known
who his victim was. In any case, Chenda told him the name of the deceased and the weapon used to
inflict the injury, the areas where the injury was inflicted and the force with which it was inflicted
Page 170 of [2007] 1 EA 168 (CAK)

would show any ordinary reasonable person that the appellant must have intended to kill the deceased
or at the very least to occasion to him grievous bodily injury.
In obiter – the Judge convicted the appellant and then straightaway passed the sentence of death without
complying with the provisions of section 324 of the Criminal Procedure Code. Those provisions give an
accused person the right to move a motion in arrest of judgment which in short really means that though
there is only one penalty for the offence of murder, namely death, yet an accused person may
nevertheless show that he or she ought not to be sentenced to death. A female accused convicted of
murder may show, under section 211 and 212 of the Penal Code that she is pregnant and therefore cannot
be sentenced to death. A person under the age of eighteen years may also show to the Judge that though
convicted of a capital charge, he or she is under the statutory age. Trial Judges should therefore record
the conviction separately and then hear the accused person first before passing the death sentence on him
or her. In the circumstances of this case however, there is nothing which could remotely indicate that the
sentence of death ought not to have been passed on him.
Appeal dismissed.

Case referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

United Kingdom
Donaghue v Stevenson [1932] All ER 1 – D

Judgment
Omolo, O’Kubasu and Githinji JJA: Following his trial and conviction on a charge of murder contrary
to section 203 as read with section 204 of the Penal Code, Kenga Foto Mangi, the appellant hereinafter,
appeals to this Court for the first time against the said conviction and the consequent sentence of death
imposed upon him. The appeal being a first one to the Court, the appellant is entitled to expect of us a
fresh re-evaluation and re-assessment of the evidence upon which he was convicted and sentenced. His
trial took place before Ouko Ag J as he then was, sitting with assessors at Malindi High Court. The three
assessors unanimously passed a verdict of guilty on the charge brought against the appellant. The
particulars contained in the information charging the appellant with murder were that on the 29 day of
May 2002 at Kaembeni Village, Mwahera Location of Kilifi District of the Coast Province, the appellant
murdered Ndunda Mutia Mbiti, hereinafter, the deceased.
From the recorded evidence, it is clear that the deceased was a lover of Chenda Kajeso, Chenda
(PW2). That lady was married with three children. Her husband, whose name was given by the appellant
as Jesu Mandi, was working and living in Mtwapa away from the homestead where the incident took
place. The deceased was a Mkamba working in the village and living in
Page 171 of [2007] 1 EA 168 (CAK)

the home of one Lewa. The appellant was a close relative of Chenda’s husband – in the words of Chenda
herself:
“ I know the accused. He is my brother-in-law. The deceased Ndunda Mbiti was my man-friend...”

It is pertinent to add that the deceased was living among the Mijikenda community, though he himself
was Mkamba by tribe.
The deceased visited Chenda on the evening of 29 May 2000 and at about 9pm they were eating their
evening meal when the appellant arrived. Chenda invited the appellant to join in the meal and he did so.
According to Chenda, after the meal and after washing his hands, the appellant asked Chenda:
“…about the gentleman sitting next to me. I told him he was called Ndunda. The accused got up, removed a
knife from his pocket and followed Ndunda when Ndunda saw the accused had risen he moved away, still in
the homestead, but the accused still followed Ndunda and stabbed him. Ndunda fell down. Looking at him I
found he had already passed away. Safari Charo came. He is my brother-in-law. Safari went to call the
sub-chief of Mwahera sub-location ...”

According to a neighbour Kahonzi Suleiman Charo (PW5) she heard Chenda screaming at about 11pm,
pleading that somebody should not be killed. On her way to the place where the screams were coming
from, she met Safari Charo Mandi (PW4) and they went to the scene of the screams. They found the
deceased had already passed away. The assistant chief was eventually called and when he (Alfred Safari
Deri – PW7) arrived at the scene, the appellant was still there and handed over to him a knife which
obviously had been used to stab the deceased. Dr Michael Peter Mwita (PW1) performed the
post-mortem examination on the body of the deceased on 7 June 2000 and the doctor found an external
wound on the third rib on the right hand side. The lung on that side of the body was perforated and there
was massive bleeding inside the right hand side of the chest. There was also damage to the aorta which
had been cut into two pieces and which also caused severe bleeding. The Doctor was of the opinion that
the immediate cause of death was massive internal bleeding due to the cut aorta and the perforated right
lung. The shape of the wound led the Doctor to the conclusion that the wound had been inflicted by the
use of a sharp object, namely a knife. According to the version of the prosecution, as narrated by Chenda
who was the only witness at the scene, when the deceased heard the appellant ask Chenda who the
deceased was, the deceased started to go away and actually walked out of the house. The appellant
produced a knife, followed the deceased and stabbed him to death. That was the basis for the charge of
murder.
The version given by the appellant in a sworn statement was, however, radically different from that of
Chenda. According to the appellant, while on his way from the mosque, he passed by the home of
Chenda’s husband whose name, he gave as Jesu Mandi and whom he said was his (appellant’s) relative.
At that home he found Chenda having dinner. We quote from the evidence of the appellant:
“ … I found his wife Chenda Kajeso having dinner. Under a mango tree there was a person sitting down with
the body covered with a sheet. I could not tell whether it was a man or a woman. I joined Chenda to eat dinner
– Chicken and Vegetable. When I finished the person who was sitting under a tree asked me why I had eaten.
I asked him who he was. A fight ensued between me and him. Chenda did not cry out for help. He wrestled
me to the ground. I turned him over and sat on his chest. At
Page 172 of [2007] 1 EA 168 (CAK)
this stage he removed a knife. In the course of struggling, while he was holding the knife near his chest, he
lamented that it was over. I took the knife from him. Chenda informed that (sic) the person we were fighting
with was her lover for the last 15 years. I took the sheet and the knife. I did not know what to do as the chief’s
camp is far …”

The appellant in the end added that there was moonlight on the night of the incident, that he did not have
a knife and he did not try to prepare for a fight with anyone that night. He also said he did not even know
the deceased.
The learned Judge having fully summed-up the case to the assessors, the three of them were
unanimous that the appellant was guilty of the charge of murder. In his judgment dated and delivered on
the 22 July 2004, the learned Judge agreed with the assessors, convicted the appellant and sentenced him
to death. He now appeals to the Court on the following six grounds, namely:
“(1) That the learned trial Judge erred in law and fact by convicting me, of murder c/section 203 as read
with section 204 of the PC (Penal Code) without proper finding that no malice was established.
(2) That the learned trial Judge erred in law and fact by failing to find that the death of the deceased came
as a result of self-defence when given that it was the deceased who attempted to stab me with the knife.
(3) That the learned trial Judge erred in law and fact and/or misdirected himself by holding that he did not
understand the relationship between me and PW2 while there is sufficient evidence to show that PW2
was my brother’s wife.
(4) That the learned trial Judge erred in law and fact by failing to find that the acts of the deceased abusing
me mounted to provocation which deprived me of myself control and forced by circumstances to fight
with him.
(5) That the learned trial Judge erred in law and fact by failing to consider the evidence of PW2 that the
deceased was befriending her.
(6) That the learned trial Judge erred in law and fact by failing to consider my defence against the
evidence of PW2.”

These are the grounds which Mr Adam Omar Hamza, learned counsel for the appellant, argued before us
and upon which he asked us to allow the appeal by the appellant, and quash the conviction recorded
against him. Mr Monda, the learned State counsel for the Republic, supported the conviction and asked
us to dismiss the appeal.
The grounds, as is apparent from a reading of them, are interconnected and leaving aside for the
moment the first ground which deals with malice aforethought, the others raise the issue of self-defence,
(ground two), provocation (grounds three and four) and whether Chenda (PW2) was a more credible
witness than himself (ground five).
Mr Hamza did not really say much on the issue of self-defence. It is true that the appellant said in his
evidence that he fought with the deceased and that the deceased knocked him down but that he turned the
deceased over and sat on his chest when the deceased produced a knife. But the appellant did not, as we
understand it and as the learned Judge and the assessors must have understood it, go so far as to say that
because the deceased produced a knife and he (appellant) feared the deceased would attack him with the
knife, he (appellant) took the knife from the deceased and stabbed the deceased. What is clear from his
statement which we have set out elsewhere in the judgment is that the deceased must have stabbed
himself using the knife. We once again quote what the appellant said in respect of the stabbing:
Page 173 of [2007] 1 EA 168 (CAK)
“...In the course of struggling, while he was holding the knife near his chest, he lamented that it was over. I
took the knife from him.”

What the appellant was saying was that while the deceased was holding the knife near his (deceased’s)
chest, the deceased somehow stabbed himself and it was only after the deceased had stabbed himself that
the appellant took away the knife from him. In those circumstances, even assuming that they were true,
we do not see how the appellant could be said to have stabbed the deceased in self-defence. He, himself
swore that he never stabbed the deceased.
On the issue of provocation as well, the appellant never said he stabbed the deceased because he had
found the deceased in a compromising position with Chenda who was his brother’s wife. On this aspect
of provocation, Mr Hamza went on a wild-goose chase and even asked us to apply the “who is my
neighbour principle” established in the United Kingdom by the case of Donoghue v Stevenson [1932] All
ER 1, decided way back in 1932. Mr Hamza submitted that among the Mijikenda communities, a man
finding the wife of his brother with another man in a compromising situation would be entitled to kill that
other man and raise the defence of provocation. In fact Mr Hamza went so far as to say that, that
proposition would apply to all African communities in Kenya and he only limited the application of his
proposition to the principle of the good neighbour as defined in the British case already cited, namely
“who, in law, is my neighbour?” and the answer provided by Lord Atkin to that question, namely...
“Persons who are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions which are called in
question.”

Apart from the fact that the principle in the case applies to the civil law of negligence, there is absolutely
no reason for us to import the principle to the criminal law principle of provocation. Section 208(1) of
the Penal Code clearly defines the scope of provocation – That section provides:
“The term “provocation” means and includes, except as herein stated, any wrongful act or insult of such a
nature as to be likely when done to an ordinary person or in the presence of an ordinary person to another
person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal
relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him
to commit an assault of the kind which the person charged committed upon the person by whom the act or
insult is done or offered.”

So there it is and there is no occasion for the Court to import into the matter the principle of a good
neighbour as Mr Hamza asked us to do. If the good neighbour kills the paramour of his sister-in-law and
wishes to rely on the defence of provocation, he must be able to show that he was in the immediate care
of the woman, or in a conjugal, parental, filial or fraternal relation to the woman. Ouko J thought that the
defence of provocation was not available to the appellant because the appellant was not the husband. We
do not think that the holding by the learned Judge was entirely correct and he was certainly wrong in
withdrawing it from the assessors on that basis. It is to be noted that the definition of the term
“provocation” only “includes” the matters set out in the section; it does not exclude other circumstances
and situations which may arise in each particular case.
But on the facts of the case before us, was that defence available to the appellant, in the first place?
As we have said in respect of self-defence, the appellant’s
Page 174 of [2007] 1 EA 168 (CAK)

case was not that he killed the deceased because he was provoked by finding the deceased in a
compromising position with his brother’s wife (“Chenda”). What he (appellant) said was that the
deceased had carried a knife with him and stabbed himself to death during the struggle between them.
Was that contention correct? We must now analyse the respective evidence of Chenda (PW2) alongside
that of the appellant. As we have seen, Chenda said the deceased was with her in the house and they were
having dinner. The appellant then joined them and after eating the appellant demanded to know who the
deceased was. The deceased got up and started to walk away and the appellant produced a knife and
followed him. Chenda must have raised an alarm because Kahonzi Suleiman Charo (PW5) heard Chenda
screaming and saying that somebody should not be killed. Moreover, there would have been no reason
why the deceased would want to attack the appellant. The appellant, on the other hand, would have a
reason to attack the deceased because he (deceased) was obviously found in circumstances which would
indicate to any reasonable person that the deceased was in an illicit relationship with Chenda. Chenda
said that it was the appellant who produced the knife and stabbed the deceased. The appellant said that it
was the deceased who produced the knife and stabbed himself. But the appellant did not say how and
why the deceased would stab himself on the chest instead of stabbing the appellant. The stabbing was
obviously inflicted with great force going through a rib, perforating the lung and severing the aorta.
Lying on his back with the appellant sitting on top of him, we cannot comprehend how the deceased
could have stabbed himself with such force and why he would not stab the appellant, unless the deceased
wanted to commit suicide at that stage. The learned Judge and the assessors agreed with Chenda that it
was the appellant who produced the knife and that it was him who stabbed the deceased. Those are the
findings of the facts and though the court is entitled to re-evaluate and re-assess the recorded evidence,
and come to its own conclusions, that requirement does not entitle an appeal court to upset a trial Judge’s
findings on facts unless there is some good reason for doing so. In the circumstances of this case, we can
find no good reason for disagreeing with the learned trial Judge and the assessors on their finding that it
was the appellant who produced a knife, followed the deceased out of the house and stabbed him with the
knife, causing his instant death. We agree with the learned trial Judge on this aspect of the matter. Mr
Hamza went so far as to submit that the evidence of Chenda ought not to have been believed because
though she was a married woman with three children, yet she was a self-confessed adulteress and by that
very fact must be untrustworthy. We would be very reluctant to introduce such a novel principle in our
law, namely that a party who confesses to have committed adultery is untrustworthy and his or her
evidence must, because of that fact be rejected. If that were the legal position, we suspect that very few
men would be found whose evidence would be credible. We reject the proposition.
That conclusion shows that the appellant went to the house of Chenda armed with a knife which he
was prepared to use and did use with fatal consequences. Even if the defence of provocation was
available to him in the circumstances, one cannot go armed in this way, and after committing the crime
claim that one was provoked. The prior arming himself for war must deprive him of the defence of
provocation. That being so, even though the learned Judge was wrong in saying that the defence of
provocation was not available to the appellant because he was not the husband of Chenda, yet that
mis-direction did not occasion any injustice to the appellant because had the learned Judge correctly
directed himself and the assessors, he would nevertheless have come to the conclusion that the defence
was not available to him because he, ie the
Page 175 of [2007] 1 EA 168 (CAK)

appellant, went to the house of Chenda armed with a knife. Add to that the fact that the appellant did not
claim that he had killed the deceased because of provocation and it becomes clear that that defence was
for rejection and was rightly rejected.
On ground one dealing with malice aforethought, Mr Hamza stressed the fact that the appellant did
not even know the deceased. It was not necessary that the appellant should have known who his victim
was. In any case Chenda told him the name of the deceased and the weapon used to inflict the injury, the
area where the injury was inflicted and the force with which it was inflicted, would show any ordinary
reasonable person that the appellant must have intended to kill the deceased or at the very least to
occasion to him grievous bodily injury. That is malice aforethought in terms of section 206(a) or even
206(b) of the Penal Code. On our own independent assessment of the recorded word, we are fully
satisfied, as were the learned trial Judge and the assessors, that the charge of murder against the appellant
was proved beyond any reasonable doubt and that he was rightly convicted of that charge. His appeal
against the conviction and sentence must accordingly fail.
Before we leave the appeal, there is some matter which we must point out to the trial Judges dealing
with capital offences. The Judges, as the learned Judge herein did, convict and then straightaway pass the
sentence of death without complying with the provisions of section 324 of the Criminal Procedure Code.
Those provisions give an accused person the right to move a motion in arrest of judgment which in short
really means that though there is only one penalty for the offence of murder, namely death, yet an
accused person may nevertheless show that he or she ought not to be sentenced to death. A female
accused convicted of murder may show, under sections 211 and 212 of the Penal Code that she is
pregnant and therefore cannot be sentenced to death. A person under the age of eighteen years may also
show to the Judge that though convicted of a capital charge, he or she is under the statutory age. We
would, accordingly direct trial Judges that they record the conviction separately and then hear the
accused person first before passing the death sentence on him or her.
In the circumstances of the case before us, however, there is nothing which would remotely indicate to
us that the sentence of death ought not to have been passed on him. We accordingly dismiss his appeal
against the conviction and sentence.
For the appellant:
Mr Adam Omar Hamza
For the respondent:
Mr Monda

Mariba v Mariba and another

[2007] 1 EA 175 (CAK)

Division: Court of Appeal of Kenya at Nairobi

Date of judgment: 2 February 2007
Case Number: 188/02
Before: Tunoi, Bosire and Deverell JJA
 Before: Tunoi, Bosire and Deverell JJA
Sourced by: LawAfrica
Summarised by: E Ongoya

[1] Land – Adverse possession – Acquisition of title in land by adverse possession – Procedure –
Whether commencing proceedings by way of plaint is fatal.
Page 176 of [2007] 1 EA 175 (CAK)

Editor’s Summary
The suit related to a parcel of land known as Kiganjo/Kiganjo/110. Before the advent of land
adjudication, the original owner of the land was one Gachoka Kaguru. The said Gachoka Kaguru had
many sons, among them, Mbiri Gachoka and Daniel Gachoka. Mbiri Gachoka died in or about 1935 and
his wife Margaret Magiri and her children, including the first respondent were then absorbed into Daniel
Gachoka’s household after Margaret was inherited as a wife. On registration that land belonging to Mbiri
Gachoka and inherited from Gachoka Kaguru was incorporated in the suit land, Kiganjo/Kiganjo/110 and
registered in the name of Daniel Gachoka. Kibe Mariba was the son of Margaret and came in this suit as
a personal representative of the estate of the said Margaret in which it was claimed that Margaret
together with her three sons and two daughters had been in exclusive occupation of approximately one
half of the suit land and plot number 31 Kiganjo market openly without force and as of right since 1935.
The Superior Court found for the respondent hence this appeal.
Held – It is the duty of the first Appellate Court to treat the evidence and material tended before the trial
court to a fresh and exhaustive scrutiny and draw its own conclusions bearing in mind that it has not seen
or heard the witnesses and giving due allowance for that. Selle v Associated Motor Boat Company
Limited [1968] EA 123 followed.
It is not fatal to commence proceedings for adverse possession by way of plaint as opposed to the
originating summons.
Appeal dismissed with costs.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Bhari v Khan [1965] EA 94
John Ndungu Ngether v Patrick Murima and another Nairobi civil case number 143 of 1998 (UR)
Kenya Commercial Bank v James Osebe [1982-1988] 1 KAR 48
Kibutiri v Kibutiri [1982-1988] 1 KAR 60
Mucheru v Mucheru [2000] 2 EA 455
Selle v Associated Motor Boat Company Limited [1968] EA 123 – F

Judgment
Tunoi, Bosire and Deverell JJA: This is an appeal by the second defendant, now the appellant, from the
judgment and decree of the Superior Court (Honourable Ransley, Commissioner of Assize) given on 23
January 2002, whereby the learned Commissioner of Assize entered judgment for the plaintiff, the first
respondent, declaring him, inter alia, to have obtained title to half share of the suit land known as
Kiganjo/Kiganjo/110 by adverse possession.
Page 177 of [2007] 1 EA 175 (CAK)

The facts in the case may be stated thus. Before the advent of land adjudication and registration in
Kiganjo the original owner of the suit land was one Gachoka Kaguku who had several sons, among them
Mbiri Gachoka and Daniel Gachoka. It is the plaintiff’s case that Mbiri Gachoka died in or about 1935
and his wife Margaret Magiri and her children, including the first respondent Kibe Mariba, were then
absorbed into Daniel Gachoka’s household after Margaret was inherited as a wife. It is also the plaintiff’s
case that on registration the land belonging to Mbiri Gachoka and inherited from Gachoka Kaguku was
incorporated in the suit land ie Kiganjo/Kiganjo/110 and registered in the name of Daniel Gachoka to
hold the same in trust for Margaret and all her children.
It is on record that Margaret first sued Daniel Gachoka over the suit land in High Court civil case
1046 of 1979 but the latter died soon thereafter on 27 March 1982 before the suit was heard and
determined. The suit was subsequently on 10 June 1983 marked as having abated under Order XXIII, rule
4 of the Civil Procedure Rules. The suit, the subject matter of this appeal, was filed in 1989 but, also,
Margaret died during its pendency and her son Kibe Mariba was substituted as her personal
representative. The second defendant and the Public Trustee have been sued on behalf of the estate of
Daniel Gachoka.
The plaintiff avers that she together with her three sons and two daughters have been in exclusive
occupation of approximately one half of the suit land and plot number 31 Kiganjo Market openly without
force and as of right since 1935.
The plaintiff, therefore, claimed in the plaint, inter alia:
“(a) A declaration that Daniel Wainaina Gachoka (deceased) holds the suit land namely
Kiganjo/Kiganjo/110 in trust for Margaret and her children;
(b) An order directing the defendants to effect legal transfer of the suit land to the plaintiff;
and
(c) Alternatively an order that the plaintiff has obtained a title to half share in Kiganjo/Kiganjo/110 and
the whole of plot 31 Kiganjo Market by adverse possession.”

The Public Trustee and the second defendant filed separate written statements of defence but in essence
they traversed seriatim all the allegations made by the plaintiff in his plaint especially that the plaintiff
and other children of Mbiri Gachoka were entitled to inherit any portion of the suit land or that they have
been in occupation of the suit land at all.
Evidence was led before the Superior Court by both sides and the learned Judge in a reserved
judgment held:
“I accept that on the death of Margaret’s husband she was absorbed into the family of Daniel Wainaina
Gachoka and that they all lived together as one family. When land demarcation took place in 1962, title to the
land was given to Daniel Wainaina Gachoka. This, however, did not mean that Margaret’s family were
dispossessed or became tenants on the land. They continued to live there as part of communal family.
However, it is clear that the second defendant since his father’s death had been opposed to the occupation by
the plaintiff of the land and as he said, in his view they took the land by force in 1978 after his father’s death.
Page 178 of [2007] 1 EA 175 (CAK)
I do not find any evidence of a tenancy as alleged in paragraph 5 of the plaint but hold that the plaintiff’s
occupation of the land has been adverse to the defendant’s (sic) title and therefore grant prayer so far as
Kiganjo/Kiganjo/110 is concerned.”

Being dissatisfied with the decision of the learned Judge, the second defendant has now preferred this
appeal, the main thrust of the attack being firstly, that there was no basis for the Honourable
Commissioner of Assize to hold that the plaintiff and his siblings had acquired a portion of the suit land
by way of adverse possession while there was no evidence to support that proposition and contrary to the
established legal principles governing the acquisition of title to land by way of adverse possession;
secondly, that the Superior Court erred in holding Margaret Magiri as having been absorbed in Daniel
Gachoka’s household in the absence of any credible evidence; and thirdly, that there was no evidence of
trust over the suit land in favour of Margaret and her children.
As a first Appellate Court, it is our duty to treat the evidence and material tendered before the
Superior Court to a fresh and exhaustive scrutiny and draw our own conclusions, bearing in mind that we
have not seen or heard the witnesses and giving due allowance for this. Selle v Associated Motor Boat
Company Limited [1968] EA 123. With this principle in mind we will now deal with the appeal.
Again, probably, in our view, the best approach to the pertinent issues in the appeal is first to find out
how the disputing parties live on the suit land.
Following a report commissioned by the Superior Court before the trial began, the following salient
facts were accepted by both parties as correct:
(i) Both the children of Margaret Magiri and Daniel Gachoka occupy the suit land but there are no
fixed boundaries between their respective portions.
(ii) Both parties – Margaret’s and Daniel Gachoka’s households, occupy almost equal portions of the
suit land.
(iii) Both parties have been treating the suit land as a family property.
Further to the above indisputable facts, it is also manifestly clear from the evidence that Kibe Mariba, the
first respondent who was aged 60 years when he testified, had been together with his mother, brothers
and sisters on half of the suit land uninterrupted since 1962 and his entire family had known no other
piece of land.
There is credible evidence, also, that Margaret Magiri had been “inherited” or absorbed into the
family of Daniel Gachoka as a wife; and, as the learned Commissioner of Assize found, her children
became the children of Daniel Gachoka and since Daniel Gachoka had another wife and children, we
think that the learned Commissioner of Assize correctly held that on his demise the two households were
entitled to inherit the suit land in equal proportions.
In the result, the second and third grounds of appeal have no merit and we reject them.
Mr Kigotho for the second defendant has further submitted in the main that the claim by way of
adverse possession not having been brought by an originating summons as is mandatorily required by
Order XXXVI, rule 3D of the Civil Procedure Rules ought not to have been allowed and to buttress his
submission he referred us to the decision in John Ndungu Ngether v Patrick Murima and another Nairobi
civil case number 143 of 1998 (UR) in which this Court held:
Page 179 of [2007] 1 EA 175 (CAK)
“But, perhaps more importantly, the claim by way of adverse possession not having been brought by way of
an originating summons it cannot succeed.”

However, this Court in Mucheru v Mucheru [2000] 2 EA 455 said that the procedure by originating
summons is intended to enable simple matters to be dealt with in a quick and summary manner. In saying
so, it relied on the decisions in Bhari v Khan [1965] EA 94, Kibutiri v Kibutiri [1982–1988] 1 KAR 60
and Kenya Commercial Bank v James Osebe [1982–1988] 1 KAR 48. The Court also referred to the
judgment of Sir Ralph Windham CJ in Salehmohamed Mohamed Vph Saldanha 3, Kenya Supreme Court
(Mombasa) civil case number 243 of 1953 (UR), where the scope and general purpose of procedure by
way of originating summons were being considered. His Lordship said:
“Such procedure is primarily designed for the summary and ‘ad hoc’ determination of points of law or
construction or of certain questions of fact, or for the obtaining of specific directions of the court, such as
trustees, administrators, or (as here) the court’s own execution officers. That dispatch is an object of the
proceedings is shown by Order XXXVI, which provides that they shall be listed as soon as possible and be
heard in chambers unless adjourned by a Judge into court.”

While it is true that the suit was commenced by plaint instead of by the procedure of originating
summons, we do not consider the error to be fatal in view of the provisions of Order XXXVI, rule 10 of
the Civil Procedure Rules. That provision requires the trial court in an appropriate case, to continue
proceedings commenced by originating summons as though the same had been begun by plaint.
The dispute between the parties also involved plot number 31 Kiganjo Market. It appears from the
record that the Honourable Commissioner of Assize heard evidence on the suit land and wrote the
judgment now the subject of the appeal. However, he directed the parties to produce further evidence on
the title after which he would make further orders. The hearing concerning the dispute over the market
plot commenced on 17 April 2003 and judgment was delivered on 14 May 2003. The plaintiff’s claim
over the market plot was dismissed and we have not been shown whether or not the plaintiff preferred an
appeal. We think that since the market plot is not the subject of the appeal now before us we should say
nothing more on it.
In our view, the course adopted by the learned Honourable Commissioner of Assize in dividing the
hearing of the suit into two portions and thereafter taking evidence on each issue and writing separate
judgments thereof is quite unnecessary and amounts to wasting precious judicial time. We deprecate it.
We are, however, satisfied that the procedure did not cause any discernible prejudice to the defendants.
All in all, the learned Honourable Commissioner of Assize reached a correct decision on the evidence
presented before him and he cannot be faulted.
Accordingly and, for the reasons above stated, the appeal is dismissed with costs.
For the appellant:
Information not available
For the second respondent:
Mr Kigotho

Mashimba v Republic
 [2007] 1 EA 180 (CAT)

Division: Court of Appeal of Tanzania at Mwanza

Date of judgment: 16 July 2004
Case Number: 86/02
Before: Ramadhani, Munuo and Msoffe JA
Sourced by: LawAfrica
Summarised by: H Majamba

[1] Criminal law – Sentencing – Accused convicted on his own plea of guilty of murdering his spouse –
Sentenced to 20 years imprisonment after serving one and a half years – Whether the sentence was too
excessive.

Editor’s Summary
The appellant, a first offender, pleaded guilty to the offence of manslaughter. He had caused the death of
his spouse by inflicting severe wounds on her neck, thighs and lower limbs. He also burned her private
parts. The appellant had found his wife in an adulterous act. The trial Judge sentenced him to a term of
twenty years imprisonment. He was aggrieved and lodged an appeal.
Held – The trial Judge overlooked the fact that the appellant was outrageously provoked by the conduct
of his infidel spouse and that he saved the time and expenses by pleading guilty over and above showing
repentance for the unlawful act of killing his spouse. The Court found that the sentence imposed by the
trial Judge was manifestly excessive and reduced it to five years.
Appeal allowed.

Case referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Silvanus Leonard Nguruwe v Republic [1981] TLR 66 – A

Judgment
Munuo JA: The appellant, Charles Mashimba, through the services of Mr Muna, learned advocate, is
appealing against the sentence in Criminal Sessions case number 156 of 2001 in the High Court of
Tanzania at Tabora, before Lukelelwa J. In that case the appellant pleaded guilty to the offence of
manslaughter c/s 195 of the Penal Code, Chapter 16 of the Revised Laws of Tanzania. Upon conviction
on his plea of guilty, the learned Judge sentenced him to a term of twenty years’ imprisonment.
Aggrieved, the appellant lodged the present appeal against the sentence.
In his single ground of appeal, Mr Muna, learned advocate, complained:
“That the sentence of twenty (20) years’ imprisonment was excessive regard being had to the circumstances
under which the offence was committed.”
Page 181 of [2007] 1 EA 180 (CAT)

Contending that the sentence of twenty years imprisonment was manifestly excessive, counsel for the
appellant faulted the learned trial Judge for not considering the fact that the appellant was a first time
offender and that he had been in custody for about one and a half years, and furthermore that he had
pleaded guilty to the offence thereby showing contrition. Had the learned Judge considered all these
factors and judiciously exercised his discretion, Mr Muna contended, he would have imposed a lenient
sentence on the appellant. Stressing that the appellant had admitted the killing before the police, a Justice
of the Peace and the learned Judge, which admissions saved time and costs on the part of the law
enforcers and the court, over and above showing contrition for the offence, Mr Muna urged us to reduce
the sentence and give the appellant a fair sentence.
Mr Mwampoma, learned State attorney, supported the sentence meted out by the High Court on the
ground that it was lawful and adequate. He argued that the learned Judge did not invoke a wrong
principle, so we should refrain from interfering with the sentence. The learned State Attorney observed
that the sentence was not excessive because the learned Judge considered the multiple cut-wounds and
fire-brand burning of the deceased’s private parts by the appellant, which aggravating factors caused the
learned Judge to impose a stiff sentence of twenty years’ imprisonment. Mr Mwampoma urged us to
dismiss the appeal in its entirety.
The issue is whether there is cause to interfere with the sentence imposed on the appellant by the
learned Judge.
We had the advantage of referring to a Handbook on Sentencing with a particular reference to
Tanzania by Brian Slattery at page 14 where the learned author comments on sentencing by stating:
“The grounds on which an appeal court will alter a sentence are relatively few, but are actually more
numerous than is generally realised or stated in the cases. Perhaps the most common ground is that a sentence
is ‘manifestly excessive’, or as it is sometimes put, so excessive as to shock. It should be emphasised that
‘manifestly’ is not mere decoration, and a court will not alter a sentence on appeal simply because it thinks it
severe. A closely related ground is when a sentence is ‘manifestly inadequate.’ A sentence will also be
overturned when it is based upon a wrong principle of sentencing... An appeal court will also alter a sentence
when the trial court overlooked a material factor, such as that the accused is a first offender, or that he has
committed the offence while under the influence of drink. In the same way, it will quash a sentence which has
obviously been based on irrelevant considerations ... Finally an appeal court will alter a sentence which is
plainly illegal, as when corporal punishment is imposed for the offence of receiving stolen property.”

The record shows that the learned Judge found the appellant’s infliction of 6–7 cut-wounds on the neck,
thighs and lower limbs and the burning of her private parts “very brutal indeed” which was why he
imposed a twenty year imprisonment sentence on the appellant. The learned Judge also admonished
victims of infidel spouses to exercise emotional restraint when they encounter adultery instead of taking
the law into their own hands as the appellant did by killing his adulterous spouse.
All in all, we think that the learned Judge overlooked the fact that the appellant was outrageously
provoked by the misconduct of his infidel spouse, and, or that the appellant had saved time and expense
by pleading guilty over and above showing contrition for the unlawful killing of his spouse.
Page 182 of [2007] 1 EA 180 (CAT)

We find support in the case of Silvanus Leonard Nguruwe v Republic [1981] TLR 66 in which the
Court of Appeal of Tanzania held that:
“Before the Court can interfere with the trial High Court’s sentence, it must be satisfied either that, the
sentence imposed was manifestly excessive, or that the trial Judge in passing the sentence ignored to consider
an important matter or circumstances which he ought to have considered, or that the sentence imposed was
wrong in principle.”

We have already observed that the trial Judge overlooked the fact that the appellant was gravely
provoked by the adulterous conduct of his late wife and that he also ought to have considered the fact that
the appellant was a first offender who deserved some leniency particularly because he pleaded guilty to
the offence of manslaughter and by so doing saved the court’s time and expense of conducting a full trial.
For the reasons stated above, we reduce the manifestly excessive sentence of twenty years’
imprisonment to five years’ imprisonment which shall take effect from today. We accordingly allow the
appeal.
For the appellant:
Mr Muna
For the respondent:
Mr Mwampoma

Mbabali v Electoral Commission

[2007] 1 EA 182 (CAU)

Division: Court of Appeal of Uganda at Kampala

Date of judgment: 24 January 2007
Case Number: 3/06
Before: Okello, Bahigeine and Engwau JA
Sourced by: LawAfrica
Summarised by: E Dimba

[1] Election petition – Notice of presentation of petition – Failure of service of notice – Whether failure
fatal to whole petition – Section 62 – Parliamentary Elections Act – Rules 6(1) and (3) – Parliamentary
Elections (Election Petition) Rules 1996.

Editor’s Summary
The Electoral Commission, the respondent herein organised and conducted parliamentary elections that
were held on 23 February 2006. Honorable Edward Kiwanuka Ssekandi was declared the winner of a
parliamentary constituency whereupon the respondent gazetted the results to that effect. The appellant,
one of the contestants was aggrieved by the results whereupon he filed an election petition (“the
petition”) seeking to nullify the election of Honorable Ssekandi, the first respondent therein.
Notice of presentation of the petition accompanied by a copy of the petition was served upon the
respondent as required by law. The respondent filed an application seeking the dismissal of the petition
on grounds that service of the notice of presentation of the petition accompanied by a copy of the petition
was not served upon Honourable Ssekandi thereby rendering the petition a nullity.
Page 183 of [2007] 1 EA 182 (CAU)

The application was allowed whereupon the petition was dismissed with costs whereupon the
appellant lodged an appeal. A cross-appeal challenging the failure of the trial Judge to discuss the entire
petition was also lodged.
Held – Section 62 of the Parliamentary Elections Act and Rule 6(1) of the Parliamentary Elections
(Election Petition) Rules 1996, enjoin a petitioner or his/her advocate within seven (7) days after filing a
petition to serve each respondent a notice in writing of the presentation of the petition accompanied by a
copy of the petition. The requirement of service is a statutory one.
Being a matter of law, failure to comply with requirement of service goes to the root of the case and is
fatal to the petition as a whole (Besweri Lubuye Kibuka v Electoral Commission and Daniel Kikoola
EPA number 2 of 1999 applied).
A party is entitled to apply to court to have a point of law argued before the trial of the main case, if
the objection is one which would dispose of the whole action (Independent Automatic Sales Limited v
Knowles and Foster [1962] 1 WLR 974 adopted).
Failure to serve the winning candidate, if proved, is fatal to the whole petition.
The respondent as a party to the petition had locus standi to apply to Court to hear and determine the
question whether the winning candidate was served so that the determination could dispose of the whole
petition.
Rule 6(3) of the Parliamentary Elections (Election Petitions) Rules prescribes for personal service in
election petitions. When that fails, within three (3) days an order for substituted service has to be sought
from court. Personal service has not been defined by the Parliamentary Elections (Election Petitions)
Rules, however personal service is the service of a document in litigation effected by leaving a copy of
the document with the person to the service. It is often wrongly supposed that it is necessary to touch the
person to be served with the document but it is in fact sufficient to have it in his presence having
informed him of its nature. Most documents required to be served personally can now be served by post.
The requirement of personal service would be met by leaving a copy of the document to be served in
the presence of the person to be served after informing him of the nature of the document.
Leaving a copy of the document to be served at the place advised by the person to be served meets the
requirements of personal service.
Under section 103 of the Evidence Act (Chapter 6), a person who wishes to believe in the existence of
a particular fact bears the burden to prove it unless the law provides otherwise. The appellant had the
burden to prove that Honourable Ssekandi instructed on where to leave the document to be served on
him. The appellant failed to discharge that duty. The trial Judge was justified to find on the evidence
available that Honourable Ssekandi had not been served as required by law.
Appeal dismissed cross-appeal allowed.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA”
Page 184 of [2007] 1 EA 182 (CAU)
means disapproved; “DT” means doubted; “E” means explained; “F” means followed; “O” means
overruled)

East Africa
Besweri Lubuye Kibuka v Electoral Commission and Daniel Kikoola EPA number 2 of 1999 – AP
Omondi v Bank of Kenya Limited and others

United Kingdom
Craig v Kanssen [1943] 1 KB 256
Dymond v Croft 3 ChD 512
Independent Automatic Sales Limited v Knowles and Foster [1962] 1 WLR 974 – A
Kistler v Tetner [1905] 1 KB 45
Makula International Ltd v Nsubuga and another [1982] HCB 11

Others
John Patrick Balidowa v Ziritwawula EPA number 3 of 1998
Tarzan Mighty v Michael Wilson and Oneil Marshall [1999] Common CL of M188 Supreme Court of
Jamaica

Judgment
Okello JA: This appeal is against the decision of the High Court dated 16 August 2006 at Masaka in
miscellaneous application number 53 of 2006 arising from Election Petition number 0018 of 2006.
The background facts leading, to this appeal are briefly that the Electoral Commission (EC) had
organised and conducted Parliamentary General Elections that were held in this country on 23 February
2006. Honourable Edward Kiwanuka Ssekandi was declared the winner of Bukoto Central Parliamentary
Constituency in Masaka District. The Electoral Commission gazetted the results to that effect.
Mr Mbabali Jude, the appellant, who was one of the contestants, was aggrieved by the results and
filed in the High Court at Masaka, Election Petition number 0018 of 2006 seeking amongst others to
nullify the election of Honourable Ssekandi. In that petition, Honourable EK Ssekandi as the winning
candidate was the first respondent. The Electoral Commission was the second respondent.
Notice of presentation of the petition accompanied by a copy of the petition was served on the
Electoral Commission as required by law. There is a dispute as to whether a similar service was effected
on Honourable EK Ssekandi. This is the major issue of contention in this appeal.
While the petition was awaiting fixture for hearing, the Electoral Commission filed miscellaneous
application number 53 of 2006 seeking the dismissal of Election Petition number 0018 of 2006. The
major ground of the application was that service of the notice of presentation of the petition accompanied
by a copy of the petition was not served on Honourable EK Ssekandi, the winning candidate and a
statutory respondent as required by law. That the failure rendered the petition a nullity.
Page 185 of [2007] 1 EA 182 (CAU)

Mugambwa J heard the application. In his ruling which he delivered on 16 August 2006, the learned
Judge allowed the application and dismissed Election Petition number 0018 of 2006 as against
Honourable Ssekandi with costs, hence this appeal. There is also a cross-appeal challenging the failure of
the trial Judge to discuss the entire petition including against the Electoral Commission as well. There are
four grounds of the main appeal as follows:
(1) That the trial Judge erred in law and in fact in holding that Honourable Edward Ssekandi was not
served with the petition.
(2) That the trial Judge erred in law and in fact in holding non-service of the petition on Honourable
Edward Ssekandi was a matter of law and an illegality.
(3) That the trial Judge erred in law when he failed to consider the issue of the respondent’s locus
standi in miscellaneous application number 53 of 2006.
(4) That the trial Judge erred in law and in fact in evaluating the evidence on record and as such came
to a wrong conclusion that Honourable Edward Ssekandi was not served with the petition.
The sole ground of the cross-appeal is couched as follows:
(1) The learned trial Judge erred in failing to dismiss the entire petition as against the second
respondent for lack of service on the winning candidate, the first respondent, in Election Petition
number 0018 of 2006
Messrs Lubega Medad with Katumba represented the appellant while Mr Kiryowa Kiwanuka appeared
for the respondent. Mr Lubega argued the above grounds in this order: ground three, grounds one, four
and ground two. I propose to consider those grounds in the order adopted by Mr Lubega.
Ground three
This ground addresses the issue whether the Electoral Commission had locus standi to file the
application seeking to dismiss the High Court Masaka Election Petition number 0018 of 2006 on the
ground of non-service of the notice of presentation of the petition with a copy of the petition on the
winning candidate.
Mr Lubega contended in the lower court as he did before us that the Electoral Commission did not
have locus standi either to file the application on behalf of the winning candidate as it had no instruction
to do so or to file the application on its own behalf because it had no instruction to do so or to file the
application on its own behalf because it had no grievance at all. He pointed out that locus standi was a
matter of law. Without it one cannot bring any case before a court of law. He stated that the trial Judge
relied on Makula International Ltd v His Cardinal Nsubuga and another [1982] HCB 11 to find that
non-service was an illegality. Learned counsel submitted that illegality, itself must be brought to the
attention of the court by a person who has locus standi to do so and in a proper procedure. He argued that
the method of bringing an illegality to the attention of the court must not itself be tainted with illegality.
A litigant must not whisper to the court through the window like Honourable Ssekandi did. He cited the
Kenyan case of Omondi v Bank of Kenya Limited and others as his authority for that proposition.
Page 186 of [2007] 1 EA 182 (CAU)

According to him, the question of locus standi was raised as a preliminary objection at the beginning of
the hearing of the application but the trial Judge overlooked it. He went straight to deal with the issue of
service. Learned counsel conceded however, rightly in my view, that the requirement of service was a
matter of law, though whether or not a party has been served is a matter of fact. He criticised the trial
Judge for dealing, with the question of fact, ignoring the question of law that had been placed before him.
In counsel’s view, that was wrong. It was up to Honourable Ssekandi to come to court and state his
complaint of non-service.
There is no evidence that he made such a complaint. Counsel stated that the affidavit of Mr Karugire,
learned counsel for the Electoral Commission, that attached Honourable Ssekandi’s letter dated 16 May
2006 complaining of non-service had no evidential value. His reason is that it was not within the
perimeter of Mr Karugire to have knowledge of that letter. He had no instruction from Honourable
Ssekandi to represent him in this matter. He cited John Patrick Balidowa v Ziritwawula EPA number 3 of
1998, where this Court emphasised that the petitioner must state his interest in the petition. He invited us
to find that the trial Judge erred in not addressing himself to the question of locus standi. Had he done so,
he would have dismissed the application.
Mr Kiryowa argued this ground jointly with the sole ground of the cross-appeal. He contended that an
election petition cannot be maintained without the winning candidate being a party, because the winning
candidate is a statutory respondent. He cited rule 3 of the Parliamentary Elections (Election Petitions)
Rules 1996 and the case of Besweri Lubuye Kibuka v Electoral Commission and Daniel Kikoola EPA
number 2 of 1999 as his authorities for that proposition. In Besweri ’s case, this Court stated that there is
no valid election petition without the winning candidate. He pointed out that the Electoral Commission
was a party to that petition. Through its lawyers, the Electoral Commission discovered that the winning
candidate, Honourable Edward K Ssekandi, was not served. As parry to the petition, the Electoral
Commission had locus standi to bring that illegality to the attention of the court.
Counsel for both parties agreed in their submissions that the requirement of service of the notice of
presentation of the petition with a copy of the petition is a matter of law, though whether or not service
has been effected is a matter of fact.
I accept that position. Section 62 of the Parliamentary Elections Act and Rule 6(1) of the
Parliamentary Elections (Election Petitions) Rules 1996 enjoin the petitioner or his/her advocate within
seven days after filing the petition to serve each respondent a notice in writing of the presentation of the
petition accompanied by copy of the petition. Requirement of service is therefore, a statutory one.
Being a matter of law, failure to comply with it goes to the root of the case and is fatal to the petition
as a whole.
In Besweri Lubuye Kibuka v Electoral Commission and Daniel Kikoola EPA number 2 of 1999,
Daniel Kikoola who was the winning candidate was not served with a copy of the petition as required by
law. Having learnt of the petition somehow, he filed his answer to the petition under protest.
Page 187 of [2007] 1 EA 182 (CAU)

The High Court dismissed the petition mainly on the ground that it was not served on the winning
candidate. On appeal, this Court while dismissing the appeal said,
“By reason of non-service of the petition on the second respondent, no action was in existence.”
In the instant case, Mr Lubega criticised the trial Judge for dealing first with the question whether or
not service was effected instead of tackling the question of locus standi of the Electoral Commission to
bring the application first.
It is trite law that a party is entitled to apply to court to have a point of law argued before the trial of
the main case if the objection is one which will dispose of the whole action. See Independent Automatic
Sales Limited v Knowles and Foster [1962] 1 WLR 974.
As shown in Besweri’s case (supra) failure to serve the winning candidate, if proved, is fatal to the
whole petition.
The Electoral Commission as a party to the petition, therefore, had locus standi to apply to court to
hear and determine the question, whether the winning candidate was served as that could dispose of the
whole petition.
Ground three would therefore fail.

Grounds one and four

The complaint in these grounds is that the trial Judge erred in finding that the winning candidate,
Honourable Edward Ssekandi, as the first respondent, had not been served as required by law. Learned
counsel pointed out that section 62 of the Parliamentary Elections (Election Petitions) Act requires that
notice in writing of the presentation of the petition accompanied by a copy of the petition be served on
each of the respondents within seven days after filing the petition.
Rule 6(3) of the Parliamentary Elections (Election Petitions) Rules requires such a service to be
personal except where it was not possible within three days in which case an order for substituted service
must be sought from court.
Learned counsel stated that in the instant case, the affidavit of the process-server, Owere Frank, shows
that personal service with modifications as allowed by rule 36 of the Parliamentary Elections (Election
Petitions) Rules and Order 5, rule 16 of the Civil Procedure Rules was effected on the first respondent.
According to the said affidavit of Owere Frank, the deponent, effected service on the first respondent’s
secretary at his Law Firm. This was after the secretary who declined to disclose her name, had first rung
and talked to the boss. Thereafter, she told the process server to leave the document for service with her
and to return for the endorsed copy later. The process-server went to the first respondent’s Law Firm
offices upon the advice of Honourable Lukwago who informed the process-server that he had spoken to
the first respondent on phone and that the latter had advised that service on him be effected through his
Law Firm. Honourable Lukwago swore in an affidavit confirming that he gave that advice following a
telephone conversation with the first respondent.
Learned counsel submitted that there is circumstantial evidence that points irresistibly to the fact that
personal service was affected on the first respondent by leaving the document with his secretary at his
Law Firm offices on his instruction. The pieces of circumstantial evidence referred to are:
Page 188 of [2007] 1 EA 182 (CAU)

(1) Honourable Ssekandi in his letter of 16 May 2006 did not show how he came to know about the
petition against him.
(2) In the petition, he was the first respondent.
(3) As on 16 May 2006 he was quoting Election Petition number 0018 of 2006.
From the above, counsel submitted that the only inference that could be drawn is that the first respondent
had been served as required by law. Citing Oxford Dictionary of Law, learned counsel stated that
according to that dictionary, personal service was satisfied by leaving the document to be served in the
presence of the person to be served after informing him of the nature of the document. Most documents
required to be served personally could now be served by post.
In counsel’s view, where a person to be served has given instructions as to where to leave the
document to be served, leaving the document at the place advised, meets the requirement of personal
service. He cited Besweri ’s case (supra) where this Court discussed the object to service thus:
“To give notice to the party on whom it is made so that he or she might be aware of and be able to resist that
which is sought against him and where that has been done so that the might feel perfectly confident that
service had reached him and that everything had court been done that could be required – Kistler v Tetner
[1905] 1 KB 45: Dymond v Croft 3 ChD 512 ‘Service of process is required and goes to the root of our
conceptions of the proper, procedure in litigation’. Craig v Kanssen [1943] 1 KB 256.”

Learned counsel prayed that this Court finds that the first respondent duly served.
Mr Kiryowa did not agree. He contended that the first respondent was not served as required by law.
He pointed out that section 62 of the Parliamentary Elections (Election Petitions) Act instructs that
service shall be effected within seven days after filing the petition. Rule 6(3) of the Parliamentary
Elections (Election Petitions) Rules prescribes the mode of service to be personal on the respondent with
specific exception.
According to counsel, the Civil Procedure Rules cannot be invoked to change the clear provision of
the Parliamentary Elections (Election Petitions) Rules. Election Petitions are by their very nature
specialised proceedings. The Election Petitions Rules prescribed for personal service. Only where that
mode could not be effected within three days that an order for substituted service must be sought from
court.
Learned counsel pointed out that Honourable Ssekandi in his affidavit dated 8 August 2006 denied
instructing Honourable Lukwago that service on him could be effected through his secretary at his Law
Firm offices. Counsel argued that even if Honourable Ssekandi as the winning candidate, had instructed
that service on him be effected through an unknown person at a specific place, it could not meet the
personal service envisaged by law. He cited Tarzan Mighty v Michael Wilson and Oneil Marshall [1999]
Common Law CL of M188 Supreme Court of Jamaica. In that case, personal service was contemplated.
The issue was whether Mr Wilson had been served. Court found on appeal that on the evidence on
record, Mr Wilson had not been served.
I accept the view that Election Petitions are specialised proceedings by their very nature. That is why
there are special Rules, Parliamentary Elections
Page 189 of [2007] 1 EA 182 (CAU)

(Election Petitions) Rules 1996, regulating such proceedings. Rule 6(3) of the Parliamentary Elections
(Election Petitions) Rules prescribes for personal service in Election Petitions. When that fails within
three days, an order for substituted service has to be sought from court. This reinforces the importance
attached to the mode of service prescribed by rule 6(3) above. Unfortunately, personal service has not
been defined by the Parliamentary Elections (Election Petitions) Rules. In the absence of such a
definition, I do accept the definition given by Oxford Dictionary of Law as follows:
“Personal Service:-The service of a document in litigation effected by leaving a copy of the document with
the person to be served. It is often wrongly supposed that it is necessary to touch the person to be served with
the document, but it is in fact sufficient to leave it in his presence having informed him of its nature.”

Most documents required to be served personally can now be served by post. The requirement of
personal service would therefore, be met by leaving a copy of the document to be served in the presence
of the person to be served after informing him of the nature of the document. I would also accept that
leaving a copy of the document to be served at the place advised by the person to be served meets the
requirement of personal service.
In the instant case, the appellant’s case is that the document to be served was left at the place advised
by Honourable Ssekandi, the person to be served personally served. In their view, that satisfies the
requirement of personal service. Honourable Ssekandi denied that he ever gave that instruction. He swore
in an affidavit to that effect. This is a case of an oath against another.
Under section 103 of the Evidence Act (Chapter 6 Laws of Uganda), a person who wishes the court to
believe in the existence of a particular fact bears the burden to prove it unless the law provides otherwise.
The appellant wishes the Court to believe that Honourable Ssekandi instructed on where to leave the
document to be served on him. He has to prove the existence of that fact.
In my view, the appellant has not discharged that duty. If Honourable Ssekandi gave that instruction
on the phone as the appellant would like us to believe, it was possible to show by computer print out that
such a statement was made. This has not been done.
Even if that instruction had been given, the evidence of service is weak. The affidavit of service sworn
by Frank Owere left a lot to be desired. He stated that he left the document to be served with a lady
whose name he did not know. Yet he stated that he had on two previous occasions served court processes
on the first respondent’s Law Firm. He did not state whether the lady with whom he left the document
had been in the first respondent’s Law Firm offices when he earlier served court processes there. The
process-server was rather gullible.
Learned counsel for the appellant argued that there is circumstantial evidence that irresistibly points
to the fact that Honourable Ssekandi was served. One of the circumstantial evidence was stated to be
Honourable Ssekandi’s letter dated 16 May 2006 whose contents indicated that he was aware of the
petition. He even knew that he was the first respondent in that petition. I do not, with respect, accept that
these pieces of evidence irresistibly point to the fact that Honourable Ssekandi was served as required by
law. It may show that he knew of the existence of the petition but how he learnt of it is another matter.
He could have learnt of it somehow from other sources eg from the second
Page 190 of [2007] 1 EA 182 (CAU)

respondent. The circumstantial evidence does not sufficiently prove that service was effected on the first
respondent as required by law.
On the evidence available, the trial Judge was justified to find as he did.
Grounds one and four would therefore, fail.
Finally, I now turn to ground two. The gist of the complaint here is against the finding of the trial
Judge that non-service of the notice of presentation of the petition accompanied by a copy of the petition
was a matter of law and an illegality.
I wish to state straightaway that I have already adequately covered this ground when considering
ground three. Counsel for both parties agreed that requirement of service is a matter of law. I repeat that I
accepted this view. I am fortified by section 62 of the Parliamentary Elections (Election Petitions) Act
and rule 6(1) of the Parliamentary Elections (Election Petitions) Rules. Non-service is non-compliance
with the law.
I cannot fault the trial Judge on this. However, having found that non-service goes to the root of the
case, the trial Judge should have dismissed the entire petition, not only against the first respondent.
In the result, I would dismiss the appeal and allow the cross-appeal, dismissing the whole petition
with costs to the respondent.
Bahigeine JA: I have read the draft judgment of GM Okello JA. I entirely agree with his reasoning and
finding that the appeal should be dismissed and the cross-appeal allowed with costs to the respondent.
I have nothing useful to add.
Engwau JA: I had the benefit of reading in draft the judgment of Okello JA and I agree with him that the
appeal should be dismissed and cross-appeal allowed with costs to the respondent.
For the appellant:
Messrs Lubega Medad and Katumba
For the respondent:
Mr Kiryowa Kiwanuka

Mburugu v Fidelity Shield Insurance Company Ltd

[2007] 1 EA 190 (CAK)

Division: Court of Appeal of Kenya at Nairobi

Date of judgment: 26 May 2005
Case Number: 105/03
Before: Tunoi, O’kubasu and Onyango-Otieno JJA
Sourced by: LawAfrica
Summarised by: D Kibanga
[1] Civil procedure – Judgment – Order XX of Civil Procedure Rules – Whether a judgment not
delivered in 42 days a nullity.
[2] Evidence – Standard of proof – Burden of proof – Standard and burden of proof in civil cases.
[3] Insurance law – Theft of motor vehicle – Report of theft – Whether a report made after 10 days
inordinate delay.
Page 191 of [2007] 1 EA 190 (CAK)

Editor’s Summary
This is an appeal from the judgment of Mbaluto J in High Court civil case number 2013 of 2000. Brief
facts of the case in the Superior Court is that the appellant, the plaintiff in the Superior Court had taken
out a comprehensive insurance policy running between the period 8 March 2000 to 7 March 2001 over,
inter alia, his motor vehicle registration number KAH 964L. The subject motor vehicle was stolen on 1
July 2000 and whereas a report was made to the police, the insurance company was only notified on 10
July 2000 when the appellant duly filled the claim forms. The insurer denied liability hence the claim in
the Superior Court when the learned Judge dismissed the plaintiff’s claim on the grounds that the
plaintiff had failed to establish on a balance of probabilities that there was theft as claimed, and further
that the failure to report the incident as soon as possible was in condition breach of the insurance policy.
The appellant felt aggrieved and filed this appeal raising numerous grounds, inter alia, that the Judge
erred in delaying the delivering of the judgment and that rendered the judgment null and void; that the
Judge erred in holding that there was no theft of the subject motor vehicle in the absence of any material
contradicting the appellant’s evidence; that the learned Judge erred in finding that the notice given of the
alleged theft was not in compliance with the requirement of condition for the policy and was therefore
not a proper notice as it was not given as soon as possible.
Held – Standard of proof in civil cases is on a balance of probabilities.
Whereas Order XX, rule 1 gives time limitations for delivery of judgment to 42 days, there is no
provision as to the consequences of non-compliance. It would create injustice and confusion in the court
corridors if non-compliance were to be met with orders declaring such judgments void.
In the circumstances of this case, a notice which was made nine days later was made as soon as
possible and in compliance with condition 4 of the policy of insurance.

Case referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Nyagwoka Ogora alias Kennedy Kemoni Bwogora v Francis Osoro Maiko civil appeal number 271 of
2000 (UR)

Judgment
Tunoi, O’Kubasu and Onyango-Otieno JJA: The appellant in this appeal, Johnson M Mburugu, was
the plaintiff in the Superior Court. He was a transporter and to that effect, he had four trucks during the
period relevant to this case. Three of these trucks were bearing registration numbers KAE 254T, KAE
255T and KAG 642H. The fourth truck had registration number KAH 964L and was a 30 tonnes truck.
All these trucks were insured by the respondent in this appeal, Fidelity Shield Insurance Company
Limited, through AON
Page 192 of [2007] 1 EA 190 (CAK)

Minet Insurance Brokers Limited who acted as brokers for the appellant for purposes of the insurance of
the vehicles with the respondent. The record shows that the insurance cover number was 0076331 and
period covered was 8 March 2000 to 7 March 2001. The vehicles covered as per that coverage summary
were as follows:
“(1) KAH 964 LM/Benz Prime Mover 1990 – KShs 4 000 000.
(2) KAE 254 TM/Benz Prime Mover 1990 – KShs 1 500 000.
(3) KAG 642 HM/Benz Prime Mover 1990 – Third Party Only.
(4) KAE 255 TM/Benz Prime Mover 1990 – Third Party Only.”

That cover summary was issued by AON Minet Insurance Brokers Limited on 6 March 2000 and
indicated that the certificate of insurance was issued to the appellant covering the insurance of the same
vehicles. However, policy number HCO 335000817 in respect of the insurance for the same vehicles was
not issued till 1 November 2000. Notwithstanding that delay, both parties agreed that the vehicles were
covered by the insurance policy during the relevant period, namely 8 March 2000 to 7 March 2001 and
that for the vehicle KAH 964L, the value covered was KShs 4 million. The appellant employed several
drivers for the vehicles but it would appear from the records that no driver was assigned any particular
vehicle and any driver could drive any of the vehicles including vehicle registration number KAH 964L
depending on the need and availability of the driver.
The appellant’s case as was presented to the Superior Court was that on 1 July 2000, between 10am
and 11am his driver, John Kinyugo Kamau (PW7) who arrived in Nairobi from Kiganjo with milk and
had delivered the same milk to KCC Dandora in vehicle KAE 254T, left the same vehicle at KCC Depot
offloading milk and took motor vehicle KAH 964L from KCC Dandora Factory for fuelling as instructed
earlier on by the plaintiff. He was going to fuel the same motor vehicle at Eastleigh Petrol Station. At
Outering Road at the Railway Flyover, the vehicle developed a problem as its accelerator rod failed to
function. Kamau parked the vehicle by the road side so as to check the problem. After he had adjusted
the rod which was loose, and as he replaced the bonnet rod to proceed with the journey, he was attacked
by thugs who beat him up, put him into their car’s boot and drove him away dumping him in some forest
near Kitengela, leaving the vehicle on Outering Road where he had parked it. He reported the incident at
Athi River Police Station and later in the evening of the same day, on returning to the spot where he had
left the vehicle, he found it was not there. He went back to Dandora KCC Depot but the vehicle was not
there either. He reported to the appellant who made a report to Buru Buru Police Station. Later after
searching, the appellant realised the vehicle was stolen and made a report to AON Minet Insurance
Brokers, and in turn a report of theft was made to the respondent and claim forms filled and furnished to
the respondent. The respondent appointed motor vehicle assessor and valuer, and an investigator both of
who carried out valuation of the vehicle and investigation on the matter. After several correspondences
on the claim, the respondent in a letter dated 6 September 2000 addressed to AON Minet Insurance
Brokers Ltd stated as follows:
“AON Minet Insurance Brokers Limited
AON Minet House,
Minlark Division,
Nairobi.
Page 193 of [2007] 1 EA 190 (CAK)
Dear Sir,
Alleged Theft of Motor
Vehicle number KAH 864L (sic)
Date of Loss: 1 July 2000
Insured: John M Mburugu
Our Claim number NM/20779.
We refer to the above claim and having gone through the claim form and statements by the insured and the
driver, we decided to conduct further investigations on this matter.
We have now received the report from the investigators and there is no convincing evidence that the theft of
the vehicle took place as alleged. There are various issues which have emerged, particularly on the condition
of the vehicle prior to the alleged theft. In the circumstance, we feel that this claim is not payable and we are
accordingly declining liability.
It is also our intention that the insurance cover on this policy be terminated as per the terms of the policy
which please act accordingly.
Yours faithfully,
GO Aram
For General Manager”

Thereafter, the correspondence continued between the parties through their agent, AON Minet Insurance
Brokers Limited. On 1 November 2000, ie about three months after the letter declining liability above,
the policy was, as we have stated, issued and it was issued for all the vehicles including the subject
vehicle registration Number KAH 964L and not KAH 864L as stated in the letter declining liability
above. Notwithstanding the issue of the policy, the respondent’s stand on the refusal to accept the claim
remained and the policy in respect of the subject vehicle was later terminated. The appellant through his
advocates made a formal demand of admission of liability in his letter dated 26 September 2000. In its
reply, the respondent in its letter of 12 October 2000 repeated the contents of its letter dated 6 September
2000 which we have reproduced hereinabove. The appellant sought to refer the matter to arbitrators but
the letter from the respondent’s advocates seeking the same did not attract any response. On 10
November 2000, the appellant filed a plaint against the respondent in which he sought judgment against
the defendant for:
“(a) Declaration that the defendant cannot terminate the comprehensive insurance policy contract/cover
between it and the plaintiff after the peril which was insured against had happened.
(b) KShs 4 million being the insured value of the motor vehicle.
(c) Loss of earnings amounting to KShs 20 000 per day until payment in full.
(d) Interest on (b) from 1 July 2000 until the date of payment of the plaintiff’s claim.
(e) Costs of the suit.
(f) 1f (sic) Any other relief this Honourable Court deems just to grant.”

The judgment was sought on the grounds we have set out above. The respondent denied the claim and
filed defence dated 30 November 2000 on 1 December 2000. Paragraphs 4, 5, 6, 7 and 8 of the same
defence are in our view important, as well as paragraphs 11 and 18. These paragraphs state as follows:
“(4) It is an express condition of the defendant’s commercial vehicle policy that:
(a) The plaintiff shall not be liable to pay any consequential loss.
Page 194 of [2007] 1 EA 190 (CAK)
(b) The insured shall take all reasonable steps to safeguard the motor vehicle from loss or damage.
(c) In the event of any occurrence which may give rise to a claim under that policy the insured shall
as soon as possible give notice thereof to the plaintiff with full particulars.
(d) In the event of theft the insured shall be responsible for the first 10% of the sum insured of any
loss.
(5) The plaintiff (sic) denies paragraphs 5 and 6 of the plaint.
(6) The defendant denies that the motor vehicle KAH 964L was stolen on the 1 July 2000 or any other day
as alleged or at all.
(7) The defendant denies that there was any theft of the motor vehicle KAH 964L as alleged or at all.
(8) If, which is denied, there was any theft of the motor vehicle KAH 964L on 1 July 2000, then:
(a) The plaintiff failed to give notice to the defendant of the alleged theft as soon as possible. The
plaintiff did not report the alleged theft to AON Minet Insurance Brokers Limited until 10 July
2000. The plaintiff only completed the Motor Theft Claim Form on 14 July 2000. Plaintiff’s
agents AON Minet Insurance Brokers Limited only reported the alleged theft to the defendant
by letter dated 14 July 2000 delivered to the defendant on 17 July 2000.
(b) The plaintiff did not take all reasonable steps to safeguard the motor vehicle from loss or
damage.”

At paragraph 11 of the same defence, the respondent denied that the motor vehicle was worth KShs 4
million on 1 July 2000 as alleged or at all and at paragraph 18 it states that if there was liability (which is
denied) on the respondent that the appellant would bear the first 10% of the sum insured. The appellant
filed reply to the defence and issues were framed and agreed by both parties. The matter was then heard
by the Superior Court (Mbaluto J) who after full hearing dismissed the claim stating, inter alia, as
follows:
“In the event my finding is that the plaintiff has failed to establish on a balance of probabilities that there was
a theft as claimed. Even if theft had been established, the failure by the plaintiff to report the incident as soon
as possible was in my view a breach of condition 4 of the policy of insurance which breach entitles the
defendant to repudiate liability, as indeed they did. In the premises the plaintiff’s suit fails and is dismissed
with costs.”

That decision is the genesis of this appeal before us which is a first appeal. The appellant felt aggrieved
and has come before us on appeal citing fourteen grounds of appeal which are in a summary that the
learned Judge erred in delaying the delivery of the judgment and that rendered the judgment null and
void; that the judgment of the Superior Court was not based on the evidence that was adduced before the
court; that the Judge erred in holding that there was no theft of the subject motor vehicle in the absence
of any material evidence contradicting the appellant’s evidence; that the learned Judge erred in finding
that the notice given of the alleged theft was not given in compliance with the requirement of condition 4
of the policy and was therefore not a proper notice as it was not given as soon as possible; that the
learned Judge erred in failing to consider the circumstances surrounding the report of theft which
circumstances made the time within which the report was made proper as for requirement of condition 4
of the policy; that the learned Judge erred in considering extraneous circumstances namely the state of
the other three
Page 195 of [2007] 1 EA 190 (CAK)

vehicles to lead him into concluding that the subject vehicle was out of service at the time of the alleged
theft; that the learned Judge erred in his assessment of the damages that would be paid if the vehicle was
found to have been stolen and in ignoring the value that was ensured; that the learned Judge erred in
finding that the respondent was entitled to repudiate liability after the peril insured against had occurred
and that the learned Judge erred in relying on the respondent’s motor vehicle assessor’s report whereas
the same assessor admitted in evidence that he did not physically see the subject motor vehicle for
assessment.
From the record, the memorandum of appeal, the judgment and the able submissions of the learned
counsel who appeared before us, it is clear to us that the appeal before us is hinged on two main grounds
and these are that the appellant maintains that the subject motor vehicle namely KAH 964L Mercedes
Benz Lorry which was insured by the respondent against, among others, theft, was stolen on 1 July 2000
and that he had, through his witnesses and exhibits, proved that the same theft took place on 1 July 2000
and so he was entitled to benefit from the proceeds of the contract of insurance. The respondent on the
other hand contends that the vehicle was not stolen at all and so the claim for the amount insured does
not arise. Secondly, the respondent contends further that if the vehicle was stolen as alleged or at all, then
the respondent is entitled to repudiate the content of insurance because the same theft was not reported as
soon as possible in compliance with the provisions of condition 4 of the policy. Two other matters were
also in contention, and these were, first, the value of the vehicle at the time of the alleged theft and
whether or not the appellant was entitled to damages resulting from consequential loss of the insured
vehicle. There was also the appellant’s contention that as a result of the inordinate delay in delivering the
judgment by the Superior Court, the judgment before us reflects lapses of memory and is not a proper
judgment. We will consider this after considering contentious issues.
We have carefully considered the rival positions of the parties, the evidence before the Superior
Court, authorities to which we were referred and the law. We also are alive to the legal principles that
this being a first appeal, we are enjoined to consider and analyse the evidence that was before the
Superior Court afresh and come to our own conclusion but always bearing in mind that the Superior
Court had the advantage of seeing the witnesses and their demeanour and giving allowance for the same.
We will start by considering the last contentious issue and that is whether or not the appellant was in
law entitled to damages that arose as a consequence of the loss of the insured vehicle. The policy states at
clause 4 as follows:
“The company shall not be liable to pay for:
(a) Consequential loss, depreciation wear and tear, mechanical or electrical breakdown failure or
breakages.”

That clause appears to us clear and unambiguous.

The appellant in his plaint states at paragraph 11 as follows:
“(11) The plaintiff avers that he has suffered loss of his motor vehicle insured for KShs 4 million and in
additional (sic) he continues to suffer loss of earnings amounting to KShs 20 000 per day and eminent
collapse of his transport business as a result of the callous and fundamental breach of the
comprehensive insurance contract and that fundamental breach of terms of the comprehensive
insurance policy cover on the part of the defendant.”
Page 196 of [2007] 1 EA 190 (CAK)

Based on that pleading, the appellant sought judgment for loss of earnings amounting to KShs 20 000 per
day until payment in full. The insurance policy does not take care of the claim as it is not part of the
contract and in fact, the policy states in the clause we have reproduced hereinabove that the respondent
would not be liable for consequential loss. So if the claim is viewed as a consequential loss, then it is
clearly not available. It appears however from paragraph 11 of the plaint we have quoted above, that the
appellant is seeking damages on grounds that the respondent, in refusing to accede to his claim
immediately, has subjected him to loss of earnings that he was getting daily from his business. In our
view, that would amount to punishing the respondent for exercising its legal rights to dispute the claim.
The Superior Court was not shown any provision in the contract and we have not seen any that states that
if the respondent refuses to pay the insured sum or repudiates the policy, then it would meet damages
resulting from the loss of earnings from the business that the insured vehicle was engaged in. Further,
even if it were to be treated as damages flowing from breach of contract, it would be treated as special
damages which must not only be pleaded but must also be strictly proved. We have perused at length the
evidence of the appellant and all his witnesses but there is no evidence proving or even attempting to
prove this claim. The learned Judge states in his judgment concerning this claim as follows:
“In the plaint the plaintiff also claims KShs 20 000 per day (presumably from the date of the alleged theft)
until payment in full but no evidence whatsoever was tendered to prove this claim and I would disallow it.”

We agree. Having looked at this claim from all sides, we are neither persuaded that it was available nor
that it was proved within the standards required in civil law. We say no more on this aspect of appeal. It
is rejected.
That leaves us with four main aspects of the case to consider, and these are first, whether the Superior
Court’s decision to reject proof of theft was on sound grounds both factually and in law; whether the
claim could be repudiated on grounds that it was not reported “as soon as possible” as required by
condition 4 of the policy and the question of damages that should have been allowed if the claim was to
succeed. There was also the ground of appeal based on delay to deliver the judgment and its effect on the
entire case and whether it would be a ground for allowing the appeal.
The learned Judge, in his summary of pleadings and evidence on the question as to whether the
subject vehicle was proved stolen or not, correctly stated that the respondent in its defence statement
maintained that there was no theft of the motor vehicle as alleged or at all. However, in his judgment, he
felt that as regards the alleged theft incident, the defendant (now respondent) was obviously
disadvantaged in that it could not by the very nature of the circumstances surrounding the incident, tender
any possible evidence to dispute what the plaintiff (appellant) said and that indeed all the respondent was
able to do was to raise suspicion as to the veracity of the plaintiff’s story and also to point out possible
inconsistencies in the evidence tendered on behalf of the appellant especially by John Kanyugo Kamau
(PW7), the driver of the subject vehicle, at the relevant time and then he proceeded to discuss what he
found to be several inconsistencies in the evidence of John Kanyugo Kamau. The same inconsistencies
were that Kamau said he had driven the vehicle a few days before 1 July 2000 without giving details of
where he had driven it; that Kamau was provided with money to fuel KAH 964L on 29 June 2000 before
leaving for
Page 197 of [2007] 1 EA 190 (CAK)

Kiganjo in another vehicle, a feat which should have been performed by another driver who did not travel
to Kiganjo; that Kamau should not have been chosen to go to Kiganjo the day following the alleged
incident of robbery as he should have been traumatised; the claim by both the appellant and Kamau that
all the documents relevant to the motor vehicle were lost with the vehicle and the appellant’s failure to
produce any evidence to show that the motor vehicle was in use between 2 January 2000 and 1 July 2000.
Coupled with all the above, the learned Judge also made a finding in buttressing his view that there was
no theft stating as follows:
“Indeed the derelict condition of the plaintiff’s other vehicles (as appears in the photographs tendered in
evidence as exhibits F (KAE 254T), G (KAG 642H) and worse still H (KAE 255T) strengthens the belief that
all the plaintiff’s motor vehicles including KAH 964L may have been out of service at the time of the alleged
theft.
The evidence of the defendant’s investigator, Hannington Gaya (DW1), was that KAE 255T was certainly
not serviceable while KAE 255T (sic) was doubtful as to its serviceability. All that strengthens suspicion
regarding the plaintiff’s case. Having considered the matter as carefully as I can I have reached the conclusion
that the plaintiff’s motor vehicles were not the types of machines that could effectively be used to pull milk
tankers from Kiganjo to Nairobi and that the whole story about theft is a fairy tale. Accordingly my finding is
that there is no sufficient evidence to prove on balance of probability that theft occurred.”

We have considered the above findings and conclusion anxiously. In our view, we do not share the
learned Judge’s views that the respondent was at a disadvantage as to the allegations of theft and
therefore could not tender any evidence to show that theft never took place. It cannot escape one’s mind
that unlike such pleadings where the respondent would have simply denied the allegation of theft and put
the appellant to strict proof of the same allegation, in this case, the respondent was positive and stated in
its statement of defence at paragraphs 6 and 7 which we have reproduced hereinabove and which the
learned Judge also reproduced in his judgment that there was no theft of the motor vehicle as alleged or
at all. That statement by the respondent was positive and the respondent assumed the onus of showing
that the alleged theft of the subject motor vehicle was a figment of the appellant’s fertile imagination or
that the appellant was an outright liar. It could not in the end leave the whole matter to merely raising
suspicion on the theft theory through alleged inconsistencies in the evidence of the appellant and his
witnesses. The respondent, for instance, needed to show that it made inquiries through police or through
professional investigators and found that the vehicle was not stolen as alleged or was not stolen at all, or
was instead hidden somewhere by the appellant. Although the appellant and his driver, Kamau, gave
clear and unchallenged evidence that the report of theft was first made at Athi River Police Station and
later at Buru Buru Police Station, and although witnesses from the two police stations gave evidence of
the reports having been made to their stations as stated by the appellant, no attempt was made by the
respondent to visit the two police stations to verify the same evidence and so the evidence remained that
theft of the subject vehicle was reported the same day at the two police stations. Theft was alleged to
have taken place on 1 July 2000 and the hearing of this case proceeded before the Superior Court up to
15 March 2002, and for all that period, the police to whom the reports were made had not established any
evidence contrary to the reports of theft. If there was any evidence to demonstrate that the reports to the
police were false, the same would have been
Page 198 of [2007] 1 EA 190 (CAK)

availed by the respondent calling the police to adduce it or by the respondent adducing the same evidence
from the police witness number 217131 Inspector Wambua, the Officer Commanding Athi River Police
Station, who was called as the plaintiff’s witness number two (PW2) and who stated that they
investigated the matter and that the same investigations were still pending, and number 217256 Inspector
Albert Muthiani Kioko (PW3) who was called from Buru Buru Police Station by the appellant. He was
then in-charge of Crime Branch at Buru Buru Police Station. On cross-examination by Mr Fraser, for the
respondent, he said he had not yet traced the subject motor vehicle. In our view, it was not open to the
Superior Court to hold as it did that regarding theft, the respondent who had asserted that the vehicle was
not stolen as alleged was obviously disadvantaged in that it could not by the very nature of the
circumstances surrounding the incident, tender any positive evidence to dispute what the appellant said.
Of course, it could tender positive evidence to dispute the appellant’s evidence if it was sure the vehicle
was not stolen. We have given one way it could do so which was by adducing evidence from the police
stations relevant and even from the police unit dealing with motor vehicle theft and car jackings. To
proceed the way the learned Judge did was to ignore the requirement in law that in civil cases, he who
makes an allegation must prove it and that proof required is that within the standard of probability and no
more. He released the respondent from the duty to show that theft never took place and put a higher
standard on the appellant to prove that theft took place even though the report of theft was made to the
relevant authorities namely the police who never found it a false report.
Further, the learned Judge concluded that there was no theft on grounds of what he termed the
inconsistencies in the appellant’s case giving rise to suspicion that theft may not have taken place and
that the subject vehicle must have been derelict and unserviceable as the other two vehicles and so could
not have been on the road to be stolen as alleged. On inconsistencies, our reading of the record does not
lead us to the finding made by the learned Judge that the driver had claimed he had driven the subject
motor vehicle a few days before 1 July 2000 but without giving the details of where he had driven it to.
On this point, the record shows that Kamau (PW7) stated in cross-examination as follows:
“Before 1 July 2000, I had driven the motor vehicle a few days before but I cannot recall the exact date. We
were many drivers and it depended on instructions from the boss as to who drove which motor vehicle.”

We cannot see any inconsistency in this evidence particularly because the driver was not confined to the
time before 1 July 2000 when he drove the vehicle and certainly he did not state that he did not know
where he drove it to. That question as to the place where he drove it was apparently not raised and was
not answered. The second fault the learned Judge found in the evidence of Kamau was that he said the
subject motor vehicle was used when the appellant’s other vehicles broke down but again no details were
given. On our part, we are at a loss as to why Kamau should have been blamed for that. He was not the
owner of the vehicles and certainly could not know when other vehicles broke down and when he was
asked to drive the said vehicle on that account. He never said he was in-charge of the work arrangements
for all the vehicles and that being so, we cannot see why he was required to provide details of when other
vehicles broke down and use of the subject vehicle became necessary. In any case, we cannot see in the
record where Kamau was challenged to
Page 199 of [2007] 1 EA 190 (CAK)

provide details as to what dates other vehicles broke down and the subject vehicle was used. Further, the
learned Judge felt that the allegation that Kamau was given money for petrol to fuel the subject vehicle
on 29 June 2000 before leaving for Kiganjo in another vehicle lacked credibility because that task,
according to the Superior Court, should have been left to another driver and not to Kamau who was going
to Kiganjo. As Kamau rightly said, that was a decision of the appellant who was his employer. The
appellant in his evidence in chief said he had given the driver KShs 10 000 to fuel the motor vehicle on
29 June 2000. In cross-examination he repeated the same evidence and said he had also given the driver
KShs 12 000 for the other vehicle. He was not challenged by the defence to give explanation as to why
he gave the same money for fuelling the subject vehicle two days before the date the vehicle was to be
used. In our view, we see nothing incredible in the employer arranging the work to be done by his
employees giving the same employees money for the same work in advance and as the defence did not
press for explanation, we cannot view that evidence as incredible in the absence of any explanation. That
was the appellant’s organisational work system and we cannot default it, nor can we say in any case that
because it looked different from others, it necessarily meant that the vehicle was not stolen on 1 July
2000. The other aspect that the Superior Court found odd was that Kamau should have been sent to
Kiganjo a day after the robbery notwithstanding that he had been beaten and traumatised and further
notwithstanding that there were other drivers available. Again, this depended on to what extent Kamau
was traumatised and to what extent he was beaten. That he did not end up in hospital could mean he was
not seriously injured and so was still able to go about his other duties. Further, it also depended on what
other drivers were engaged in on the relevant date. We do not attach any importance to this aspect
bearing in mind the general behaviour of several employers in Kenya. That the documents relevant to the
motor vehicle such as those related to the jobs done, purchase of fuel and service maintenance were in
the vehicle and went with the vehicle is not abnormal. This was apparently a one man’s business and
documents such as for maintenance needed not be taken to the office. In any event, not all documents
relevant to the vehicle were with the vehicle. Registration book, other past policies, previous receipts for
the vehicle and relevant policy were produced in evidence in the Superior Court.
Perhaps the most disturbing part of the Superior Court’s judgment was the finding that because the
other three motor vehicles, KAE 254T, KAG 642H and KAE 255T appeared in the photographs to be
derelict and unserviceable and because no documents for the relevant vehicle were produced, the court
believed and found that:
“all the plaintiff’s motor vehicles including KAH 964L may have been out of service at the time of the alleged
theft.” [Emphasis mine.]

The Superior Court added on to the part we have reproduced above the evidence of the respondent’s
investigator, Hannington Gaya, confirmed that KAE 255T was certainly not serviceable while KAE 255T
(perhaps meant to be KAE 254T) was doubtful as to its serviceability, therefore all the appellant’s
vehicles including the subject vehicle were:
“not the types of machines that could effectively be used to pull tankers from Kiganjo to Nairobi and that the
story about theft is a fairy tale.”
Page 200 of [2007] 1 EA 190 (CAK)

We find this finding and conclusion disturbing because, firstly, the Superior Court in making the same
finding clearly considered extraneous matters namely, the condition of the other three vehicles to decide
on the condition of the relevant vehicle. This is not proper in law as the trite and settled law is that only
matters before the court on relevant issue need to be considered. That the photographs of the other three
vehicles indicated that those vehicles were derelict did not necessarily mean that the subject vehicle of
which photograph the court did not see was also derelict. It is in our view dangerous to decide issues on
the approach the Superior Court adopted. Secondly, it is disturbing because, in making the same finding
and in arriving at the same conclusion, the Superior Court does not seem to have considered the evidence
of Michael Mbithi Mbondo (PW4), who was an employee of Jakamu Society Limited and was working at
the relevant time as in-charge of security guards stationed at Dandora KCC. This witness said he saw
Kamau drive the subject vehicle KAH 964L out of the Dandora KCC Depot on 1 July 2000 and on
cross-examination, he said he had seen the motor vehicle operating in the depot since 1988 and seen it
operating in early June 2000. It was carrying KCC products and he added in re-examination that on 1
July 2000, the driver, having driven the vehicle out of the depot, went back later and told him the vehicle
was lost. In our mind, if the Superior Court had considered this evidence, it could have hesitated in its
finding that because of Gaya’s report and because of the photograph of other vehicles, this vehicle too
was not serviceable. The third disturbing aspect of the learned Judge’s findings and conclusion is that it
was based heavily on Gaya’s evidence. Gaya was the first defence witness (DW1). He was a consultant
motor assessor. The learned Judge erroneously referred to him and treated him as the respondent’s
investigator which he was not. Part of his evidence in chief was as follows:
“I was consulted by the defendant regarding the value of motor vehicle KAH 964L. I was consulted after the
alleged theft. I have seen a copy of exhibit 1. I had an opportunity to look at the pervious valuation reports by
Worthy Motor Tech. Consultants (exhibit 7 and 8).
Based on these documents, I prepared a valuation – this valuation exhibit C (sic)… I also visited DT Dobie
to confirm the replacement price.
At DT Dobie they had 4 trucks which were 4 years old, selling at 2.5 million to 4 million depending on
actual (sic). That helped me also in my determination of the value of a 10 year trucks” (sic).

In cross-examination, he said inter alia:

“I did not view the motor vehicle subject matter of suit at any time... The condition of a motor vehicle is a
factor – it takes about 10%. It is a factor I could not apply because I did not see that motor vehicle.
I took one photograph of two of the motor vehicles but it is not included in my report.”

This witness made it clear that he did not see the subject motor vehicle; that he was not an investigator
and that although he took photographs of the other two vehicles, that photograph was not included in his
report. Our reading of his entire evidence does not reveal at any part thereof that he said the vehicles
KAE 255T was “certainly not serviceable” while KAE 255T (sic) was doubtful as to its serviceability.
The Superior Court relied on that evidence as we have stated above to strengthen its finding that the
subject motor vehicle was equally unserviceable and could not therefore have been stolen as alleged by
the appellant. As we have stated, Gaya’s evidence (to which we will refer later when
Page 201 of [2007] 1 EA 190 (CAK)

considering quantum of damages) was that he never saw the subject motor vehicle and according to the
records, he did not say the other vehicles of which photographs he took were unserviceable. This finding
does not, with respect, support the evidence on record and could not therefore be a basis for the finding
that theft of the subject motor vehicle never took place.
Lastly, even if we were to accept that the various pieces of evidence as mentioned by the learned
Judge could be viewed as an inconsistency, in our view, the same pieces of evidence, viewed each on its
own and viewed as a whole did not go to the root or to the core of the main issue that was before the
court to wit whether theft of the subject vehicle did indeed take place. What we mean is, for example,
that whether Kamau was given fuel money earlier than the date he was to drive the subject vehicle cannot
lead to a finding that the vehicle was never stolen and whether giving of that money earlier, and driving
to Kiganjo one day after the theft together with documents for maintaining the vehicle not being availed
and the other two vehicles being derelict are put together, the same cannot lead to a finding that the
subject vehicle was not therefore stolen. They are all matters on the periphery. What in our view could
have lead to a finding that the vehicle was not stolen would have been, among others, police report
contrary to the appellant’s allegation or a report by an investigator (not an assessor as Gaya was) directly
to the effect that the vehicle was not stolen. These were missing in this case. Thuo (DW2) was the
investigator but his evidence was mainly on his having taken photographs of vehicles and whether the
same vehicles viewed from photographs were serviceable or not. He did not talk of KAH 964L. He said
in cross-examination as follows:
“Our recommendation were based on our findings though we did not visit the police stations concerned …
The reference to motor vehicle being hidden is for injunction by Okoth. I did not go into details about the
hiding of the motor vehicle.”

In our view, that evidence could not help the court.

The respondent had the duty, having alleged that the vehicle was not stolen to adduce such evidence
either through cross-examination of the appellant’s witnesses or through their own witnesses. They did
not prefer to do so and the appellant’s evidence and that of his witnesses as to theft of the motor vehicle,
in our mind, was not seriously shaken as to be displaced. This was a civil case and proof required that
theft did take place was that within the balance of probability and section 3(2) of the Evidence Act
(Chapter 80 Laws of Kenya) states:
“3(2) A fact is proved when, after considering the matters before it, the court either believes it to exist, or
considers its existence so probable that a prudent man ought, in the circumstances of the particular
case, to act upon the supposition that it exists.”

We do find, on our own analysis of the evidence that was before the Superior Court, that the learned
Judge had no sound basis for rejecting the appellant’s evidence on theft.
The incident giving rise to this claim took place on 1 July 2000. This was a Saturday. The appellant
says in evidence that he reported the theft to the insurance brokers, AON Minet on 3 July 2000 by phone.
That date, 3 July 2000 was a Monday and that was the first working day. He says that later on 10 July
2000 he formally lodged a report having obtained forms for the claim. The respondent in his statement of
defence part of which we have reproduced above maintains that the report was not made as soon as
possible as required by
Page 202 of [2007] 1 EA 190 (CAK)

the policy. It denies that any report was made on 3 July but accepts that the report was made on 10 July
2000 and hence repudiation of the claim. The appellant on the other hand contends that the report was
made in good time or at least was made “promptly”. The Superior Court, after analysing the evidence,
rejected the appellant’s claim that the appellant first reported the incident by telephone to Susan
Nyamweru Gourley (DW3) on 3 July 2000 but accepted and made a finding that the claim was reported
on 10 July 2000 and not on 3 July 2000. He further found that that did not satisfy condition 4 of the
policy which required such a report to be made as soon as possible. He concluded as follows:
“It would appear to me that in the context of the instant case and in the circumstances obtaining as at the time
of the alleged theft the plaintiff failed to comply with condition 4 of the policy in that he did not ‘give notice
of the theft to the defendant as soon as possible’. In that respect, I would repeat that the theft having occurred
on 1 July 2000 which was a Saturday, the plaintiff was in a position to report the matter the following
Monday, 3 July 2000. The delay of another 10 days until 10 July 2000 is unexplained and unreasonable and
by virtue of condition 10 of the policy disentitles the plaintiff from recovering under the policy. For these two
reasons I am satisfied that the defendant was entitled to repudiate liability under the policy.”

The relevant part of condition 4 of the policy states:

“In the event of any occurrence which may give rise to a claim under this policy the insured shall as soon as
possible give notice thereof to the company with full particulars… In case of theft or other criminal act which
may give rise to a claim under this policy the insured shall give immediate notice to the police and co-operate
with the company in securing the conviction of the offender.”

It is not in dispute, and witnesses we have referred to hereinabove did confirm to the Superior Court that
reports were made to the police immediately after the incident. The reports were made at Athi River
Police Station and at Buru Buru Police Station. The report that was disputed was the one allegedly made
on 3 July 2000 by phone to AON Minet. The notice of 10 July 2000 to AON Minet was, according to the
respondent and the Superior Court, not made in compliance with condition 4 of the policy in that it was
not given as soon as possible. The appellant’s evidence on the issue was that he telephoned the offices of
the insurance company on 3 July 2000 and talked to a lady called Susan Ngari identified as DW3 and
reported the incident; that initially he wanted to talk to Mr Gicho (DW4) but he was told that Gicho was
away and would be back in the office on 10 July 2000. He then formally reported the incident on 10 July
2000. The learned Judge rejected the first part of this evidence which related to report by telephone to
Susan Gourley (referred to as Ngari by the appellant in his evidence). In so rejecting that part of the
evidence, it does not appear to us that he considered the evidence of the same Susan Gourley which was
that:
“We do not keep a record of calls we received. Sometimes we get more than twenty calls from clients.”

It is true that the same witness also said that if they were to receive a telephone call from a customer to
say that a motor vehicle had been stolen, she would put that report in a file note and send it for
circulation and that it was not their practice to tell a customer to call later just because the officer
concerned was away particularly regarding the report of theft. However, it must be noted that the
appellant said he initially wanted to speak to Gicho but he found Gicho was
Page 203 of [2007] 1 EA 190 (CAK)

away and would not be there till 10 July 2000. If his telephone call seeking Gicho was taken as any other
telephone call, then Susan would not have kept a record of it but nonetheless it would have still explained
the circumstances why the report was made on 10 July 2000, nine days later. Further, it will be noted that
Susan, in cross-examination, admitted that even when she talked to the appellant later after 10 July 2000
she did not make a note of the conversation. Be that as it may, the vehicle was stolen on 1 July 2000, and
the report was made to the police who were still investigating the theft. Under these circumstances, we
read no inordinate delay in reporting the matter on 10 July 2000, nine days later. What we find
instructive is that although the respondent repudiated the policy mainly on this issue of failing to report
as soon as possible, and on the issue that theft did not take place, when the report was made on 10 July
2000, they did not outrightly reject the report on that basis of late notice. In fact, they accepted the report
and Gicho in fact gave the claim form to the appellant on 12 July 2000 and advised him on how to fill the
same form. That form was completed and returned to AON Minet on 14 July 2000. It was sent to the
respondent and the respondent received it on 17 July 2000. After the same claim form had been received
by the respondent, the respondent wrote to AON Minet on 6 September 2000 a letter, a copy of which we
have reproduced hereinabove. That letter, it will be noted, was written about two months after 10 July
2000, the date now said to have not complied with the requirement of “as soon as possible” and in that
letter all that the respondent raised for declining liability was that it was not convinced that theft of the
subject motor vehicle took place. The respondent never alluded to non-compliance with condition 4 of
the policy. If non-compliance with condition 4 was one of the grounds for declining liability, the
respondent could not have failed at that time to say so. In fact if non-compliance with condition 4 was an
issue, then the respondent would have repudiated the policy without even need to appoint investigators
and assessors, for the claim would have been a non-starter ab initio. We feel this was a fall back position
taken by the respondent in case their first stand on lack of proof of theft did not carry the day. On our
part, we do not treat a notice of theft, nine days later, to be a notice not made “as soon as possible” in the
circumstances of this case. We note also that the policy which contained condition 4 was issued well
after the incident giving rise to the claim had occurred and thus, the appellant could not have read it
before the incident so as to comply with it. The Superior Court did not consider this aspect which could
have been important in deciding whether the appellant complied with condition 4 strictly or not.
That leaves us with the question of the quantum to be paid to the appellant and whether or not the
delay in delivering the judgment vitiated the judgment that was delivered by the Superior Court or
whether as a result of the same delay in delivering the judgment the court’s grasp of the evidence given
in the case resulted in an unfair or improper judgment.
The learned Judge in his judgment on the question of the quantum of damages felt that an award of
KShs 1.4 million as value of the motor vehicle at the relevant time would have been adequate in the
circumstances of this case. He had earlier on in his judgment disallowed the claim of KShs 20 000 per
day as damages claimed subsequent to the incident. We have stated hereinabove that the decision to
reject the claim of KShs 20 000 per day as claimed under paragraph 11 of the plaint was proper and
based on sound law. We need not go into that anymore. In coming to the figure of KShs 1.4 million as
what he
Page 204 of [2007] 1 EA 190 (CAK)

would have awarded had the appellant succeeded, the learned Judge considered the report by Hannington
Gaya and the report by Joshua Matheka (PW8), who was also a motor vehicle assessor. He accepted the
assessment made by Hannington Gaya and hence the would-be award of KShs 1.4 million. In coming to
that conclusion, the learned Judge considered amongst other things, the photographs of other vehicles
stating:
“And, finally if what one gathers from the photographs of the other motor vehicles owned by the plaintiff is
anything to go by, the subject motor vehicle if at all in service, cannot have been valuable.”

We have referred to the learned Judge’s reliance on the evidence about these other two vehicles which
were not in issue before him. It does appear that this extraneous evidence lead the learned Judge into
considering the subject motor vehicle as unserviceable or of not much value at all. This was a
misdirection in law. Further, in considering and accepting Gaya’s valuation, he did not appear to have
given any allowances for the fact that Gaya did not see the vehicle in question but rather relied on
documents some of which were supplied by parties that did not give evidence in court such as DT Dobie.
The respondent insured the subject vehicle at KShs 4 million. There is, as one of the exhibits, exhibit
E, a handwritten note signed by Gicho in which he set out the value at KShs 4 million and set out the
annual premium at KShs 240 000. That is followed by a letter written to the appellant by Gicho dated 3
February 2000. That letter states at paragraph 2 as follows:
“On providing comprehensive insurance at a value of KShs 4 million we shall charge an annual premium of
KShs 240 580. We have agreed to give you a flat rate of 6% as we would also wish to provide cover to the
rest of your fleet and other property as discussed.”

It is upon that persuasion that the appellant accepted to insure his vehicles with the respondent and the
appellant paid the respondent the total premium that was to attract the same insurance. The policy says
that the vehicle was insured for a sum of KShs 4 million with excess of KShs 100 000 maximum.
Matheka valued the vehicle at KShs 4 200 000 in January 2000. That was some six months before the
incident occurred. He saw the vehicle and although the learned Judge felt he was attempting to mislead
the court when he said that the year of registration was 1996 whereas it was 1990, what the record says is
that he recorded that the motor vehicle was manufactured in 1990 and although he could not rule out the
possibility of the Odometre having gone round, he felt the reading on it was genuine.
On our own, and considering the evidence and the need to uphold agreements between the parties, we
do award the entire amount that was insured less the excess which is allowed at maximum KShs 100 000.
Thus, the award will stand at KShs 3 900 000.
From what we have stated above, it is possible that the delay in delivering judgment which was from
15 March 2002 when the submissions were made by the counsel in the case and also written submissions
were filed to 28 February 2003 when judgment was delivered which is eleven and a half (111/2) months
could have interfered with the learned Judge’s grasp of the entire case that was before him. However, we
are of the view that in general, his judgment appears to have put into consideration all the salient aspects
of the case. Further, and in any event, although Order XX, rule 1 states that in suits where a hearing is
necessary, the court, after the case has been heard, shall pronounce judgment in
Page 205 of [2007] 1 EA 190 (CAK)

an open court, either at once or within 42 days from the conclusion of the trial of which due notice shall
be given to the parties or their advocates, there is no provision as to the consequences of failure by the
court to comply with the same rule. This Court considered a similar situation in the case of Nyagwoka
Ogora alias Kennedy Kemoni Bwogora v Francis Osoro Maiko civil appeal number 271 of 2000 (UR)
and had the following to say:
“The real question is what is the consequence of non-compliance therewith? No doubt that rule is an
important one in the expeditious dispensation of justice. And it is made to be obeyed. However, if
non-compliance with the rule were to have the effect contended for by the appellant, we think the overall
result would be more injustice than justice to the parties. A lot of time and resources spent in litigation would
come to naught if judgments delivered after the expiry of 42 days were to be voided or declared void ipso
facto. The rule cannot and in our view could not have been intended to deprive a trial Judge of his jurisdiction
to write and pronounce judgment in a case he has heard. In our considered view, while non-compliance with
the rule and particularly persistent non-compliance or inordinate delay in compliance should call for censure
of the judicial officer concerned from those in-charge of judicial administration, it should not be a ground for
vitiating a duly delivered judgment. Being of that persuasion we would reject ground 1 of appeal.”

That is the law. Whereas we feel the lengthy delay here was not warranted and would urge judicial
officers involved in the hearing of cases including applications to ensure compliance with Order XX, rule
1, we feel the same as we felt in Ogora’s case (supra) that it would create injustice and confusion in the
court corridors if non-compliance were to be met with orders declaring such judgments or rulings void. In
this case, as we have stated, the effect of the delay is in our view, minimal and we have dealt with the
same in this judgment. We need to say no more.
In the result, save for the claim for loss of earnings at the rate of KShs 20 000 per day which was
rightly dismissed, this appeal is allowed. The appellant is awarded KShs 3 900 000 being the sum insured
less the excess payment of KShs 100 000. The sum awarded will attract interest at the court rate from the
date the suit was filed in court till payment in full. The appellant is awarded 2/3 (two thirds) of the costs
of the appeal. Judgment accordingly.
For the respondent:
Mr Fraser
For the appellant:
Information not available

Mohammed v Soor
[2007] 1 EA 205 (CAK)

Division: Court of Appeal of Kenya at Nairobi

Date of ruling: 16 March 2007
Case Number: 750/04
Before: Bosire, Githinji and Waki JJA
Sourced by: LawAfrica
 Sourced by: LawAfrica
Summarised by: R Rogo

[1] Civil Procedure – Contempt proceedings – Right of the contemnor to be heard in court.
[2] Court of Appeal Rules – Factors to consider in application for stay pending appeal – Whether
jurisdiction is a frivolous issue.
Page 206 of [2007] 1 EA 205 (CAK)

Editor’s Summary
The parties contracted a civil marriage in 2000. However, they separated after serious matrimonial
differences and custody of the child was granted to the applicant, with reasonable access allowed to the
respondent, on alternate weekends on Saturday and Sunday and on the other weekends to have access on
Fridays between 1pm and 6pm. The respondent appealed against the orders and this was dismissed
leading to a second appeal in the Court of Appeal. The respondent further sought leave ex parte to file
contempt proceedings against the applicant on the grounds that the respondent had removed the child
from the court’s jurisdiction. Accordingly, warrants of arrest were issued to the International Police
Organisation (Interpol) for execution on the applicant in Uganda. Hence the applicant filed this appeal
seeking stay of execution and further proceedings pending the determination of the appeal on the
grounds, inter alia, that the orders of the Superior Court were without jurisdiction since the complaint
was against disobedience of an order of the Magistrate’s Court and that the leave could only have been
sought in the High Court through an ex parte miscellaneous application but not through the notice of
motion.
Held – The principles that guide the court in considering applications under rule 5(2)(b) of the Court of
Appeal Rules are now well settled. The applicant in order to succeed must satisfy the court that the
appeal or intended appeal is an arguable one, that is, that it is not a frivolous appeal. Secondly, that if an
order of stay or injunction as the case may be is not granted, the appeal, were it to succeed, would have
been rendered nugatory by the refusal to grant the stay or the injunction. (Reliance Bank Limited (in
liquidation) v Norlake Investments Limited [2002] LLR 3659 (CAK) followed).
The issue of jurisdiction intended to be argued in the appeal is not a frivolous one. Jurisdiction is
everything. Without it no court or tribunal can make any valid orders. (National Hospital Insurance Fund
Board Management v Boya Rural Nursing Home Limited [2005] LLR 4458 (CAK) followed).
There was no express order made in the case before the Children’s Court about the child leaving the
court’s jurisdiction. A contemnor who appeals against an order committing him for contempt on the
ground of lack of jurisdiction in the court to make the original order has a right to be heard. (Gordon v
Gordon [1904] P 163 CA followed; Hadkinson v Hadkinson [1952] 2 All ER 567 distinguished).
The Children’s Act under which the original case was heard and determined is a relatively new and
special enactment whose provisions have yet to be subjected to extensive judicial interpretation. That is
why the court deprecated the summary rejection of the appeal before the Superior Court and ordered that
it be heard on its merits.
The warrant directs that the applicant be arrested and brought to court “together with the child Simran
Kaur Soor”. The fate of the mother and child is intertwined. Both will lose their liberty and it is
irretrievable once lost whether or not the intended appeal succeeds. There is no certainty when the
intended appeal is likely to be heard. It is also not unfounded that the applicant may lose her employment
and the very source of support for herself and her child.
Application granted.
Page 207 of [2007] 1 EA 205 (CAK)
Cases referred to in ruling
(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Gordon v Gordon [1904] P 163 CA – F
National Hospital Insurance Fund Board Management v Boya Rural Nursing Home Limited [2005] LLR
4458 (CAK) – F
Reliance Bank Limited (in liquidation) v Norlake Investments Limited [2002] LLR 3659 (CAK) – F

United Kingdom
Hadkinson v Hadkinson [1952] 2 All ER 567 – D

Ruling
Bosire, Githinji and Waki JJA: The short matter that is brought before us is to determine, as sought by
the applicant, whether we should make the following orders:
(1) A stay of execution of the order and ruling of the Honourable Justice Kubo issued on 22 November
2006 in High Court civil case number 10 of 2005 and all consequential orders pending the hearing
and final determination of the intended appeal.
(2) An order staying all further proceedings in the Superior Court in High Court civil case number 10
of 2005 pending the hearing and final determination of the intended appeal.
The orders are sought under rule 5(2)(b) of the rules of this Court and the principles that guide the court
in considering such applications are now well settled. The applicant in order to succeed must satisfy the
court that the appeal or intended appeal is an arguable one, that is, that it is not a frivolous appeal.
Secondly, that if an order of stay or injunction, as the case may be, is not granted, the appeal, were it to
succeed, would have been rendered nugatory by the refusal to grant the stay or the injunction – see
Reliance Bank Limited (in liquidation) v Norlake Investments Limited [2002] LLR 3659 (CAK).
The brief background to the application, as far as we can gather from the record, is this:
The applicant, Fatima Ali Mohamed (Fatima) was a young girl professing the Muslim religion when
she met the respondent, Harbans Singh Soor (Harbans), a member of the Sikh community, and they were
married in the year 2000. Their respective parents did not apparently approve of their union and that is
why the two contracted a civil marriage under the Marriage Act in Sheria House. In June 2002, the two
were blessed with a daughter, Simran Soor or as Harbans prefers to call her, Simran Kaur Soor (Simran).
Within the year however, serious matrimonial differences, centred mainly on religion, culture, economics
and personal conduct arose between the two and Fatima moved out of the matrimonial home to return to
her parents in February 2003, effectively separating herself from the marriage. She contemplated filing
for divorce but
Page 208 of [2007] 1 EA 205 (CAK)

changed her mind. Instead she went before the Children’s Court in September 2003 and sought orders
for:
(a) maintenance for the child, Simran;
(b) custody of the child;
(c) return of the child’s birth certificate.
Harbans responded to the claim with a counter-claim of his own that the custody, care and control of the
child should be given to him, and that Fatima should contribute to the child’s maintenance. The matter
was heard before Mrs JE Ragot, Resident Magistrate, who on 30 September 2004 found for Fatima and
made the following orders:
“(1) That the custody of the child Simran Soor be and is hereby granted to the plaintiff with reasonable
access allowed to the defendant as shall be agreed between the parties and if such agreement cannot be
reached, each party is granted leave to apply. Access to be as earlier agreed on with leave to apply to
either party.
(2) That the defendant do pay the school fees and all school related expenses for the child Simran Soor.
(3) That the defendant do pay to the plaintiff a sum of KShs 6 000 every month towards the child’s
expenses.”

Reference made in the order to “access to be as earlier agreed” was an interim order made in the course
of hearing of the suit whereby Harbans would have access to the child on alternate weekends on Saturday
and Sunday, and on the other weekends to have access on Fridays, between 1pm to 6pm. The venues for
access were also agreed on.
Harbans was aggrieved by the ruling of Mrs Ragot and so preferred an appeal to the Superior Court
being High Court civil appeal number 10 of 2005. That appeal was however summarily dismissed by
Koome J on 18 May 2005 but, still undaunted, Harbans sought a reversal of the decision before this
Court. He succeeded in doing so, and on 10 February 2006, this Court made an order that the
memorandum of appeal before the Superior Court be admitted and the appeal be heard on its merits.
There were also other skirmishes between the parties, which need not concern us here, relating to
execution process, the propriety of the Children’s Court proceedings and a review of the access order, but
the main appeal was eventually set down for hearing on 30 November 2006.
On the 22 November 2006, one week before the hearing date, Harbans filed a “notice of motion”
within the appeal which was expressed to be “ex parte” seeking leave to cite Fatima for contempt of
court and to commence proceedings for her commitment to civil jail for six months. The application was
expressed to have been brought under “section 3 and 3A of the Civil Procedure Act, Order L, rule 1 of
the Civil Procedure Rules, section 5 of the Judicature Act.” The rubric “all other enabling provisions of
the Law” was also thrown in. Further orders were sought in the application as follows:
“(6) That the child Simran Kaur Soor be returned to Kenya within the jurisdiction of this Honourable Court
before the 28 November 2006.
(7) That this case be mentioned on the 29 November 2006 to ascertain whether the respondent has
complied with the Court Order.
Page 209 of [2007] 1 EA 205 (CAK)
(8) That the child Simran Kaur Soor shall not be removed from the jurisdiction of this Honourable Court
until the civil appeal herein is fully heard and determined, without the permission and/or authority of
this Honourable Court.
(9) That this Honourable Court be pleased to issue any other or further Order as it deems fit, to ensure
and/or enforce compliance with the Court Order dated 30 September 2004 and issued on the 18 of
November 2004.”

It is common ground that the application was placed before Kubo J on the same day and that the
following orders were issued ex parte:
“(1) Matter certified urgent.
(2) Leave granted to the applicant to commence contempt proceedings. Applicant to take a date in the
registry for inter partes hearing of prayers 3, 4, 5 and 8 of the notice of motion and serve the
respondent.
(3) Respondent to return the subject child to Kenya by 28 November 2006 and to appear before the High
Court on 29 November 2006 when this matter will be mentioned.”

Upon being served with the orders Fatima was alarmed. She protested that the orders were improperly
made and made without giving her an opportunity of being heard. She filed a notice of motion of her own
on 27 November 2006 seeking to have the orders discharged, set aside or stayed pending the hearing of
the notice of motion inter partes. The matter was then placed before Kubo J for directions on the hearing
of Fatima’s application and the learned Judge directed that the application and any other arguments be
considered at the scheduled hearing of the main appeal on 30 November 2006. On that day however, the
respondent’s counsel objected to the hearing of the appeal or any other matter on the ground that the
child was out of the jurisdiction of the court and that Fatima was in contempt of court and could not be
heard on any matter before compliance with the orders issued on 22 November 2006. In a reserved ruling
made on 4 December 2006 Kubo J agreed with the respondent and held that Fatima and her advocate
could not be heard before she complied with the orders of 22 November 2006. Warrants of arrest were
issued three days later, on 7 December 2006 and were handed over to the International Police
Organisation (Interpol) for execution in Uganda. Fatima had hit a dead end and that is when she came
running to this Court, as stated earlier, on 14 December 2006.
We have already restated the principles which obtain in applications under rule 5(2)(b). In order to
satisfy us on the first test, learned counsel for Fatima, Mrs Thongori informed us that the intended appeal
will raise issues of jurisdiction and other issues of constitutional nature. She submitted in the first place
that the orders issued by the Superior Court were without jurisdiction since the complaint was against
disobedience of an order of a Magistrate’s Court. As such leave under section 5 of the Judicature Act
could only have been sought in the High Court through an ex parte miscellaneous application but not
through a notice of motion filed before an Appellate Court. At all events, a notice of motion by its nature
can only be heard with notice to the other side or inter partes, and again there was no jurisdiction to issue
ex parte orders without giving any reasons for dispensing with the respondent’s presence. As it is, leave
was given on the same motion that seeks committal for contempt and other orders. It will further be
argued on appeal that there was no legal basis for making ex parte mandatory orders since the decree
issued by the Magistrate’s Court did not bar Fatima from taking the child outside the jurisdiction of any
court. The
Page 210 of [2007] 1 EA 205 (CAK)

Children’s Act itself, in her view, was not averse to emigration of children. In point of fact Fatima had no
choice in the matter. That is because she was in full time employment with M/S Bidco Oil Refineries
Limited since February 2003 where she handled the company’s marketing and communications docket
throughout East Africa. On 15 November 2006, she was transferred to Bidco Uganda Limited and had to
report forthwith. She could not therefore leave behind the 4 year old daughter whose custody and primary
care the court had reposed on her subject only to limited access by the respondent. It was in the best
interests of the child as the Children’s Act provides. On previous occasions, she stated, she had travelled
with the child abroad without objections from the respondent whose rights of access were subsequently
compensated. It was partly due to such difficulties that the applicant had sought a variation of the access
order from the Children’s Court but the matter was still pending. In Mrs Thongori’s view, the rights of
the applicant to a hearing before the drastic orders were issued were flouted and the Superior Court acted
in excess of its powers or without jurisdiction. The intended appeal was therefore not frivolous.
As to the nugatory aspect, Mrs Thongori submitted that there was a warrant for the arrest of Fatima
which may be executed anytime in which case she will lose her liberty before the appeal is heard thus
rendering any subsequent success of it fatuous. She also submitted that the applicant would lose her job
upon being incarcerated and consequently the child would lose her primary source of support.
For his part, learned counsel for the respondent Mr Oseko did not see any difficulty with jurisdiction.
According to him, once a suit, whether original or at appellate stage, was in the Superior Court, that
Court had the jurisdiction to punish for contempt under section 5 of the Judicature Act. As to whether the
court acted in excess of its power by issuing mandatory orders, Mr Oseko submitted that there was
sufficient legal basis for the orders issued. That is because the decree issued by the Children’s Court was
not absolute and the applicant could not therefore make unilateral decisions on access to the child by the
respondent. There was therefore no arguable appeal and the case was on all fours with Hadkinson v
Hadkinson [1952] 2 All ER 567, a decision of the Court of Appeal in England. The best the applicant
could do was return to the Superior Court and explain herself there instead of pursuing a worthless
appeal.
As to the nugatory aspect, Mr Oseko submitted that the appeal could not be rendered nugatory
whether it succeeded or not because the applicant has nothing to lose since the child is outside the
jurisdiction of the court.
We have carefully weighed the respective positions taken by the parties in this matter and we think,
with respect, that the issue of jurisdiction which is intended to be argued in the appeal is not a frivolous
one. Jurisdiction as this Court has stated before, is everything. Without it no court or tribunal can make
any valid orders. In a similar matter decided recently by this Court; National Hospital Insurance Fund
Board of Management v Boya Rural Nursing Home Limited [2005] 4458 (CAK) the court stated:
“The respondent had invoked the jurisdiction of the Superior Court under section 5 of the Judicature Act to
punish for contempt. Under that section the Superior Court exercises jurisdiction as for the time being is
possessed by the High Court of Justice of England. Thus, the applicable procedure is the English procedure.
By Order 52 rule 3(1) of English RSC (Supreme Court Practice 1997 – Volume I part 1) an application
Page 211 of [2007] 1 EA 205 (CAK)
for committal is made by motion after leave is granted which notice of motion must be served personally on
the respondent even when he is legally represented. The rule provides:
‘3(1) When leave has been granted under rule 2 for an order of committal, the application for the order must
be made by motion to a Divisional court and unless the Court or Judge granting leave has otherwise
directed, there must be at least 8 clear days between the service of the notice of motion and the day
named therein for the hearing.
(2) Unless within 14 days after leave was granted the motion is entered for hearing the leave shall lapse.
(3) Subject to paragraph (4) the notice of motion, accompanied by a copy of the statement and affidavit in
support of the application for leave under rule 2, must be served personally on the person sought to be
committed.
(4) Without prejudice to the powers of the Court or Judge under Order LXV, rule 4, the Court or Judge
may dispense with service of the notice of motion under this rule if it or he thinks it just to do so.’”

That procedure does not appear to have been strictly followed in this matter with the result that the
applicant appears to have been condemned unheard. As this Court further stated in the NHIF Board case
(supra):
“The consequence of failure to file a formal application for committal is that the appellant and its officers
were denied an opportunity to know what they were accused of and the supporting evidence and more
fundamentally an opportunity to reply to the accusations through a replying affidavit or oral submissions at
the hearing. The denial of an opportunity to be heard is a serious breach of the rules of natural justice.”

We are fully aware of the decision in the Hadkinson case (supra) and the profound dicta propounded
therein which go to the very root of the administration of justice. The alleged contemnor in that case had
flouted an express order of the court that she should not remove the child, the subject matter of the
dispute, outside the jurisdiction of the court. It is a case which has been followed and applied in this
country in several decisions where similar orders were flouted. However, we are told there was no
express order made in the case before the Children’s Court about the child, Simran, leaving the court’s
jurisdiction.
It is apparent in this case that the learned Judge was of the view that the alleged contemnor who had
made an application to set aside the order alleged to have been disobeyed could not be heard on such
application unless and until she obeyed the order first then question it later. With respect, the learned
Judge does not appear to have appreciated the full import of the Hadkinson case or that he was seized of
any discretion in the matter. In that case Lord Denning LJ stated:
“It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave
considerations of public policy. It is a step which a court will only take when the contempt itself impedes the
course of justice and there is no other effective means of securing his compliance...”

And later at page 575:

“I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a
bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of
justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders
which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or
good reason is shown why it should not be removed.”
Page 212 of [2007] 1 EA 205 (CAK)

Mr Oseko was indeed of similar view before the commencement of the hearing of the application before
us and intended to raise a preliminary point of law. We were in no doubt however that a contemnor who
appeals against an order committing him for contempt on the ground of lack of jurisdiction in the court to
make the original order, has a right to be heard – see Gordon v Gordon [1904] P 163, CA.
Finally we observe that the Children’s Act under which the original case was heard and determined is
a relatively new and special enactment whose provisions have yet to be subjected to extensive judicial
interpretation. That is why this Court deprecated the summary rejection of the appeal before the Superior
Court and ordered that it be heard on its merits.
We need not express ourselves further on the issue of jurisdiction as we are of the view that it is
arguable in the intended appeal. Nor do we wish to explore the other issues raised in that regard by the
applicant since, as we have stated before, one favourable issue is sufficient to avail the applicant. The
second hurdle must however be surmounted. Will the intended appeal be rendered nugatory if we do not
grant the order sought at this stage?
We think undoubtedly it would. The warrant issued for arrest of the applicant could in all probability
have been executed by now if we did not grant interim orders suspending it. The warrant directs that the
applicant be arrested and brought to court “together with the child Simran Kaur Soor”. The fate of the
mother and child is intertwined. Both will lose their liberty and it is irretrievable once lost whether or not
the intended appeal succeeds. There is no certainty when the intended appeal is likely to be heard. It is
also not unfounded that the applicant may lose her employment and the very source of support for herself
and child.
For those reasons we think the application before us is well merited. Orders shall be and are hereby
granted as prayed. Costs of the application shall be in the intended appeal.
For the appellant:
Information not available
For the respondent:
Mr Oseko

Musah v Muwonge
[2007] 1 EA 212 (SCU)

Division: Supreme Court of Uganda at Mengo

Date of judgment: 18 October 2006
Case Number: 11/04
Before: Tsekooko, Karokora, Mulenga, Kanyeihamba and Katureebe
JJSC
Sourced by: LawAfrica
Summarised by: E Dimba
[1] Appeal – Substantive appeal struck out – Whether a cross-appeal was viable – Rules 86(1) and 90 –
Supreme Court Rules.
Page 213 of [2007] 1 EA 212 (SCU)

Editor’s Summary
The respondent’s claim for the suit property was dismissed with costs by the High Court. The respondent
appealed to the Court of Appeal which decided the appeal in favour of the respondent and granted him
the reliefs he had sought in the High Court with costs. However, the Court neither assessed the damages
nor remitted the case to the trial court for the assessment of those damages. The appellant was not
satisfied with the decision and order of the Court of Appeal whereupon he filed an appeal in the Supreme
Court. The respondent cross-appealed for an order regarding assessment of the general damages.
The competence of the appeal was objected to on grounds that it was filed out of time and without
leave of court whereupon the objection was upheld and substantive appeal was struck out with costs to
the respondent.
The Court sought to determine whether the cross-appeal was still viable after the substantive appeal
had been struck out.
Held – The Rules of the Court did not distinguish between a substantive claim and a counter-claim. The
justifications of any claim are the same as those of the counter-claim. The Rules which govern the filing,
replies, defences and disclosure about a substantive appeal are the same as those which relate to a
counter-claim. One of the reasons for treating a cross-appeal as if it were an appeal itself is to avoid
multiplicity of suits.
Per Tsekooko JSC – Rule 86(1) of the rules of the Supreme Court gives a respondent a right to lodge a
cross-appeal. A cross-appeal is an appeal against the decision of the Court of Appeal. The only
pre-requisite is the existence of an appeal which enables a respondent to cross-appeal by notice. It is
immaterial that the appeal must be a valid one so as to give rise to the institution of a cross-appeal. In
terms of sub-rules (1) and (2) of Rule 90, a cross-appeal does not die with the death of an appeal.
The Court of Appeal ought to have exercised its powers under rule 31 of the Court of Appeal rules to
assess the damages itself or ordered to have the case remitted to the trial court with directions that such
assessment be made.
Per Tsekooko JSC – It was not proper for the Court of Appeal to award unqualified damages without
assessing the same or giving a direction for their assessment by the High Court. If the Court were to
award general damages either party would be deprived of the opportunity of challenging such an award
in the event that he is dissatisfied with the award. Remitting the matter to the High Court could lead to an
appeal by a dissatisfied party resulting in a review of the award by a higher tribunal.
Cross-appeal allowed, case remitted to the High Court for assessment of damages.

No cases referred to in judgment

Judgment
Tsekooko JSC: I have had the benefit of reading in advance the judgment prepared by my learned
brother, Kanyeihamba JSC. I agree with him that the cross-appeal should succeed and the matter be
remitted to the High Court for assessment of damages.
Page 214 of [2007] 1 EA 212 (SCU)

My learned brother has given the background to the appeal and the cross-appeal.
We struck out the main appeal because it was incompetent as it had been lodged out of time without
leave of this Court. We then asked counsel for both sides to address us on the viability of the
cross-appeal, that is to say, whether after striking out the substantive appeal, the cross-appeal remained
valid for us to hear and determine it on merit. Mr Tibaijuka contended that we had jurisdiction while Mr
Kuguminkiriza was not certain. Court adjourned the cross-appeal and ordered counsel to put their
arguments in writing. When the matter came up for hearing on 19 December 2005, we learnt that counsel
had filed their respective written arguments; so we adjourned the matter for our decision to be given on
notice. We now give the decision.
The only ground in the notice of appeal was framed as follows:
“The learned justice and lady justices of Appeal erred in law and fact, in that they granted to the present
respondent ‘the reliefs sought in the High Court’ but inadvertently omitted to direct the trial court to assess
the General Damages payable by the above named appellant to the above named respondent, or alternatively,
to make the assessment itself.”

The respondent prayed for an order that, in order to avoid a multiplicity of actions, this Court itself
should assess the general damages payable to the respondent, or alternatively that we make a direction on
the matter.
Although we asked both counsel to address us on the viability of the cross-appeal, Mr Tibaijuka and
Company Advocates for the cross-appellant did not in the written submissions address us on that point.
Counsel had, however, stated on 17 May 2005, that the cross-appeal is viable. On the other hand, Messrs
Kuguminkiriza and Company Advocates, for the cross–respondent in their written arguments challenged
the viability of the cross-appeal. According to learned counsel since the substantive appeal was struck
out, this means that:
“There was technically no appeal in court and hence the cross-appeal that was brought by the respondent fell
by the weight of the main appeal.”

According to counsel, the cross-appeal could only survive where the substantive appeal is withdrawn.
Counsel relied on rule 88 for this view.
With respect I do not quite understand the reasoning of Mr Kuguminkiriza when he contends that the
cross-appeal fell by the weight of the main appeal. Assuming that learned counsel meant that the
cross-appeal was struck out along with the main appeal, I cannot accept this argument. I do not think that
the provisions of rule 88 assist him as he contends in his written arguments.
Supposing we had heard the main appeal and supposing we dismissed it, would that amount to a
dismissal of the cross-appeal? The answer is no. According to rule 86(1) of the Rules of this Court:
“A respondent who desires to contend at the hearing of the appeal in the Court that the decision of the Court
of Appeal or any part of it should be varied or reversed, either in any event or in the event of the appeal being
allowed in whole or in part, shall give notice to that effect, specifying the grounds of his or her contention and
the nature of the order which he or she proposes to ask the court to make, or make in that event as the case
may be.”

This is the provision which gives a respondent a right to lodge a cross-appeal. It is an appeal against the
decision of the Court of Appeal. Obviously, the only
Page 215 of [2007] 1 EA 212 (SCU)

prerequisite is the existence of an appeal which enables a respondent to cross-appeal by notice. I do not
think that it is material that the appeal must be a valid one so as to give rise to the institution of a
cross-appeal.
It seems to me that in terms of sub-rules (1) and (2) of rule 90, cross-appeal does not, so to speak, die
with the death of an appeal.
Sub-rule(2) of the rule reads:
“90 (2) if it (cross-appeal) is not withdrawn, the cross-appeal shall proceed to hearing and the
provisions of these Rules shall apply as if the cross-appellant were an appellant and the
appellant a respondent.”

I think that the cross-appeal is viable and should be determined on its merits. I now turn to the merits of
the cross-appeal. In prayer (d)(ii) in his amended plaint the respondent prayed for general damages
against the appellant for breach of contract. Consequently, the third issue framed for trial read as follows:
“Whether the plaintiff is entitled to the remedies prayed for.”

After the case had been heard in the High Court, the respondent’s counsel in his written submissions
before that Court, prayed for a sum of UShs 10 million as damages for breach of contract. And, on
appeal, in prayer (iii) in his memorandum of appeal in the Court of Appeal, the respondent sought an
order granting “all the remedies prayed for in his submissions in the High Court.”
This included general damages.
In his lead judgment with which the other members of the Court of Appeal agreed, Engwau, JA stated:
“In the result, I would allow the appeal and grant the appellant the reliefs sought in the High Court with costs
here, and in the court below.”

Unfortunately, when the High Court dismissed the respondent’s suit, the learned trial Judge omitted to
consider what he would have awarded as damages had the respondent succeeded in the suit at the trial.
That is what creates the present problem.
Mr Tibaijuka argued, quite correctly in my opinion, that the phrase “the reliefs sought in the High
Court” appearing in the Court of Appeal’s award is vague and leaves the damages payable to the
respondent unquantified; and there is, therefore, need for those damages to be assessed.
Under normal circumstances, the Court of Appeal ought to have exercised its powers under rule 31(1)
of the Court of Appeal Rules, to remit the case to the High Court with a direction that the latter court
itself assess the general damages payable to the respondent in exercise of the powers conferred upon it by
section 11 of the Judicature Act (Chapter 13). It was not proper for the Court of Appeal to award
unquantified damages without assessing the same or giving a direction for their assessment by the High
Court.
Mr Tibaijuka argued that rule 30 of the Rules of this Court and section 7 of the Judicature Act are
authority for the view that the options which were available to the Court of Appeal are available to this
Court. He submitted that we can either remit the case to the High Court with a direction that the court
assess the damages payable to the respondent, or we can make the necessary assessment ourselves. He
prayed that we take the latter course and award his client at least UShs 10 million.
Page 216 of [2007] 1 EA 212 (SCU)

On his part Mr Kuguminkiriza claimed that we have no power to either remit the case to the High
Court nor to assess damages ourselves. He asked us to dismiss the cross-appeal with costs. Learned
counsel made these contentions without apparently appreciating that our rule 30 and section 7 of
Judicature Act give us the necessary powers. In effect Mr Kuguminkiriza did not challenge the merits of
the cross-appeal and, therefore, he never commented on the quantum of damages. I have held that Mr
Kugumikiriza’s objections to the competence of the cross-appeal has no merit. Since the Court of Appeal
properly allowed the cross-appellant’s appeal in that Court, the question is what orders should be made.
I think that this cross-appeal ought to succeed. However, I cannot accede to the submission of Mr
Tibaijuka that we should assess general damages ourselves even though I regret this for the reason that
the case has been in the court system for eight years. What the cross-appellant wants are general
damages. If we award general damages ourselves we would deprive either party of the opportunity of
challenging such an award in the event he is dissatisfied with the award. Remitting the matter to the High
Court could lead to an appeal by a dissatisfied party resulting in a review of the award by a higher
tribunal. In these circumstances I agree that we remit the matter to the trial court to assess damages. This
will be done by same trial Judge or his successor.
I would award the cross-appellant the costs of this cross-appeal and his costs in the Court of Appeal.
Cost in the High Court should be to the cross-appellant to be taxed after the damages are awarded.
As other members of the court agree, it is ordered accordingly.
Kanyeihamba JSC: The facts and background of this cross-appeal may be summarised as follows:
The appellant made representations to the respondent that he owned registered land comprised in
Kibuga Block B plot number 484, (hereafter referred to as the suit land) and that he possessed a
certificate of title to that land. Consequently, the respondent bought the suit land from the appellant for a
money consideration as evidenced in written exhibits P1 and P2. The respondent paid the requisite
deposit in the sum of UShs 650 000. Later, it transpired that the appellant did not have the certificate of
title and claimed that it had got lost during the war. In due course, through the efforts of the respondent, a
special certificate of title (exbihit 4) was procured.
When the respondent offered the balance of the purchase price for the suit land and asked for the
transfer of the suit land to him by the appellant, the latter refused. A dispute arose and after some
correspondence between the parties, the respondent sued the appellant in High Court civil suit number
559 of 1998. There followed some protracted proceedings including the amendment of the plaint to join
in a second defendant, M/S Good ways Trustees Limited which had lodged a caveat against the suit
property claiming to have bought it also. Later, the second defendant abandoned its claim. The appellant
was not present at the trial in which the respondent and his witness gave evidence. Nevertheless, the trial
court dismissed the respondent’s claim with costs.
The learned trial Judge did not state any reliefs he would have given had the suit succeeded. Be that as
it may, the respondent appealed to the Court of Appeal in civil appeal number 77 of 2001. That Court
decided the appeal in favour of the respondent and granted him “the reliefs sought in the High Court
Page 217 of [2007] 1 EA 212 (SCU)

with costs here and in the Court below.” The court neither assessed the damages or remitted it to the trial
court for the assessment of those damages. The appellant was not satisfied with the decision and order of
the Court of Appeal. He filed this appeal. The respondent in turn cross-appealed for an order regarding
the assessment, of general damages. On 17 May 2005, when the substantive appeal came up for hearing,
Mr Tibaijuka Ateenyi, counsel for the appellant objected to the competence of the appeal, because it was
filed out of time and without leave of court. We upheld the objection and struck out the substantive
appeal with costs to the respondent. We then ordered the parties to file written submissions on
cross-appeal under rule 93 of the Rules of this Court. Mr Kuguminkiriza and Mr Tibaijuka represented
the cross-appellant and cross-respondent respectively, and both have filed written submissions.
There is only one ground of the cross-appeal framed as follows:
“The learned Justice and Lady Justices of Appeal erred in law and fact in that they granted to the present
respondent ‘the reliefs sought in the High Court’ but inadvertently omitted to direct the trial court to assess
the general damages payable by the above named appellant to the above named respondent, or alternatively to
make the assessment themselves.”

The pleadings in this cross-appeal also disclose that a plaint involving the same suit land is or was
pending determination in the High Court before Rubby Aweri Opion J.
During their submissions before us on 17 May 2005, counsel asked this Court to find first whether a
cross-appeal is still viable even after a substantive appeal has been struck out by a court. It is my view
that the Rules of this Court do not distinguish between a substantive claim and a counter-claim. For all
intents and purposes, the justifications for any claim are the same as those of a counter-claim. The rules
which govern the filing, replies, defences and disclosures about a substantive appeal are the same as
those which relate to a counter-claim. One of the reasons for treating a cross-appeal as if it were an
appeal itself is to avoid multiplicity of suits.
Thus, rule 90 of the Rules of this Court provides:
“90 (2) If it is not withdrawn, the cross-appeal shall proceed to hearing and the provisions of these
Rules shall apply as if the cross-appellant were an appellant and the appellant a respondent.
(3) If an appeal is withdrawn under rule 89 within fourteen days after the date when the appeal was
instituted, any respondent who has not lodged a notice of cross-appeal is entitled to give notice
of appeal notwithstanding that the time prescribed by rule 71 has expired, if he or she does so
within fourteen days after the date when the appellant’s notice of withdrawal was served on him
or her.”

Mr Kuguminkiriza, counsel for the appellant made submissions on the viability of the cross-appeal. He
contended that it is not viable because the Rules of this Court are silent on the fate of a cross-appeal
following the withdrawal or the striking out of a substantive appeal. However, considering the provisions
of rule 90 which I cited above, counsel for the appellant is mistaken in this regard. Mr Tibaijuka, counsel
for the respondent did not make submissions on the competence of the counter-claim. He assumed that it
is viable.
In my opinion, the withdrawal or striking out of a substantive appeal has no effect on the cross-appeal.
Page 218 of [2007] 1 EA 212 (SCU)

I will now deal with the merits of this cross-appeal.

In his written submissions, Mr Tibaijuka, stated, correctly in my opinion, that following its decision,
the Court of Appeal ought to have exercised its powers under rule 31 of its rules to assess the damages
itself or ordered to have the case remitted to the trial court with directions that such assessment be made.
Counsel has not given this Court any reasonable ground why the cross-appellant did not take that course
of action and move the Court of Appeal to do either of the actions he has suggested. The pending
retirement of a Judge who was still hearing the case which he advances as a reason cannot alone cause
the transfer of the jurisdiction of the court. On the other hand, rule 30 of the Rules of this Court provides
that:
“on any appeal, the court may, so far as its jurisdiction permits, confirm, reverse or vary the decision of the
Court of Appeal with such directions as may be appropriate, or order the rehearing of the appeal (or
cross-appeal in this case) before the Court of Appeal and as the justice of the case demands, the court may
order a trial de novo... ”

Mr Kuguminkiriza did not submit on the merits of this cross-appeal and as already observed, he only
submitted on its viability and the competence of this Court to hear it. Nevertheless, in my opinion, this
Court has the jurisdiction to hear the cross-appeal. On the facts, evidence and submissions presented, I
would allow this cross-appeal. No reasonable grounds have been given for this Court to do what the
courts below ought to have done.
I would therefore order that the case be remitted to the High Court for assessment of general damages.
I would award the costs of this cross-appeal in this Court and the courts below to the cross-appellant.
Mulenga JSC: I had the advantage of reading in draft the judgment of my learned brothers, Tsekooko
and Kanyeihamba JJSC. I agree with them that the cross-appeal ought to succeed and that the case should
be remitted to the trial court for assessment of damages. I would also award costs here and in the courts
below to the cross-appellant.
Katureebe JSC: I have had the benefit of reading in advance the judgments of my learned brothers,
Tsekooko and Kanyeihamba, JJSC, and I agree with them that cross-appeal should succeed, for the
reasons given in their respective judgments.
I also agree that the matter be referred to the court for assessment of damages.
Karokora JSC: I have read in draft the judgment prepared by my learned brother, Dr Kanyeihamba JSC.
I agree with his reasoning and conclusion that the cross-appeal should be allowed. I would also agree
with the orders he has made to the effect that the case should be remitted to the High Court for
assessment of the general damages. I also agree with him that the cross-appellant should get the costs in
this Court.
For the appellant:
Mr Tibaijuka
For the respondent:
Messrs Kuguminkiriza

Musundi and others v Small Enterprises Finance Company Limited

 [2007] 1 EA 219 (HCK)

Division: High Court of Kenya at Nairobi

Date of judgment: 1 March 2007
Case Number: 1861/95
Before: Nyamu JA
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Contract law – Duty to act prudently or reasonably – Definition of this duty – Disadvantages of
principle of freedom to contract.
[2] Contract law – Intention of the parties – Whether the loan agreement is conclusive in determining
intention – Effect of a collateral contract.
[3] Contract law – Parol evidence rule – Applicability of the rule.

Editor’s Summary
The first and second plaintiffs were directors and guarantors of the third plaintiff, Alliance Tyres
Company Limited (“ATCO”) in relation to a loan of KShs 3 million from the defendant. It was agreed
that the loan was repayable after 8 years and was to attract an interest rate of 20% per annum. The
defendant later paid the entire sum directly to ATCO’s suppliers of machinery for use in ATCO’s tyre
retreading project, Vulcan Industrial Limited. However, the machinery was not delivered because it could
not be cleared and the project never took off. The defendant later appointed a receiver pursuant to a
debenture over the new machinery. Subsequently, the plaintiff filed this suit seeking a declaration that
the receivership was null and void and preventing the defendant from realising its securities namely
Bukhayo/Lupida/862, Isukha/Shirere/318 and Busotso/Shikoti/4258 on the grounds, inter alia, that the
defendant had blocked the release of the machinery from Mombasa and had frustrated the
implementation of the project. In its defence, the defendant stated that there was no privity of contract
between it and the first and second plaintiffs, the loan was not conditional on the success or
implementation of the project, and that the plaintiffs were the authors of their misfortune as they did not
fund to clear the container at the port.
Held – The loan agreement represents the contract between the parties and the pre-contract negotiations
and papers are extrinsic evidence and they cannot be used to contradict the formal terms as set out in the
loan agreement.
The intention of the parties was to record all the terms of the contract in the loan agreement and other
formal contracts. Thus, where the interpretation of the feasibility study or the Board paper conflicts with
the subsequent loan agreement the court is entitled to reject the documents or the terms of the feasibility
study or the Board paper which defeats the intention as expressed in the loan agreement. The plaintiffs’
contention that their liability to pay the loan was dependent on the success or implementation of the
project clearly conflicts with the terms of the loan agreement which provides for the payment of the
principal and interest on the 30th day of each month and by 84 equal monthly instalments. The project
was not programmed to make profits until after three years yet the only moratorium given by the loan
agreement is a grace period of
Page 220 of [2007] 1 EA 219 (HCK)

one year. The intention of the parties was that the loan was payable over the entire period stipulated save
for the grace period.
A collateral contact can only be proved where it neither alters nor adds to the whole agreement as
agreed by the parties or when the written contract is silent. In this case the loan agreement provides for
all the contentious points in this matter.
The intention of the parties in respect of each formal document is clear and does not need the use of
pre-contract documents or oral negotiations. Under the parol evidence rule, they cannot in the
circumstances be used to contradict the loan agreement.
The written contracts, namely the loan agreement, charges, guarantees and debentures speak for
themselves and it is not the function of the court to rewrite the contracts for the parties. The evidence of
the alleged frustration and representation was occasioned by the default of the plaintiff company and the
plaintiffs in clearing the machinery.
In obiter – The defendant lent the plaintiff KShs 3 million but is now claiming 40 million. However, the
project never took off even for a day and the parties intention to put in place a successful tyre retreading
business venture was ultimately never met because of the plaintiff’s inability to raise KShs 700 000 to
clear the machinery. On the other hand, the defendant could have lent the plaintiffs the KShs 700 000 to
ensure that the project takes off. The courts should in future develop a principle that notwithstanding the
written contracts between the parties, the law should imply an overriding duty for all the commercial men
and women and other entities to act in a prudent manner so as to achieve the overall intention for each
transaction. Where they fail below this overriding duty the court ought to intervene and adjudicate on the
principles of commercial prudence and morality.
In obiter – Unlike the duty to mitigate, the overriding principle based on commercial morality should be
imposed on all the parties. In this case, the plaintiff did not apply for the extra funds while the defendant
did not avail the funds. In the duty to mitigate, the aggrieved or innocent party is not under an obligation
to do anything other than in the ordinary course of business. In other words, a claimant need not take a
risk with his own money. However, the duty to act as a reasonable right thinking but prudent commercial
man and woman should be owed to parties in commercial contract and the duty should be much higher
and involves more some reasonable initiative by both parties in achieving the intention of the contract.
Where a contractually correct party fails to discharge this overriding duty, he ought to be disallowed
what he could have achieved if he had discharged this duty. Thus in this case the court would only allow
the recovery of the initial loan less the accrued interest. (Banco de Portugal v Waterlow [1932] AC 452
considered).
In obiter – In certain situations, the free reign of the principle of freedom of contract as defined in the
last century would not serve the interest of doing justice and small wonder in many jurisdictions
legislators have made inroads into the principle. Since the world has not manufactured enlightened
people nor has the gap of bargaining power between contracting parties necessarily been bridged in the
two centuries, there is need for further thought and intervention both statutory and by the courts under the
common law. (Printing and Numerical Registering Company v Sampson [1875] LR 19; Caesar Njagi
Kunguru v
Page 221 of [2007] 1 EA 219 (HCK)
Kenya Commercial Bank High Court civil case [Milimani] 1543 of 2000 considered).
In obiter – There is a case for changing course in commercial contract and for practitioners of law and
other stakeholders focusing on all possible alternatives in advance or as they occur instead of solely
focusing on what is sometimes a horrifying post-mortem of the problem based solely on the principle of
the freedom of contract. Freedom of contract though a major principle and not a side wind has shown its
ugly belly in this matter.
In obiter – There is need to evolve some overriding commercial morality principle to enable the court to
intervene even in the face of freedom of contract in situations such as these. The principle of freedom of
contract without an underlying commercial morality is like a train whose brakes are slowly failing with
each mile covered, it has inbuilt in it seeds of self-destruction. This explains the great interventions in
may jurisdictions by the legislature to rein in the freedom eg Business Premises Rent law, Rent
Restriction Laws, Laws on Housing and Mortgages and Policies Underpinning Housing Laws.
In obiter – Although counsel are aware of the reasons for the delay in finalizing this matter and are
therefore not complaining or blaming the court for the delay, it also brings into focus the need for
embracing case management in litigation and for the court to adopt an interventionist approach to the
matters before it and the need to ensure flexibility in designing a procedure suitable to each dispute and
to give a time schedule of activities. Had this been done when the matter was first filed, the advantages in
terms of costs and finality are now obvious. The outcome of this case although contractually correct,
must in future lead to a more realistic approach and recognition of the overriding principle.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Caesar Njagi Kunguru v Kenya Commercial Bank High Court civil case [Milimani] 1543 of 2000 – C
Housing Finance Company of Kenya v Palm Homes Limited and others Khamoni J 12 KLR 93
Kenya Commercial Finance Company Limited v Ngeny and another 2002 1 KLR 106

United Kingdom
Banco de Portugal v Waterlow [1932] AC 452 – C
Burchell v Bullard [2005] EWCA Civ 338
Printing and Numerical Registering Company v Sampson [1875] LR 19 – C

Judgment
Nyamu JA: The plaintiff’s claim is for an order that:
(a) The defendant be restrained from releasing its securities namely Bukhayo/Lupida/862
Isukha/Shirere/318 and Busotso/Shikoti/4258.
Page 222 of [2007] 1 EA 219 (HCK)

(b) The defendant does execute discharges in regard to the aforesaid securities namely
Bukhayo/Lupida/862, Isukha/Shirere/318 and Busotso/Shikoti/4258.
(c) That the suppliers do forthwith release the said retreading machinery to the plaintiffs and the
defendants do pay outstanding demurrage or storage charges from July 1994 to date.
(d) A declaration that the purported receivership is null and void.
(e) KShs 60 486 924 be paid to the third plaintiff being lost profits and expenses incurred on the
project.
(f) KShs 22 737 675-80 be paid to the first plaintiff being lost income from 1993 to date.
(g) Costs and interest of the suit.
On the other hand the defendant counter-claims against the plaintiffs as follows:
(i) A declaration that the defendant was and is entitled to exercise its power of appointment of
receiver under the debenture both at the commencement of this suit and after its determination.
(ii) A declaration that the defendant was/is entitled to exercise its statutory power of sale under the
charges both at the time the plaintiffs’ suit was instituted and after its determination.
(iii) A declaration that the defendant was and is entitled to recover the outstanding amount now
standing at KShs 36 470 319-10 as at 30 June 2002 together with interest thereon at commercial
rates from 30 day of June 2002 the date of the defence and counter-claim till payment in full.
(iv) KShs 36 470 319-10 plus interest thereon commercial rates.
(v) Costs of this suit.
(vi) Interest on (iv) and (v) above.
The first and second plaintiffs were the directors of the third plaintiff, Company Alliance Tyres Company
Limited (hereafter called ATCO). The first two plaintiffs were also guarantors of ATCO having executed
guarantees in its favour in the event of default. ATCO was the principal debtor, whereas the defendant,
Small Enterprise Finance Company Limited (“hereinafter called SEFCO”) was a company that used to
lend finances up to 5 million to small enterprises. SEFCO was a subsidiary of the Development Finance
Company of Kenya (“DFCK”). SEFCO’s objectives included financing 70% after confirmation of 30%
equity by the project owners.
Prior to the incorporation of ATCO the first and second plaintiffs as promoters approached SEFCO
with a proposal to establish at Kakamega, Western Kenya, a tyre retreading factory. Documentary
evidence reveals that the following events took place and most of them constitute common ground.
SEFCO’s terms for the funding included:
(i) incorporation of a limited company.
(ii) preparation of a project proposal or feasibility study.
(iii) payment of 1% being the registration fees payable with its application.
(iv) appointment or inclusion of SEFCO as a director of the principal debtor company namely ATCO.
Page 223 of [2007] 1 EA 219 (HCK)
(v) furnishing of securities to secure the funding.
(vi) the required loan was to be in the sum of KShs 3 million.
(vii) a Board paper by the Board of SEFCO was to be prepared and this was done on 2 June 1992.
All the above conditions were fulfilled and the Board of SEFCO approved a secured loan to ATCO in the
sum of KShs 3 million. The loan was repayable within a period of 8 years including one year grace
period and the loan was to attract interest at the rate of 20% per annum. A loan agreement and security
documents reflect this position.
Documentary evidence exhibited reveals that after the security documents were signed and registered
ATCO requested SEFCO to directly release KShs 3 million being the loan amount to the suppliers of the
new retreading machinery required for the project. The supplier’s name was Vulcan Industrial Limited.
The loan moneys were disbursed directly to Vulcan by two equal instalments of KShs 1.5 million each on
30 September 1992 and 5 October 1992, respectively. The payment was effected against the supplier’s
invoice and the court was informed that this used to be the practice so as to ensure that the loan moneys
are utilised for the purpose intended. The plaintiff directors had prior to the perfection of the securities
and the approval of the loan of KShs 3 million, confirmed that they had acquired reconditioned
machinery worth 1.5 million and this was reflected in the Board paper. This constituted part of the 30%
equity contribution being a pre-condition for the funding.
It is also common ground that the programme or schedule of action for the project was:
(a) June 1992 – Loan approval.
(b) July 1992 – Loan offer was accepted.
(c) August 1992 – Completion of legal documentation.
(d) September 1992 – Machinery was to be delivered to Kakamega but this was not done and this
constitutes the major subject matter of this suit.
(e) November/December – Machinery was to be tested – this was not done.
(f) January 1993 – Commencement of the Project – this was not done.
This last three issues represent the subject matter of this suit. Evidence from the first and second plaintiff
confirmed that the project was expected to start making profits from the third year of the commencement
of operation which was around 1995.
It is not in dispute that the machinery which had already been paid for by SEFCO as outlined above
was not delivered in September because it could not be cleared and the parties to the suit had traded
accusations, and pointed accusing fingers to each other on whether it is the inability to raise demurrage
and port charges or disputes between the supplier and the plaintiffs or both.
As fate would have it the project did not start at all and among other steps SEFCO appointed a
Receiver pursuant to a debenture over the new machinery in January 1994. The other significant event
was the filing by SEFCO and ATCO (in receivership) Limited of a suit against Vulcan – the supplier on
28 June 1994 (High Court civil case number 2337 of 94 where both SEFCO and ATCO pleaded breach
on the part of Vulcan. The first and second plaintiff
Page 224 of [2007] 1 EA 219 (HCK)

later applied to be joined in the suit and there is a consolidation order in relation to High Court civil case
number 2337 of 1994 and this suit.

Issues
Although the court was presented with many documents in the form of at least a bundle by each party the
other extreme is that the parties agreed on only three issues as follows:
(1) Were the first and second plaintiffs privy to the contracts pleaded in paragraph 1 to 5F of the
amended plaint.
(2) Was the defendant in breach of the said contracts as pleaded.
(3) Are the plaintiffs entitled to the prayers as pleaded in the re-amended plaint.
The pleadings however give rise to the following additional issues:
(4) Was the third plaintiff in breach of the contracts.
(5) Are the Guarantees by the first and second plaintiffs enforceable.
(6) Is the debenture over the machinery enforceable.
(7) Is the defendant’s counter-claim sustainable.
Summary of plaintiff’s case:
(1) In breach of the contracts entered into by the parties the defendant has from July 1994 to date
solely obstructed the release of the said machinery from the warehouse or container in Mombasa
Port and thereby caused the total failure or collapse or frustration of the implementation of the said
project.
(2) In breach of the contract the defendant placed the third plaintiff under receivership on 12 January
1994 on grounds allegedly that the third plaintiff had delayed in the payment of the loan and
interest.
(3) The defendant served notice and threatened to sell the plaintiff’s said properties in exercise of its
statutory powers of sale.
(4) The actions of the defendant were and still are unlawful, harsh, punitive and actuated by malice
and/or are in breach of the defendant’s representations.
(5) That there were certain basic assumptions, representations or conditions precedent underlying the
project as expressly stated in the feasibility study upon which the parties relied when they agreed
to enter into the said contracts for the implementation of the project which included:
(i) The first and second plaintiffs as the sponsors of the project would finance and meet the
initial capital expenses of the project as per clause four of the feasibility study.
(ii) The defendant would advance to the plaintiffs through the third plaintiff company as the
principal borrower the said KShs 3 million for the purchase of the new machinery for
making the retread tyres to be imported from Europe through the identified local agents of
the overseas suppliers of the namely M/s Vulkan Investments Limited.
(iii) The plaintiffs would be granted one year grace period before commencing repayment of the
principal sum of the loan by 84 monthly instalments.
Page 225 of [2007] 1 EA 219 (HCK)

(iv) the plaintiff to pay the defendant the sum of KShs 40 000 to cover interest for the
pre-operating period of the project and thereafter interest to be paid from the operations of
the company or the project.
(v) The project would be self-funding and all the revenue for the repayment of the interest and
principal sum would be generated from the operation of the project.
(vi) The defendant would be appointed as a director of the third plaintiff company to participate
in the decision making process and implementation of its affairs and to ensure efficient
operation of the said project.
(vii) The first plaintiff would resign from his job as the General Manager of Car and General (K)
Limited in order to be the Managing Director of the third plaintiff company to ensure its
success.
(viii) That the plaintiffs relied and acted on the aforesaid representations.
Summary of the defendant case:
(i) There was no privity of contract between the first and second plaintiff and the defendant.
(ii) There were no pre-conditions to the loan agreement, charges, guarantees or the debenture and the
entire commercial relationship between the parties is solely regulated by these documents.
(iii) The repayment of the moneys lent, namely KShs 3 million was not conditional on the success of
the project or its performance and the repayment was to be as per the loan agreement and the
specified securities.
(iv) The plaintiffs did not have adequate funds to clear the container at the port – and it was the author
of their misfortune.
(v) The first and second plaintiffs had disagreements with the third party, the supplier (Vulcan) and
the defendant was not a party and this led to the non-release or clearance of the machinery.
(vi) The first plaintiff sometime in August 1993, unlawfully and through deceit obtained all the
original clearance documents all of which were in the name of the supplier and that the said
plaintiff attempted to clear the said container but was arrested by the Kilindini Police pursuant to a
report made to the police by the suppliers.
(vii) The appointment of a Receiver was intended to secure the machinery and was validly made under
the debenture.
(viii) In order to enforce the securities following default on the part of the plaintiffs, the first and second
plaintiffs as guarantors and the third plaintiff also the principal debtor company, the defendant has
called up the guarantees and also served the required statutory notices and further the statutory
power of sale has arisen and is enforceable.

Evidence
I have carefully studied the documentary evidence as per the bundles presented to the court by the parties
in support of their respective positions. I have evaluated the evidence myself and its effect on each issue.
I have read the analysis of the evidence as set out in the written and oral submissions by counsel. The
plaintiffs called three witnesses while the defence called one witness. I
Page 226 of [2007] 1 EA 219 (HCK)

have put the evidence adduced on the scales. The court analysis of the evidence tilts in favour of the
defendant and I have substantially adopted the very able written submissions of counsel filed on 14
November 2006. In my own analysis and evaluation I have independently reached the conclusion stated
in the submissions of the learned counsel for the defendant. On the other hand, I have rejected that the
evidence given by the plaintiffs leads to the conclusions reached by the learned counsel for the plaintiff
in the written submissions. The evidence given by the plaintiffs does not on a balance of probabilities
support the averments in the plaint.
In particular, on the essential and critical point on the effect of the feasibility report and the Board
paper on the subsequent formal loan agreements, charges, guarantees and the debenture, my findings on
this is that the loan agreement represents the contract between the parties and the pre-contract
negotiations and papers are in my view extrinsic evidence and they cannot be used to contradict the
formal terms as set out in the loan agreement and the other contracts as described above. I find that the
intention of the parties was to record all the terms of the contract in the loan agreement and the other
formal contracts. Thus, where the interpretation of the feasibility study and/or the Board paper conflicts
with the subsequent loan agreement the court is entitled as I have done to reject the document or terms in
the feasibility study or the Board paper which defeat the intention as expressed in the loan agreement.
For example the plaintiffs’ contention that their liability to pay the loan was dependent on the success or
implementation of the project clearly conflicts with the terms of the loan agreement which provide for
payment of principal and interest on the 30th day of each month and by 84 equal monthly instalments.
The project was not programmed to make profits until after 3 years yet the only moratorium given by the
loan agreement is a grace period of one year. The intention of the parties was that the loan was payable
over the entire period stipulated save for the grace period. A collateral contract can only be proved where
it neither alters nor adds to the whole agreement as agreed by the parties or when the written contract is
silent. In this case the loan agreement provides for all the contentious points in this matter.

The Parol Evidence Rule

Chitty on Contract (29ed) Volume – General Principles 12.096 defines the principle thus:
“It is often said to be a rule of law that if there be a contract which has been reduced to writing, verbal
evidence is not allowed to be given ... so as to add to or subtract from, or in any manner to vary or qualify the
written contract ... The rule is usually known as the ‘parol evidence’ rule. Its operation is not confined to oral
evidence: it has been taken to exclude extrinsic matter in writing such as drafts, preliminary agreements and
letters of negotiation. The rule has been justified on the ground that it upholds the value of written proof the
finality intended by the parties in recording their contract in written form and eliminates great inconvenience
and troublesome litigation in many instances.”[Emphasis mine.]

The court has considered all the evidence on record and finds that the pre-contract documents which
were not specifically made part of the subsequent formal agreements such as the Local Agreement
charges, or guarantees did not form part of the enforceable contract. The feasibility study and the Board
paper and the alleged but unproven representations concerning the resignation of the
Page 227 of [2007] 1 EA 219 (HCK)

first plaintiff in order to manage the project do not in the view of the court form part of the contracts
between the parties. They only aided the parties in reaching the formal agreements.
I find that the intention of the parties in respect of each formal document is clear and does not need
the use of pre-contract documents or oral negotiations.
Under the rule they cannot in the circumstances be used to contradict the loan agreement.
The witnesses for the plaintiff did admit that the money lent, namely KShs 3 million is still
outstanding but they claim that because the project was frustrated they should not be held liable,
including the company. In my view the written contracts namely the loan agreement, charges, guarantee
and debentures speak for themselves and it is not the function of the court to rewrite the contracts for the
parties. I reject the evidence of the plaintiffs which purported to go against this position in that the
evidence of the alleged frustration and representation was occasioned or caused by the default of the
plaintiff Company and the plaintiffs in clearing the case of Housing Finance Company of Kenya v Palm
Homes Limited and others Khamoni J 12 KLR 93 and the Court of Appeal decision in the case of Kenya
Commercial Finance Company Limited v Ngeny and another [2002] I KLR 106. The claim is therefore
dismissed.
Turning to the counter-claim the same is clearly proven and I accept and believe the evidence of the
only witness called by the defence. The counterclaim is also clearly proven by the final agreement
namely the loan agreement, the chargee, the guarantee and the debenture. For these reasons I enter
judgment against the plaintiffs in favour of the defendant as prayed in the counter-claim but disallow any
costs to the defendant.

Overriding duty to act reasonably and prudently as men of commerce

It is clear from the findings and holdings that the legal authorities and the doctrine of precedent plus the
thinking of the past decades is for the courts to interpret commercial contracts and give efficacy to the
terms as agreed by the parties. This is exactly what I have done. However, in this transaction it will be
recalled that, what was lent was KShs 3 million and what is now due is close to KShs 40 million. The
project never took off even for a day and the intention of the parties to put in place a useful business tyre
retreading venture was ultimately never met. The question is, must the principle of the freedom of
contract always reign supreme as Justice Ringera seems to say in one of the cases cited in this matter and
should the court always ignore economic factors and circumstances. Can the law at this time and age
develop an overriding rule based on commercial morality and responsibility. To my mind I think the
courts should come up with such an overriding principle. In the circumstances of this case between a
successful project and the plaintiffs was the inability to raise KShs 700 000 to clear the machinery. On
the other end is a financier, the defendant who could have lent the KShs 700 000 to ensure the
commencement of the project. It did not do so and in keeping with the agreement just stuck to its gun as
expressed in the loan agreement and the charge and the debenture including appointing a receiver whose
remuneration could perhaps exceed the KShs 700 000 which the plaintiffs needed.
With respect although in keeping with the current legal authorities and notions of interpretations of
contracts I have found in favour of the defendant –
Page 228 of [2007] 1 EA 219 (HCK)

the only reason for having done so is that I would perhaps, singly be swimming against the legal
authorities referred to above especially the one of the Court of Appeal and perhaps as far as I know I
would not want to spring a surprise on commercial men and women and other entities in holding against
them without notice. This need not be so in the future. They had better be forewarned. I am however
clear in my mind that this transaction and its ultimate outcome – possible sale of the only assets the
plaintiffs’ own including their homes – the colossal amount demanded so many years after the event –
does shock the conscience of this Court and I must add it must shock the conscience of the right thinking
and ethical commercial men and women ie prudent business people and commercial entities. Whereas in
this case, the facts and circumstances shock the conscience of the right thinking and ethical commercial
people and the conscience of the court, the courts ought to develop the law further to stop the injustice.
There cannot be commercial justice where the conscience of the court and that of the right thinking and
ethical commercial men is shocked. The courts have a responsibility to search for that justice, find it and
declare it. In my court I would in similar circumstances in future and having announced it in advance find
that notwithstanding the written contracts between the parties the law should imply an overriding duty for
all commercial men and women and other entities to act in a prudent manner so as to achieve the overall
intention for each transaction. Where they fail below this overriding duty the court ought to intervene and
adjudicate on the principles of commercial prudence and morality – thus lending KShs 700 000 would
have been the prudent way to achieve the overall intention of the parties which was the setting up of a
tyre project.
In future I feel sufficiently inspired to walk this path but I shall not do so today because there was no
warning to the people of commerce and we all tend to get wiser after the event! The other reason why I
could not invoke the principle is that unlike the duty to mitigate, the overriding principle based on
commercial morality should be imposed on all the parties. In the circumstances described the plaintiff did
not apply for the extra funds (KShs 700 000) nor did the defendant offer to avail the funds. In the case of
the duty to mitigate the aggrieved or innocent party is not under any obligation to do anything other than
in the ordinary course of business Banco de Portugal v Waterlow [1932] AC 452, 506. Thus the duty is
discharged where as stated in:
“The Law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him
has acted reasonably in the adoption of remedial measure and he will not be held disentitled to recover the
cost of such measures merely because the party in breach can suggest that other measures less burdensome to
him might have been taken.”

In other words a claimant need not take a risk with his own money. However, the duty to act as
reasonable, right thinking but prudent commercial men and women should be owed to parties in
commercial contracts and the duty should be much higher and involve some reasonable initiative by both
parties in achieving the intention of the contract. Where a contractually “correct” party fails to discharge
this overriding duty he ought to be disallowed what he could have achieved if he had discharged the duty.
Thus in a case such as this I would have allowed only the recovery of the initial loan less the accrued
interest.
In certain situations the free reign of the principle of freedom of contract as defined in the last century
would not serve the interest of doing justice and
Page 229 of [2007] 1 EA 219 (HCK)

small wonder in many jurisdictions legislators have made inroads into the principle so well described by
two of its patron saints below.
In Printing and Numerical Registering Company v Sampson [1875] LR 19 Fg 462 at 465 Sir George
Jessel observed:
“if there is one thing which more than another public policy requires it is that men of full age and competent
understanding shall have the utmost liberty contracting, and that their contracts when entered into freely and
voluntarily shall be held sacred and shall be enforced by Courts of Justice.”

And the same principle was stated by Henry Sidquick in the Elements of Politics (1879) in these words:
“Suppose contracts freely made and effectively sanctioned and the most elaborate social organisation
becomes possible, at least in a society of such human beings as the individualistic theory contemplates gifted
with mature reason and governed by enlightened self interest.”

Sadly, the world has not yet manufactured the enlightened people answering the description captured by
the two gentlemen above nor has the gap of bargaining power between contracting parties necessarily
been bridged in the two centuries, hence the need for further thought and intervention both statutory and
by the courts under the common law. Closer to home, Justice Ringera had this to say in the cited case of
Caesar Njagi Kunguru v Kenya Commercial Bank High Court civil case (Milimani) 1543 of 2000 (UR)
at page 4:
“It is not part of the courts mandate to rewrite or otherwise modify those contracts for the reason of changed
economic or other circumstances.”

While I have given judgment for the defendant in the circumstances of this case as the saints of the
freedom of contract would all do, I believe that I have served sufficient notice that in my court I might
choose a different path as outlined above should I, in future be presented with a fitting case. The
principle ensures the attainment of the initial intention of the parties. I visualise a situation where a
Commercial Court when moved by either party to a contract to give interim relief should place itself in a
position to give such interim relief. If and when the path of justice reveals itself as narrow, dark and
lonely the path must be widened and lighted by the courts, the same way a dark night is lighted up by the
stars. It is necessary to make a new beginning and a new dawn.

Case for ADR (Alternative Dispute Resolution) justified

Perhaps more than anything else I have come across in the past few years, facts of this case and the
apparent unjust outcome brought about by applying the principle of freedom of contract, demonstrate the
need for parties to consider invoking Alternative Dispute Resolution (“ADR”) method in that a mediator
would have for instance early in the stalemate of the clearance of the machinery noted that, as between
the parties and a successful common transaction, was a paltry KShs 700 000 and would have identified
the need for further funding of KShs 700 000 by the finance company as a good settlement option. In
addition instead of giving a lot of emphasis on the parties contractual rights under the banner of the
principle of freedom of contract it is likely that a good mediator would have suggested to both parties
that the availability of the KShs 700 000 represented a win-win situation for both of them. In other words
the ability of ADR to draw the attention of the parties not only to their contractual “rights”
Page 230 of [2007] 1 EA 219 (HCK)

but also to their “interests” and “values” would have provided an important breakthrough to the stalemate
on the clearance of the machinery.
One other idea is that, if the parties had provided a Dispute Resolution Board (“DRB”), say of one
person to be available all the time to identify and resolve disputes as they occur in the transaction such a
Board or a single person could have identified the actual interests of the parties and have the dispute or
potential dispute resolved immediately it occurred. Although the comparison is out of proportion in time
of size and importance there is much to learn from the Euro-Channel Project Contract, underground
channel, between the United Kingdom and France, which is one of the biggest contracts in the
construction industry and history in terms of value which had separate Boards established under the
contract namely Technical, Legal and Financial and they assisted in anticipating, identifying and
resolving problems as they occurred during the construction. I think there is a case for changing course in
commercial contracts and for practitioners of law and other stakeholders focusing on all possible
alternatives in advance or as they occur instead of solely focusing on what is sometimes a horrifying
post-mortem of the problem based solely on the principle of the freedom of contract. Freedom of contract
though a major principle and not a side wind has shown its ugly belly in this matter.

Commercial morality
There is need to evolve some overriding commercial morality principle to enable the court to intervene
even in the face of freedom of contract in situations such as this and I would venture to suggest tests as
under:
(1) If you were at the commencement of the contract to ask the parties concerning the consequences
which have since arisen and they would answer - No, this is not what we intended to be the
outcome or result of the transaction this should provide the first test for intervention.
In this case if you were to ask the plaintiffs if they intended to sue to recover KShs (appx) 75
million in the transaction the answer would be a No – yet this is what has exactly happened. In this
case if you were to ask the defendant if IT intended to recover KShs 40 million by way accrued of
interest without the principal moneys assisting in setting up the tyre business venture the candid
answer would be a “NO”.
(2) The second test would be does the outcome or result arising from the transaction shock the
conscience of the court? Is there proportionality in the outcome? Does the end justify the means?
Is it an unconscionable bargain?
(3) Does the outcome leave a bad taste in the mouth of right thinking and upright men of conscience?
In the transaction under challenge the answer to each question is positive.
A loan of 3 million attracting interest of KShs 40 million approximately which might result in
the first and second plaintiff’s being rendered homeless leaves a bad taste in the mouth even to
pronounce the sentence itself. It shocks, it revolts, it severs any commercial cord or commercial
morality if it exists and at the same time it ought to give rise to new thinking in the development of
principles of commercial morality. Any right thinking
Page 231 of [2007] 1 EA 219 (HCK)

business person would reasonably share this view if the question were to be posed to him.
This then should form the basis for the court’s intervention to give relief that accords with the
initial intention of the parties and which reinforces commercial morality and sanity.
I have, as observed above noted that the superman intended to have been “invented” in the 20th
and 21st centuries, with gifted mature reason and governed by enlightened self interest to manage
transactions on the basis of unfettered freedom of contract was not and has not yet been invented
and cannot be invented because men and women are created. It follows therefore that the principle
of freedom of contract without an underlying commercial morality is like a train whose brakes are
slowly failing with each mile covered, it has inbuilt in it seeds of self destruction. This explains the
great interventions in many jurisdictions by the legislature to rein in the freedom – eg Business
Premises Rent Law, Rent Restriction Laws, Laws on Housing and Mortgages and Policies
Underpinning Housing Laws, etc.
To emphasise on the importance of counsel and parties to think well in advance about the usefulness of
ADR as a complimentary system or alternative to litigation, I wish to echo the wise words of Lord Justice
Ward in the case of Burchell v Bullard [2005] EWCA Civ 338:
“The profession must, however take no comfort from this conclusion Halsey has made plain not only the high
rate of a successful outcome being achieved by mediation but also its established importance as track to a just
result running parallel with that of the court system. Both have a proper part to play in the administration of
justice. The court has given its stamp of approval to mediation and it is now the legal profession which must
become fully aware of and acknowledge its value. The profession can no longer with impunity shrug aside
reasonable requests to mediate. The parties cannot ignore a proper request to mediate simply because it was
made before the claim was issued. With court fees escalating it may be folly to do so. I draw attention
moreover to paragraph 5.4 of the pre-action protocol for Constitution and Engineering disputes – which I
doubt was at the forefront of the parties minds – which expressly requires the parties to consider at a
pre-action meeting whether some form of alternative dispute resolution procedure would be more suitable
than litigation. The defendants have escaped the imposition of a costs sanction in this case but defendants in a
like position in the future can expect little sympathy if they blithely battle on regardless of the alternatives.”

I would strongly urge the bar to embrace alternative methods and to be more innovative in drafting the
commercial contracts and in handling disputes.
This brings me to one more point. Although counsel are aware of the reasons for the delay in
finalising this matter and are therefore not complaining or blaming the court for the delay it also brings
into focus the need for embracing case management in litigation, and for the court to adopt an
interventionist approach to the matters before it and the need to ensure flexibility in designing a
procedure suitable to each dispute and to give a time schedule of activities. Had this been done when the
matter was first filed, the advantages in terms of costs and finality are now by hindsight obvious. The
outcome of this case although contractually correct must in future, lead to a more realistic approach and
recognition of the overriding principle.
Page 232 of [2007] 1 EA 219 (HCK)

This then explains why I have in exercise of my discretion disallowed any costs to the defendant.
Orders shall issue as earlier given in favour of the defendant.
For the appellant:
Information not available
For the respondent:
Information not available

Mutua v Republic
[2007] 1 EA 232 (CAK)

Division: Court of Appeal of Kenya at Nairobi

Date of judgment: 7 July 2006
Case Number: 120/04
Before: Omolo, Githinji and Deverell JJA
Sourced by: LawAfrica
Summarised by: E Ongoya

[1] Constitutional law – Fundamental Rights and Freedoms – Failure to uphold fundamental rights and
freedoms – Whether conviction can stand.

Editor’s Summary
The appellant challenged a judgment of the Superior Court dismissing his appeal to that Court against his
conviction and sentence of death imposed by the Magistrate’s Court, Kibera. The issue raised by the
appellant related to a violation of the appellant’s rights under section 77 of the Constitution. The charge
upon which the appellant was convicted and sentenced to death was one of attempted robbery with
violence contrary to section 297(2) of the Penal Code. The appellant was arrested on 17 June 2000 and
appeared before the Magistrate’s Court on 19 February 2001. The eight months the accused remained
unarraigned in court after arrest were not explained. It was on the basis of the unexplained delay that it
was submitted on behalf of the appellant that his rights had been violated.
Held – It is the duty of the courts to ensure that crime where it is proved is appropriately punished for the
protection of society. It is also a duty of the courts to uphold the rights of persons charged with criminal
offences, particularly the human rights guaranteed to them under the Constitution.
An unexplained violation of a constitutional right will normally result in an acquittal irrespective of
the nature and strength of evidence which may be adduced in support of the charge.
In this appeal, the police violated the constitutional right of the appellant by detaining him in their
custody for a whole eight months. The deprivation by the police of his right to liberty for a whole eight
months before bringing him to court so that his trial could begin obviously resulted in his trial not being
held within a reasonable time.
Appeal allowed.
Page 233 of [2007] 1 EA 232 (CAK)

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Kiyato v Republic [1982-1988] KAR 418
Ndede v Republic [1991] KLR 567
Swahibu Simbauni Simiyu and another v Republic Court of Appeal, criminal appeal number 243 of 2005
(UR)

Judgment
Omolo, Githinji and Deverell JJA: Albanus Mwansia Mutua, the appellant herein, appeals to this Court
from the judgment of the Superior Court (Mbaluto and Kubo JJ) which dismissed his appeal to that Court
against his conviction and sentence of death, imposed on him by a Senior Principal Magistrate at Kibera.
The appeal to the court is thus a second appeal and that being the case the court can only deal with issues
of law – see section 361(1) of the Criminal Procedure Code, Chapter 75 Laws of Kenya.
The first issue of law which Mr Ondieki, learned counsel for the appellant, raised before us was in
connection with the alleged violation of section 77 of the Constitution of Kenya. That section, broadly,
sets out the constitutional provisions relating to procedures for fair trials for persons charged with
criminal offences. In respect of the appellant, the issue arises in this way.
The charge upon which the appellant was convicted and sentenced to death was one of attempted
robbery with violence contrary to section 297(2) of the Penal Code, Chapter 63 Laws of Kenya. The
particulars contained in that charge were that on 17 June 2000, at Nairobi West Shopping Centre within
Nairobi Area, jointly with others not before the court and while armed with a Beretta Pistol, the appellant
attempted to rob Alphonse Murwanashyaka of a motor vehicle, registration number KAG 620V, Toyota
Corolla, and that immediately after the time of the attempted robbery, the appellant did use personal
violence to the said Alphonse Murwanashyaka. There were two other charges under section 4(2)(b) of
the Firearms Act, Chapter 114 of the Laws of Kenya and those charges stated in their particulars that on
the same date, time and place, the appellant was found in possession of a Beretta Pistol (count two) and
two rounds of ammunition (count three) without a valid firearms certificate in respect of those items. On
the latter two counts, the appellant was sentenced to seven years of imprisonment on each count to run
concurrently. The High Court, on appeal to it, confirmed the conviction on all the three counts but
ordered that the sentences of imprisonment on counts two and three were suspended obviously in view of
the sentence of death, on count one.
The typed charge-sheet we have on the record before us shows that the appellant was arrested on 16
February 2000; that obviously cannot be correct because the offences charged in that charge-sheet were
said to have been committed on 17 June 2000; if the appellant had been arrested on 16 February 2000,
that arrest must have been for offence(s) other than those said to have been committed on 17 June 2000.
The charge-sheet further shows that the
Page 234 of [2007] 1 EA 232 (CAK)

appellant appeared before the Principal Magistrate’s Court at Kibera on 19 February 2002. Again that
cannot be correct because the appellant’s case before the Magistrate’s Court at Kibera was registered as
criminal case number 1066 of 2001, not 2002. The appellant first appeared before a Senior Principal
Magistrate at Kibera on 19 February 2001. That is what is in the record of the trial Magistrate. This court
is a court of record and we must take that date to be correct. That means that the appellant, if he was
arrested on 17 June 2000, the date of the alleged offences we are concerned with, was not taken to the
Kibera Magistrate’s Court until 19 February 2001. That would be a period of some eight months and it is
not clear from the record before us where the appellant was between the date of his arrest and the 19
February 2001 when he first appeared before the Magistrate to answer the charges with which we are
concerned. Even if the appellant had been arrested for other offences on 16 February 2000 as the
charge-sheet shows, was released on bail and committed the offences now before us on 17 June 2000,
that would not provide an explanation as to why the appellant was not taken to court on the charges we
are dealing with until some eight months later. It is on the basis of this unexplained delay of eight months
before taking the appellant to court that Mr Ondieki submitted before us that the appellant’s
constitutional rights under section 77 of the Constitution were violated, that the subsequent trial and
other proceedings were a nullity and that on that basis alone, we ought to allow the appellant’s appeal.
Additionally, Mr Ondieki contended that the police required the eight months in order to manufacture
evidence to support their allegations of criminality against the appellant.
Mrs Murugi, the learned Principal State counsel who represented the respondent/republic before us,
candidly admitted that the delay of eight months was wholly unexplained, but she went on to submit that
the delay did not affect the nature and quality of the prosecution’s evidence against the appellant and that
the convictions recorded against the appellant were based on sound evidence.
We must admit that the matter has caused us some considerable thought and anxiety. On the one hand
it is the duty of the courts to ensure that crime, where it is proved, is appropriately punished; this is for
the protection of society; on the other hand it is equally the duty of the courts to uphold the rights of
persons charged with criminal offences, particularly the human rights guaranteed to them under our
Constitution.
Mr Ondieki relied on the fair-trial provisions contained in section 77 of the Constitution, but in the
circumstances of this appellant, the relevant provisions of the Constitution appear to us to be in section
72 of the Constitution. Section 72(3) states:
“72 (3) A person who is arrested or detained:
(a) for the purpose of bringing him before a court in execution of the order of the court; or
(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal
offence, and who is not released, shall be brought before a court as soon as is reasonably
practicable, and where he is not brought before a court within twenty-four hours of his
arrest or from the commencement of his detention, or within fourteen days, of his arrest or
detention where he is arrested or detained upon reasonable suspicion of his having
committed or about to commit an offence punishable by death, the burden of proving
Page 235 of [2007] 1 EA 232 (CAK)
that the person arrested or detained has been brought before a court as soon as is
reasonably practicable shall rest upon any person alleging that the provisions of this
sub-section have been complied with.”
The appellant was arrested without a warrant on reasonable suspicion that he had committed the offence
of attempted robbery with violence under section 297(2) of the Penal Code; that offence is punishable by
death. The date of arrest, according to the recorded evidence before us was on 17 June 2000. That was
the day Murwanashyaka Alphonce (PW1), his wife Naomi Nduruka Njau (PW2) and their son Peter
Gakua Mbugua (PW3) said they were attacked by the appellant and two others while they were in
Nairobi West. Police Corporal Peter Tirop (PW4) also said he was on patrol in Nairobi West on 17 June
2000 and arrested the appellant from PW1, PW2 and PW3 who had detained him. On the evidence
adduced by the prosecution in this case, the date of arrest of the appellant was clearly 17 June 2000 and
not 16 February 2000 as shown in the typed charge-sheet. As the appellant was arrested on reasonable
suspicion that he had committed a capital offence under section 297(2) of the Penal Code, the police
were entitled to keep him in their custody for fourteen days before bringing him before the court; section
72(3)(b) of the Constitution allows for that. But the record of the Magistrate shows that the appellant first
appeared before the court on 19 February 2001, some eight months after he was arrested. There was and
there still is absolutely no explanation for that extraordinary delay and Mr Ondieki submitted that the
prosecution was making-up a case against the appellant during that period.
In the case of Ndede v Republic [1991] KLR 567, the appellant had been arrested without a warrant
on 29 September 1997 and was held in detention, in communicado, until 30 October 1997 when he was
brought before a Magistrate. The period of delay was just over thirty days and Ndede was not charged
with an offence carrying the death penalty. He pleaded guilty before the Magistrate and was sentenced to
long prison terms. He appealed to the High Court against the conviction and sentence but the appeal
against the conviction on their own pleas of guilt. The sentences were however, reduced. Ndede next
appealed to this Court and the court, consisting of the late Mr Justice Gachuhi JA, the late Mr Justice
Msime JA and Mr Justice Omolo Ag JA (as he then was) held that section 348 of the Criminal Procedure
Code was not an absolute bar to appeals from persons convicted on their own admission and that as there
was no explanation offered for the delay of some thirty days before Ndede was brought to court, the trial
Magistrate ought not to have accepted Ndede’s plea of guilty. Ndede’s appeal was allowed and his
conviction quashed. It did not matter that before convicting Ndede, the Deputy Public Prosecutor had
stated the facts in support of their charges, that Ndede had admitted those facts and the facts themselves
had disclosed the offences charged against him. The quashing of the convictions must have been on the
basis that Ndede’s constitutional right given to him by section 72(3)(b) of the Constitution had been
violated and he was entitled to an acquittal.
Then there are the cases concerned with the violations for the fair-trial provisions under section 77 of
the Constitution. First, is the case of Kiyato v Republic [1982–1988] KAR 418 where the appellant was
tried and convicted of the offence of robbery with violence under section 296(2) of the Penal Code and
sentenced to death. His first appeal to the High Court was dismissed and on his
Page 236 of [2007] 1 EA 232 (CAK)

appeal to this Court, it was held that as Kiyato had not been provided with an interpreter contrary to
section 77(2)( f ) of the Constitution, his appeal would be allowed. The nature and strength of the
evidence adduced by the prosecution in support of their charge did not really count in such a situation.
Next is the recent case of Swahibu Simbauni Simiyu and another v Republic Court of Appeal, criminal
appeal number 243 of 2005 (UR). The constitutional violation alleged in that appeal was the language
used in the trial court and this Court held that since section 77(2)(b) of the Constitution requires that:
“Every person who is charged with a criminal offence
(b) shall be informed as soon as reasonably practicable, in a language that he understands and in details, of
the nature of the offence with which he is charged...”

And since the record of the Magistrate did not show the language used by the two appellants, there was a
violation of the appellant’s constitutional rights under the foregoing section and the appeal was allowed.
Once again, the nature and strength of the evidence brought by the prosecution in support of its charge
did not really count.
In the appeal now before us, there was undoubtedly a gross violation of the appellant’s constitutional
right guaranteed to him by section 72(3)(b) of the Constitution. He was brought before the trial
Magistrate some eight months from the date of his arrest and no explanation at all was offered for that
delay. It could be that he fell ill during the fourteen days the police were entitled to hold him in custody,
that he was admitted in hospital and was detained in hospital for the eight months as a result of which the
police were unable to produce him in court. It could also be that the appellant had been presented to the
court earlier but his case was terminated for one reason or the other, was discharged and was
subsequently recharged afresh. Constitutionally, the burden was on the police to explain the delay.
At the end of the day, it is the duty of the courts to enforce the provisions of the Constitution
otherwise there would be no reason for having those provisions in the first place. The jurisprudence
which emerges from the cases we have cited in the judgment appears to be that an unexplained violation
of a constitutional right will normally result in an acquittal irrespective of the nature and strength of
evidence which may be adduced in support of the charge. In this appeal, the police violated the
constitutional right of the appellant by detaining him in their custody for a whole eight months and that,
apart from violating his rights under section 72(3)(b) of the Constitution also amounted to a violation of
his rights under section 77(1) of the Constitution which guarantees to him a fair hearing within a
reasonable time. The deprivation by the police of his right to liberty for a whole eight months before
bringing him to court so that his trial could begin obviously resulted in his trial not being held within a
reasonable time. The appellant’s appeal must succeed on that ground alone.
Having taken that view of the matter, we find it unnecessary to consider some of the outlandish
submissions made before us by Mr Ondieki. We doubt whether Mr Ondieki’s other submissions would
have carried any weight with us. But we have said enough, we think, to show that we are for allowing the
appellant’s appeal. We accordingly allow the appeal; quash all the three convictions recorded against the
appellant, set aside the sentences imposed on him,
Page 237 of [2007] 1 EA 232 (CAK)

and order that he shall be released from prison forthwith, unless he is held for some other lawful cause.
Those shall be our final orders in the appeal. We must add that this judgment is delivered pursuant to rule
32(2) of the Court’s Rules, Githinji JA having declined to sign the judgment.
For the appellant:
Mr Ondieki
For the respondent:
Mrs Murugi

Mwatela v East African Community

[2007] 1 EA 237 (EACJ)

Division: East African Court of Justice at Arusha

Date of judgment: 4 October 2006
Case Number: 1/05
Before: Ole Keiwua P, Mulenga VP, Ramadhani, Mulwa and Warioba
JJA
Sourced by: LawAfrica
Summarised by: C Kanjama

[1] East African Community – Jurisdiction – Whether the Council had jurisdiction over the Assembly –
Whether there was any restriction on the kind of bills that could be brought before the Assembly.
[2] East African Community – Legislative procedure – Whether there was any restriction on Private
Members Bills – Whether private members bills could be taken over and withdrawn by the Council of
Ministers.
[3] East African Community – Words and Phrases – “Council of Ministers” – What was meant by
Council of Ministers – Whether Attorneys General of Kenya and Tanzania were Ministers in their
respective governments – Whether a sectoral Council could delegate its powers to non-ministerial
government representatives.

Editor’s Summary
The applicants made a reference to the East African Court of Justice under article 30 of the Treaty for the
Establishment of the East African Community (the Treaty). The dispute arose when the Council of
Ministers (“the Council”) decided that policy-oriented Bills, such as those having an implication on the
member states’ sovereign interest and on the Budget ought to be submitted to the East African Assembly
(the “Assembly”) by the Council. The Council therefore assumed responsibility for four Private Members
Bills pending before the Assembly, and the Assembly twice agreed to postpone consideration of the
Bills. The Council appointed a Sectoral Council on Legal and Justice Affairs (the “Sectoral Council”) to
which the Attorneys General of the three East African countries were to be the members. The Sectoral
Council considered the aforesaid pending Bills and made a decision to withdraw and/or amend the
different Bills. At the meeting in which this decision was taken (the “material meeting”), the Attorneys
General of Kenya and Tanzania were represented by their deputies.
Three issues arose for determination, namely whether the Sectoral Council had been properly
established and constituted, what was the status of the
Page 238 of [2007] 1 EA 237 (EACJ)

purportedly-withdrawn Bills and what relationship the Council had with the Assembly in regard to
legislation.
Held – Under the Treaty, the Council of Ministers could establish a Sectoral Council of Ministers from
all three East African states to deal with any relevant policy issue. However, under the laws of the East
African states, only the Attorney-General of Uganda (through the Constitution) and of Kenya (through
the Interpretation and General Provisions Act) were considered Ministerial-level officials. Since the
Attorney-General of Tanzania was not a Minister under Tanzania law, he could not validly constitute the
representative of Tanzania in the Sectoral Council. Under the doctrine of prospective annulment, the
Sectoral Council was annulled but without retrospective effect. Defrenne v Sabena [1981] All ER 122;
Linkletter v Walker Warden 381 US [1965] 618; Golak Nath v The State of Punjab [1967] AIR 1643
followed.
Further, the Sectoral Council powers could only be exercised by Ministers, and not by subordinates or
delegated representatives. Hence, Kenya and Tanzania were not properly represented in the material
meeting. That meeting was therefore a nullity as it lacked a quorum of representatives from all East
African states. The decisions arrived at therein were also a nullity.
Under the Treaty, Bills pending for consideration before the Assembly could only be withdrawn by
the mover with leave of the House or the Committee. The Council therefore had no authority to withdraw
private members Bills pending before the Assembly. The Council, the Summit, the Court and the
Assembly of the East African Community had separate and independent jurisdictions. The Assembly
could therefore consider any matter within its mandate. However, the Assembly’s general power of
legislation was limited by article 59 restrictions. One of the restrictions prohibits the Assembly from
considering a Bill that does not relate to the general functions of the Community or does not relate to a
matter in respect of which an act of the Community can be enacted. This includes matters relating to the
exclusive sovereignty of the Partner States. Costs of the application would be awarded to the applicants
limited to relevant disbursements.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Uganda v Commissioner of Prisons ex parte Matovu [1966] EA 645

United Kingdom
Defrenne v Sabena [1981] All ER 122 – F

United States
Linkletter v Walker Warden 381 US [1965] 618 – F

India
Golak Nath v The State of Punjab [1967] AIR 1643 – F
Page 239 of [2007] 1 EA 237 (EACJ)

Judgment
Ole Keiwua P, Mulenga VP, Ramadhani, Mulwa and Warioba JJA: This is a reference under article
30 of the Treaty for the Establishment of the East African Community (the “Treaty”), instituted on 7
December 2005 by three Members of the East African Legislative Assembly, namely: Calist Andrew
Mwatela, Lydia Wanyoto Mutende and Isaac Abraham Sepetu (the applicants), in an application by
notice of motion pursuant to rules 1(2) and 20 of the East African Court of Justice Rules of Procedure
(the “Court Rules”). The respondent is the East African Community which under article 4 of the Treaty,
is a body corporate with, inter alia, power to sue and be sued in its own name.
In their application, the applicants challenge the validity of the meeting of the Sectoral Council on
Legal and Judicial Affairs (the “Sectoral Council”) held on 13–16 September 2005 and the decisions
taken by the said meeting in relation to Bills pending before the East African Legislative Assembly (the
“Assembly”), and they seek an order by the Court that the report of the Sectoral Council meeting held on
13 to 16 September 2005 is null and void ab initio and all decisions, directives and actions contained in
or based on it are null and void.
In the response to the application the respondent opposes the application and supports the validity of
the Sectoral Council’s impugned decisions. Both parties to the application opted to rely on the pleadings
and the supporting affidavits and the reports and correspondence which were annexed thereto and so no
oral evidence was adduced.
It was common ground that what gave rise to the dispute were four Private Member’s Bills, which in
November 2004 were pending legislation in the Assembly. The Bills are the East African Community
Trade Negotiations Bill (2004) (the “Trade Negotiations Bill”), The East African Community Budget
Bill (the “Budget Bill”), The East African Immunities and Privileges Bill (the “Immunities and Privileges
Bill”) and The Inter-University Council for East Africa Bill (the “Inter-University Council Bill”).
The Council of Ministers (the “Council”) at its ninth meeting held on 24 November 2004, decided
that policy oriented Bills such as those that have implications on the Partner States’ sovereign interest
and on the budgetary aspect of the community, ought to be submitted to the Assembly by the Council
under article 14(3)(b) of the Treaty as opposed to being submitted as Private Member’s Bills under
article 59 of the Treaty. The Council therefore decided to assume responsibility for the four pending Bills
for consideration and submission to the Assembly. We were not able to ascertain the extent of
consultation that took place between the Council and the Assembly before the Council decided to assume
responsibility over the Bills. But we found out that in November 2004 and again in February 2005, the
Chairperson of the Council requested and the Assembly agreed to postpone debate on the Trade
Negotiations Bill.
During the budget debate in the May 2005, session of the Assembly, some issues connected with the
pending Private Member’s Bills were raised as a result of which the Chairperson of Council proposed a
joint meeting between the Assembly and the Council. Before that meeting was held, the Council held its
tenth meeting on 4–8 August 2005, at which it decided that development of legislation on trade
negotiation be stayed pending conclusion of a consultancy
Page 240 of [2007] 1 EA 237 (EACJ)

study into all implications of such legislation, and that the Inter-University Council Bill be submitted to
the Sectoral Council for legal input and subsequent submission to the Assembly.
The joint meeting, referred to as the High Level Retreat, was held at Ngurdoto Mountain Lodge on 10
and 11 August 2005. At the conclusion of the meeting, the Chairperson undertook that the revised
Inter-University Council Bill and the Immunities and Privileges Bill would be submitted to the Assembly
session due to start on 19 November 2005. However, the said Bills were not submitted to the Assembly
as undertaken by the Chairperson because the Sectoral Council decided otherwise.
The Sectoral Council held a meeting on 13 to 16 September 2005, at which it decided that protocols,
within the meaning of article 151 of the Treaty, rather than legislation enacted by the Assembly, were
sufficient to provide for the Inter-University Council and for providing immunities and privileges for the
community. Apparently a protocol for the establishment of the Inter-University Council was concluded
on 13 September 2002, and had been ratified by Tanzania and Uganda and only awaited ratification by
Kenya; and a draft Protocol on Immunities and Privileges for the Community, its organs and institutions
and persons in its service was in process of consultation and had been considered by the Permanent
Secretaries in February 2005.
The Sectoral Council observed that the contents of the Bills were respectively similar to the
provisions of the said Protocols and accordingly it decided to advise the Council to withdraw the two
Bills from the Assembly. In furtherance of these decisions, the Sectoral Council (a) urged that the
Ministers of the Partner States responsible for foreign affairs should urgently meet to consider and
conclude the Protocol on Immunities and Privileges so as to bring it into force by 1 January 2006; and (b)
requested that the Chairperson of the Council should inform the Speaker of the Assembly of these
decisions.
Two things followed. On 16 September 2005, the Secretary General of the Community wrote to the
Speaker informing him, inter alia, that the Council had decided to withdraw from the legislative business
of the Assembly, the Immunities and Privileges Bill and the Inter-University Council Bill. Secondly,
according to the Official Report of Proceedings of the Assembly, on 27 September 2005, Mr John Koech,
a Member of the Council, apparently on behalf of the Chairperson, made a Ministerial Statement from
the floor of the Assembly, recalling the Council decision at its ninth meeting held on 24 November 2005,
to assume responsibility of the four Bills, its subsequent request to the Speaker to defer consideration of
the Bills until policy input by the Council had been finalised and also gave an update to the Assembly on
the current position of each Bill.
In a nutshell he said that after receiving comments by the Partner States on the Bills and subjecting
the Bills for appropriate policy input by the Sectoral Council, the Council was requesting that
development of legislation on trade negotiations be stayed pending conclusion of consultation with
Partner States on a consultancy study report; and that the Community Budget Bill be stayed pending
submission of the Partner States’ comments on it to relevant Sectoral Committees.
He also disclosed that it was the view of the Partner States that both the Immunities and Privileges
Bill and the Inter-University Council Bill be withdrawn
Page 241 of [2007] 1 EA 237 (EACJ)

from the Assembly because in either case, a Protocol within the meaning of article 151 of the Treaty is
sufficient. The Ministerial statement was not well received and after some uncomplimentary reactions,
the Assembly resolved to have a substantive debate on the Ministerial statement at sometime in the
future. However, no motion was subsequently moved to initiate a debate on the matter. Instead, on 7
December 2005, the applicants filed this application which the respondent opposed as we indicated
earlier.
At the hearing, the applicants were represented by a team of counsel led by Professor FE Ssempebwa
and consisting of Mr DW Ogalo, Mr M Marando, Mr MS Kaggwa and Mrs SN Bagalaaliwo while the
respondent was represented by a team led by Mr W Kaahwa, counsel to the Community, and consisting
of Ms Makena Muchiri, Deputy Chief State counsel (Kenya), Mr SN Tuimising, Senior State counsel
(Kenya), and Ms Isabelle Waffubwa, Legal Officer of the Community. The East African Law Society,
with leave of the Court, appeared in the application as amicus curiae and was represented by Mr Tom
Nyanduga, President of the Society, Mr Don Deya, Chief Executive Officer of the Society, Mr Alex
Mgongolwa and Mr Nassoro Mohammed who are members of that Society.
The Issues
A scheduling conference in terms of rule 52 of the Court Rules was held on 15 June 2005 at which time
two sets of issues were submitted by the parties. With the help of the court the issues were merged as
follows:
(1) Whether the meeting held between 13 and 16 September 2005 was a meeting of Sectoral Council
on Legal and Judicial Affairs as envisaged in the Treaty.
(2) Whether Protocols are legally sufficient in regard to immunities and privileges and for the formal
establishment of Inter-University for East Africa Council so as to render the enactment of the
Community’s Acts for those purposes unnecessary.
(3) Whether the Inter-University Council for East Africa Bill 2004 and the East African Community
and Privileges Bill 2004 were properly withdrawn from the Assembly.
(4) Whether or not under article 59 a Member could move in the Assembly the East African
Community Trade Negotiations Bill 2004, East African Immunities and Privileges Bill 2004, and
the Inter-University Council for East Africa Bill 2004.
(5) Whether the decisions of the Council are binding on the Assembly under article 16 of the Treaty.
(6) Whether the introduction of a Bill under rule 64(5) of the Assembly Rules of Procedure constitutes
the initiation of the legislative process under those Rules.
(7) Whether or not the decision taken by the Council at its tenth meeting held on 4–8 August 2005 on
the East African Trade Negotiations Bill 2004 is lawful and in accordance with the provisions of
the Treaty.
(8) Whether or not the decision taken by the Sectoral Council at its meeting on 13–16 September 2005
on the East African Community Immunities
Page 242 of [2007] 1 EA 237 (EACJ)

and Privileges Bill 2004 and the Inter-University Council for East Africa Bill, 2004 is lawful and
in accordance with the provisions of the Treaty.
(9) Whether the decisions of the Sectoral Council are binding on the Assembly.
(10) Whether the Council followed the rules of the House to withdraw Bills.
(11) Whether the Council met to make the decision that was communicated to the Speaker by the
Secretary General.
(12) Whether the decision of the Sectoral Council was consistent with its mandate.
(13) Whether the Sectoral Council on Legal and Judicial Affairs by virtue of their decisions taken on
13–16 September 2005 purported to discharge functions bestowed upon the Assembly.
(14) Whether the Council and Sectoral Council on Legal and Judicial Affairs have usurped the powers
of the counsel to the Community, Council of Ministers and the East African Court of Justice as
provided under the Treaty.
(15) Whether the decisions of the Council and those of the Sectoral Council curtailed or interfered with
the Assembly’s functions.
(16) Whether the withdrawal of the Bills by the Council of Ministers as an organ of the Community is
subject to the Assembly’s Rules.
(17) Whether it is obligatory for Council of Ministers to meet so as to communicate the decisions of the
Sectoral Council to the Assembly having directed the Chairperson of the Council through the
Secretary General.
(18) Whether the Partner States have the prerogative on who should attend organ meetings like those of
the Council and Sectoral Council.
In their respective addresses to the Court, counsel argued the issues in clusters because they realised,
quite correctly in our view that many of the issues touched on the same or related points. Unfortunately,
they did not configure the clusters uniformly and so in considering and determining the issues in this
judgment we are not able to follow the order counsel followed in addressing the Court. We find it more
expedient to consider the issues under the following broad headings:
(a) Establishment of the Sectoral Council and its meeting of September 2005.
(b) Status of the contentious Bills.
(c) Relationship of the Council and the Assembly on legislation.
The applicants’ challenge of the validity of the Sectoral Council is two pronged. First, they contend that
the Sectoral Council was not established as envisaged under, or in accordance with the provisions of the
Treaty. Secondly, they contend that the meeting held on 13–16 September 2005 was not a properly
constituted meeting of the Sectoral Council. The two contentions are grounded on (a) the provisions of
article 14 of the Treaty; (b) the decision of the Council at its first Meeting to set up the Sectoral Council;
(c) the attendance list of the meeting of the Sectoral Council held on 13–16 September 2005.
In his submissions on the composition of the Sectoral Council, Professor Ssempebwa pointed out that
the Treaty prescribes membership of the Council to
Page 243 of [2007] 1 EA 237 (EACJ)

consist of Ministers responsible for regional co-operation in each Partner State “and such other Ministers
of Partner States as each Partner State may determine”; and that under article 14, the Treaty empowers
the Council to establish “from among its members” Sectoral Councils to deal with matters that the
Council may delegate or assign to them. He argued that when in its first Meeting held on 8–13 January
2001, the Council adopted a recommendation to constitute meetings of Attorneys-General of the Partner
States into the Sectoral Council on Legal and Judicial Affairs, it acted ultra vires its said power because
it thereby established a body that was not composed of members of the Council.
Professor Ssempebwa further submitted that the Council was not empowered to establish a Sectoral
Council from among persons other than its members. He contended that save for the Attorney-General of
the Republic of Uganda who is designated a Minister under the National Constitution, the
Attorney-General of the Republic of Kenya and the United Republic of Tanzania are not similarly
designated Ministers, and consequently for the purposes of the Treaty those two were not members of the
Council.
In the alternative, he submitted that even if it is held that the Sectoral Council was lawfully
established, the meeting held on 13–16 September 2005 was not a lawfully constituted meeting of the
Sectoral Council. He referred to the report of that meeting in which it is indicated that only the
Attorney-General of Uganda attended in person while the Attorney-General of Kenya was represented by
the Solicitor-General and the Attorney-General of Tanzania was represented by the Deputy
Attorney-General/Permanent Secretary, Ministry of Justice and Constitutional Affairs, both of whom
were clearly not Ministers.
Professor Ssempebwa referred to two principles of interpretation of treaties. One is that the words of a
treaty must be given their natural meaning unless that would lead to some unreasonable or absurd result.
The other is the principle of effectiveness which is that in interpreting a Treaty the Court must ascertain
its objective and give effect to it. He submitted that the objective of the Treaty in creating the Council
was to create a strong policy making organ of the Community composed of persons with authority from
the Partner States to make binding decisions. The Treaty does not leave room for bureaucrats taking over
decision-making at that level.
On the other hand, in his opening address at the hearing, Mr Kaahwa, the learned counsel to the
Community, while acknowledging that the Treaty is the grundnorm of the integration process for the
Community, from which all other legal instruments in the Community derive, subsist and draw legality,
and whose provisions must be strictly adhered to, stressed that the Treaty establishes a framework of
organs and institutions entrusted with specific mandates whose execution must be guided by adherence to
the rule of law and the principles of harmonisation. He also stressed that the Community functions on
basis of consensus as its survival depends on goodwill of the Partner States and harmonious working
relationship with the organs and institutions and on their agreeing on all aspects of the Community’s
development. He urged the court to have these matters in mind in answering the issues before it.
In the response to the application, the respondent maintains that the Sectoral Council meeting held on
13–16 September 2005 was validly convened and constituted and that its decisions are valid. In reply to
Professor Ssempebwa’s first contention, Mr Kaahwa argued at length that the Attorneys General of
Kenya
Page 244 of [2007] 1 EA 237 (EACJ)

and Tanzania fit within the Treaty definition of “Minister” and are therefore potential members of the
Council.
In the course of the submissions Mr Kaahwa as counsel to the Community informed the court from
the bar that membership of the Council is not static. In practice, the full membership is only ascertainable
at the time of meetings, when each Partner State determines its representation depending on the agenda
of the particular meeting. He argued that by virtue of article 13 of the Treaty, each Partner State retains
an executive prerogative to designate its representative(s) on the Council in addition to its Minister
responsible for regional co-operation. He submitted that the exercise of that prerogative may not be
inquired into by the court and cited the case of Uganda v Commissioner of Prisons ex parte Matovu
[1966] EA 645.
He also submitted that the prerogative has been preserved by the Council Rules of Procedure made
under article 15(2) of the Treaty. He maintained that in due exercise of that prerogative, Kenya and
Tanzania designated their respective Solicitor-General and Deputy Attorney-General/Permanent
Secretary to represent their Attorneys General at the meeting of the Sectoral Council, notwithstanding
that they are not Ministers.
In our view, Professor Ssempebwa’s first contention is a departure from the pleadings in this
reference. Throughout the pleadings what was in issue was the composition of the meeting held on 13
and 16 September 2005. All the averments in part ‘A’ of the Reference are concerned with the session of
the Sectoral Council held on 13–16 September 2005. Indeed when the respondent pleaded in paragraph 5
of its response that the Council had established the Sectoral Council at its first meeting, the applicants
retorted in paragraph 3 of their reply to the response thus:
“With regard to paragraph 5 of the Response, the applicants take note that the Council may have established
Sectoral Councils as resolved in pages 28–34 of Annex ‘A’ to the Response. The applicants aver, however,
that the establishment of such Sectoral Council does not touch on the issues raised in the Reference as the
individuals who sat on 13 to 16 September 2005 are not members of the Council under article 14(3)(i) of the
Treaty.” [Emphasis mine.]

As a result, issue one as framed, expressly relates to that session and we take it that issue eighteen also
relates to the same session. However, the question whether the Sectoral Council was established in
accordance with the provisions of the Treaty is a legal one and was canvassed fully. Therefore, we have
to determine it though it did not feature in the pleadings. We agree with the counsel for the applicants
that the Council is empowered under article 14 to establish Sectoral Councils from among its members
only. Membership of the Council under the same article is restricted to Ministers and the Treaty defines a
Minister as follows:
“‘Minister’ in relation to a Partner State, means a person appointed as a Minister of the Government of that
Partner State and any other person, however entitled, who, in accordance with any law of that Partner State,
acts as or performs the functions of a Minister in that State.”

According to the record of the first meeting of the Council held on 8 to 13 January 2001 the delegations
of the Partner States included their respective Ministers responsible for regional cooperation and several
others of diverse portfolios. We take it that those other Ministers were the ones each Partner State
designated as Members of the Council under article 13. We note that the
Page 245 of [2007] 1 EA 237 (EACJ)

delegation of Uganda included the Attorney-General but those of Tanzania and Kenya did not.
It was at that meeting that the Council agreed to designate the Meeting of the Attorneys General of the
Partner States as the Sectoral Council though there is no indication that the Attorneys-General of Kenya
and Tanzania were Members of the Council.
Furthermore, although the Attorney-General of Uganda is, by virtue of article 119 of the Constitution
of the Republic of Uganda, a Cabinet Minister and consequently qualified to be a Member of the
Council, the Attorney-General of Tanzania is not. From our reading of article 54(1) and (4) of the
Constitution of the United Republic of Tanzania the Attorney-General of Tanzania is not a Minister. In
the case of Kenya, however, though the Constitution does not designate the Attorney-General as a
Minister, the Interpretation and General Provisions Act includes the Attorney-General in the definition of
a Minister. On the basis of that law it appears to us that for the purposes of the Treaty the
Attorney-General of Kenya is a Minister as “a person who in accordance with a law of [Kenya] acts as or
performs the functions of a Minister in [Kenya]”.
So, for purposes of the Treaty the two Attorneys General, of Kenya and Uganda, are Ministers.
However, for the Sectoral Council to be properly constituted it must comprise the representatives of all
Partner States. This is underlined by rule 11 of the Rules of Procedure for the Council of Ministers which
provides:
“The quorum of a session of the Council shall be all Partner States representation.”

This must apply to the Sectoral Councils since the decisions of the Sectoral Councils are deemed to be
those of the Council of Minister under article 14(3)(i) of the Treaty.
In the circumstances we find that the establishment of the Sectoral Council was inconsistent with the
provisions of article 14(3)(i). However, since the purported Sectoral Council has been in place from 2001
and by now has, undoubtedly made a number of decisions, which would be unwise to disturb, we are of
the considered opinion that this is a proper case to apply the doctrine of prospective annulment. We order
that our decision to annul the Sectoral Council shall not have retrospective effect.
We think that the doctrine of prospective annulment which has been applied in various jurisdictions,
is good law and practice. See The Court of Justice for European Community in Defrenne v Sabena
[1981] All ER 122; US Court of Appeals fifth Circuit in Linkletter v Walker Warden 381 US [1965] 618;
and the Supreme Court of India in Golak Nath v The State of Punjab [1967] AIR 1643.
As for the second contention by Professor Ssempebwa, we note from Annex ‘A’ to the Reference,
which is a report of the meeting of the Sectoral Council on Legal and Judicial Affairs held on September
13 to 16 2005, that the participants were the Attorney-General/Minister of Justice and Constitutional
Affairs of Uganda, the Deputy Attorney-General/Permanent Secretary, Ministry of Justice and
Constitutional Affairs of Tanzania representing the Attorney-General and the Solicitor-General of Kenya
also representing the Attorney-General. However, by the Treaty the Partner States bound themselves in
articles 13 and 14 to be represented in the Council by their respective Ministers responsible for regional
cooperation and other Ministers only and thereby
Page 246 of [2007] 1 EA 237 (EACJ)

delimited the prerogative of a Partner State in determining its representation on the Council. In the
circumstances the decisions in Uganda v Commissioner of Prisons ex parte Matovu (supra) is not
applicable to the facts of this case.
We note that the Treaty does not provide for the members of the Council or Sectoral Council to be
represented at meetings by non-members. We think that this was deliberate to avoid distortion of the
elaborate structural hierarchy of representation of the Partner States at the different levels in the
organisational framework of the Community. Clearly if members of the coordinating committee, which
reports to Council are allowed to represent members of the Council or the Sectoral Council at their
meetings, the objective of separation of functions of the two organs would be defeated.
We therefore do not see any justification for the respondent’s attempts to make inroads into the very
clear words of article 13 of the Treaty that, Ministers of the Partner States can appoint persons who are
not Ministers to attend meetings of Sectoral Councils or those of the Council purportedly on their behalf.
It is not in dispute that the Deputy Attorney-General of Tanzania and the Solicitor-General of Kenya are
not members of the Council.
We would also like to dispose of the attempt to confuse the purport of article 15(2) of the Treaty by
reading into it a stipulation that discretion still remains in the Partner States to send to the meetings of
Council and those of Sectoral Councils persons who are not Ministers contrary to the requirement of
article 13 of the Treaty. Article 15(2) is concerned with meetings of the Council and determination of
procedure at those meetings. The Council Rules define the expression “Partner State
representatives/representation” to mean a Minister designated to represent such a State in the meetings of
the Council. We do not therefore see how article 15(2) and the Council Rules can be relied upon to show
that there is a discretion still left for the Partner States to send persons who are not Ministers to the
Council or Sectoral Council meetings.
That argument was advanced in an effort to bolster the issue as to whether it is the prerogative of the
Partner States to designate such persons as they deem fit to represent them at lawfully convened meetings
of either the Council or the Sectoral Council. It is quite clear that the formulation of Council rules has
followed faithfully the provision of article 13 of the Treaty and it is not understood in what manner
whatsoever, the Council Rules can be said to permit representation at those meetings by persons other
than those expressly determined in strict compliance with article 13 of the Treaty. We therefore have no
hesitation in reiterating that the meeting of 13–16 September 2005 was not a lawful meeting of a Sectoral
Council and that the decisions it handed down in respect of the two Bills was not valid decision of the
Sectoral Council.
Before we conclude on this aspect of the case, there is a matter to which we would draw attention that
though the composition of the Council is established under article 13 of the Treaty, the total membership
is not readily ascertainable, since it is only the membership of Ministers responsible for regional
cooperation, which is static and ascertainable. We were informed during arguments that membership of
additional Ministers is determined by the agenda of a particular meeting of the Council. We would have
thought that a more transparent way of knowing the composition of Council Members should have been
evolved and put in place by now. This is good sense and good law since it will avoid
Page 247 of [2007] 1 EA 237 (EACJ)

uncertainty which usually degenerates into disputes such as this one before the Court.
Having held, as we have, that the meeting was not a lawful meeting of Sectoral Council on Legal and
Judicial Affairs and that the decisions of the meeting were ipso facto invalid, it is unnecessary to
consider if the said decisions are consistent with its mandate (issue twelve) and binding on the Assembly
(issue nine) and whether the Sectoral Council purported to discharge the functions of the Assembly
(issue thirteen) or usurped the powers of the Council, the Court and/or counsel to the Community (issue
fourteen). We also find that it would be futile to discuss whether the council met and whether it was
obligatory for it to meet in order to make the decisions which were communicated to the Speaker by the
Secretary General (issues eleven and seventeen). In any case it is apparent from the affidavit of Amanya
Mushega, the then Secretary General that the decisions he communicated to the Speaker were made by
the purported Sectoral Council meeting alone.
We would also recall the fact that the issue as to whether Protocols are legally sufficient to render
legislation unnecessary (issue two) was one of those decisions of the meeting of the Sectoral Council
held on 13–16 September 2005 which meeting, we have found elsewhere in this judgment, not to have
been held as required by the Treaty. In view of that finding, this Court would not like to go into that
question of sufficiency or otherwise of Protocols because to do so would be to encroach onto the
jurisdiction of the Assembly.
It is also obvious that because they are invalid, the decisions of that meeting cannot be deemed to be
decisions of the Council under article 14(3)(i) of the Treaty. In his letter to the Speaker, the Secretary
General deemed them to be Council decisions because he assumed wrongly that they were valid. In the
Ministerial Statement to the Assembly, Mr John Koech, did not give as a reason for withdrawal or stay of
the Bills that they were decisions of the Council. In respect of two Bills he said Council was requesting
for postponement and in respect of the other two he asserted that it was the view of the Partner States that
they should be withdrawn.
Issues three, six, ten and sixteen concern the introduction and withdrawal of Bills from the Assembly.
The debate in the Assembly is contained in the Hansard of 27 September 2005 when the Speaker directed
that it was up to the owners of the Bills, to decide whether to continue with the Bills in the Assembly or
let the Council take over the Bills. Thereupon the issue was shelved for debate on a future occasion. We
would here refer to Mr Kaahwa’s helpful concession on behalf of the respondent that the Assembly
Rules also bind the members of the Council who are members of the Assembly.
We also see that under article 59(1) of the Treaty any member of the Assembly may introduce a Bill.
This shows that the Council does not have exclusive legislative initiative in the introduction of Bills in
the Assembly. In that connection, we appreciate the difficulty faced by the Assembly upon receipt of the
letter by the Secretary General which made it quite clear that the matter in controversy between the
Assembly and the Council had reached an impasse and had to come to court for the opposing views on
the interpretations of the Treaty to be resolved. Mr Marando drew our attention and we agree with him,
and since it was also conceded by the respondent in argument before us, that the Inter-University Bill as
well as the Immunities and Privileges Bill had
Page 248 of [2007] 1 EA 237 (EACJ)

undergone the first reading, and had in our view, become property of the Assembly.
Accordingly, we see no basis, upon which the view that the four Bills had been taken over by the
Council, can be supported because the Treaty has not bestowed any power on the Council to take over
Bills without observance of the Assembly Rules and we hold that the only lawful way of withdrawing
Bills which have become property of the Assembly, as the four Bills had become, is under rule 34 of the
Assembly Rules which provides for a motion to be introduced in the Assembly for that purpose. The
motion requirement is because the four Bills which were Private Members Bills; were introduced into the
Assembly by means of motions. In its relevant parts rule 34 says:
“34 (1) A motion or an amendment to the motion may be withdrawn at the request of the mover by
leave of the House or Committee before the question is put.”

We therefore find that the appearance before the Assembly of Mr Koech, a Member of Council on behalf
of the Chairperson, without more, is ineffective as a means of withdrawing the Bills, in that a bare
statement which was not a motion to withdraw any of the Bills does not accord with the requirement of
rule 34 aforesaid and so in our opinion, was the letter dated 16 September 2005 addressed by the
Secretary General to the Speaker of the Assembly. We accept that once a Bill is in the Assembly, its
permission must be sought to withdraw such a Bill. The permission requirement applies irrespective of
whether the Bill in question had been a Private Member’s Bill or a Community Bill.
Issue five is whether the decisions of the Council are binding on the Assembly under article 16 of the
Treaty. The issue arose because of the respondent’s contention that the decision of Council given
pursuant to article 14 of the Treaty override the bar stipulated in article 16 thus: “other than the Summit,
the Court and the Assembly within their areas of jurisdictions.” The respondent further submitted that
because of the all embracing power of the Council under article 14, the Assembly is bound by the
Council decision to withdraw the Bills.
However, the applicants dispute that contention on the basis of article 49(1) of the Treaty which is on
the Assembly’s functions and also drew attention to article 14(3)(b) of the Treaty which has as one of the
functions of the Council, the initiation of legislation; but the article does not imply that the Council has
the power to withdraw Bills at will unless in terms of the Assembly Rules.
Mr Ssempebwa examined article 16 of the Treaty which provides that decisions of the Council bind
other organs and institutions of the Community “other than the Summit, the Court and the Assembly
within their jurisdiction”. He emphasised those words which he said are meant to underscore the
separate and independent jurisdictions of these organs of the Community. The matter at issue in this
respect is withdrawal of Bills which have become the property of the Assembly and therefore within its
jurisdiction.
We would like to draw attention to the provisions of paragraph (3)(c) of article 14 which provides:
“(3) For purposes of paragraph 1 of this article, the Council shall:
(c) Subject to this Treaty, give directions to the Partner States and to all other organs and
institutions of the Community other than the Summit, Court and Assembly.”
Page 249 of [2007] 1 EA 237 (EACJ)

We are of the firm view that the combined effect of explicit provisions in article 14(3)(c) and article 16 is
to dispel any notion that the decisions of the Council albeit on policy issues bind the Assembly in respect
of any matter within its jurisdiction.
We think the interpretation of article 16 of the Treaty is a core issue underlying this application and
would refer to it in its entirety not only to deal with the opposing assertions of the parties but to bring to
light certain inelegancies detected in the Table of Contents of that article, its heading in the body of the
Treaty and finally its actual contents. Article 16 is as follows:
“Subject to the provisions of this Treaty, the regulations, directives and decisions of the Council taken or
given in pursuance of the provisions of this Treaty shall be binding on the Partner States, on all organs and
institutions of the Community other than the Summit, the Court and the Assembly in their area of
jurisdictions, and those to whom they may under the Treaty be addressed.”

There is a variance between what the Table of Contents of the Treaty has for article 16 as “Effect of
Regulations, Directives, Decisions and Recommendations of the Council” together with the heading of
the article which also has the word “recommendations” included while the body of article 16 does not
include that word “recommendations”. This is obviously an inelegant drafting which should be corrected
either to eliminate the word “recommendations” from the Table of Contents and from the heading of the
article or amend the article to include that word in the body of the article as well because it will one day
lead to some uncertainty which should be avoided by a corrective amendment.
We see sense in the applicants’ submission that since the Assembly is a representative organ in the
Community set up to enhance a people centred co-operation, its independence under article 16 of the
Treaty should be preserved because the Treaty has not endowed the Council with any power to interfere
in the operation of the Assembly. We agree and it is our view that article 16 of the Treaty does not bear
the meaning ascribed to it by the respondent in which it contended that decisions of Council bind the
Assembly, article 16 of the Treaty notwithstanding. In light of articles 14 and 16, we have come to the
conclusion that decisions of the Council have no place in areas of jurisdiction of the Summit, Court and
the Assembly.
Issue four is whether or not under article 59 of the Treaty a member could move in the Assembly the
Trade Negotiations Bill, the Immunities and Privileges Bill, and the Inter-University Council Bill. The
respondent pleaded in paragraph 9 of the response as follows:
“At its ninth meeting held on 24 November 2004, the Council decided that policy oriented Bills such as those
that have implications on the Partner States’ sovereign interests and on the budgetary aspects of the
Community ought to be submitted to the Legislative Assembly by the Council under article 143(b) of the
Treaty as opposed to being proposed or introduced by any member of the Assembly under article 59 of the
Treaty. The Council, therefore, assumed responsibility for ‘The East African Community Trade Negotiations
Bill, The East African Community Budget Bill, The East African Community Immunities and Privileges Bill
and The Inter-University Council for East Africa Bill’ as Council Bills for consideration and submission to
the Legislative Assembly.”

In paragraph 10 of the response the respondent pleaded that protocols can sufficiently provide for
immunities and privileges for the Community and also for the Inter-University Council for East Africa.
Issues two and four arose from the above pleadings by the respondent.
Page 250 of [2007] 1 EA 237 (EACJ)

Article 59 States:
(1) Subject to the rules of procedure of the Assembly, any member may propose any motion or
introduce any Bill in the Assembly:
Provided that a motion which does not relate to the functions of the Community shall not be
proposed in the Assembly, and a Bill which does not relate to a matter with respect to which Acts
of the Community may be enacted shall not be introduced into the Assembly.
(2) The Assembly shall not:
(a) Proceed on any Bill, including an amendment to any Bill that, in the opinion of the person
presiding, makes provision for any of the following purposes:
(i) For the imposition of any charge upon any fund of the Community;
(ii) For the payment, issue or withdrawal from any fund of the Community of any moneys
not charged thereon or the increase in the amount of any such payment, issue or
withdrawal;
(iii) For the remission of any debt due to the Community; or
(b) Proceed upon any motion, including any amendment to a motion, the effect of which, in the
opinion of the person presiding, would be to make provision for any of the said purposes.
There is no doubt that article 59 provides for introduction of Private Member’s Bills. It is also clear to us
that both paragraphs (1) and (2) provide restrictions to the general power of legislation by the Assembly.
The proviso to paragraph (1) prohibits the introduction of any motion in the Assembly which does not
relate to the functions of the Community and does not relate to a matter with respect to which Acts of the
Community may be enacted. Paragraph (2), on the other hand, prohibits the Assembly from proceeding
with any Bill which imposes a charge on any fund of the Community. It is abundantly clear to us that the
prohibition under the two paragraphs apply to any member of the Assembly, both the members and also
the Council when introducing Bills in the Assembly.
Therefore the question is not whether or not in view of article 59(1) the three Bills or any one of them
could be moved by a member but whether they could be moved in the Assembly at all. To be able to
determine that question would have required us to delve into the provisions of the Bills in great detail.
Since we have elsewhere in this judgment found that the Bills are still pending before the Assembly and
fortunately that is the view of all the parties to the reference, we deem it wise not to make such an
investigation as to whether the Bills are within the ambit of article 59(1) or not. The proper course to
take, we think, is to leave it for whoever is aggrieved with any of the Bills, in the context of article 59,
when they are taken on again in the Assembly, to raise the matter in the Assembly.
We will, however, make some general observations on the submissions of the parties regarding the
provisions of article 59. In their submission on issue four the applicants submitted that under article 59
which provides for Private Member’s Bills, there is no restriction on introduction of Bills based on policy
orientation and that apart from Bills that impose a charge on the fund of the Community or issue or
withdrawal from any fund of the Community or the
Page 251 of [2007] 1 EA 237 (EACJ)

remission of any debt due to the Community, a member of the Assembly may introduce any Bill.
With great respect we do not share that view. We have already stated that the proviso to article 59(1)
prohibits the introduction of any motion in the Assembly which does not relate to the functions of the
Community or does not relate to a matter with respect to which an Act of the Community can be enacted.
We have also stated that the prohibition applies to both the Council and any member.
The respondent’s contention in paragraph 9 of the response was not confined simply to policy
oriented Bills but it went on to describe them as “those that have implications on the Partner States’
sovereign interests.” What it means is that the competence of the Community is restricted to matters
which are within its jurisdiction. Any matter which is still under the exclusive sovereignty of the Partner
States is beyond the legislative competency of the Community. The Assembly is a creature of the Treaty
like the other Organs of the Community and such an Organ can only have competence on matters
conferred upon it by the Treaty. The Assembly has no power to legislate on matters on which the Partner
States have not surrendered sovereignty.
Issue seven is whether or not the decision taken by the Council at its tenth meeting held on 4–8
August 2005 on the East African Community Trade Negotiations Bill is lawful and in accordance with
the provisions of the Treaty. We have already held that the Bill was not withdrawn from the Assembly.
All that the Council did was to seek a stay of the debate while a study on the development of trade
legislation is being undertaken and concluded. We therefore find that the decision of the Council in this
respect is within its powers under article 14 of the Treaty and no fault may be ascribed thereto.
We would like, while commending all counsel who appeared and addressed us in this case, especially
to commend the very useful and helpful submissions addressed to us by counsel for the amicus curiae
who very ably and conscientiously assisted the Court without any attempt to side with any other party in
the reference. The Court, as a friend of the amicus curiae, was guided accordingly.
On costs, Professor Ssempebwa urged the Court as to what orders to make in the event his clients’
application succeeds. He indicated that the applicants are content with an order that their disbursements
be paid by the respondent and would not insist on an order for full costs in their favour. That is because
the applicants see their application being for the general public good and interest in the East African
Region and any litigation of this kind should be encouraged especially by the Community, which should
show the way by indemnifying these applicants on their disbursement and any future litigants against
costs occasioned by such litigation. The applicants, as we can see it, have succeeded in almost all their
prayers. Though Mr Kaahwa had urged that costs should follow the event, we find Professor
Ssempebwa’s submission acceptable to us. We therefore award costs of the application to the applicants
and leave them to restrict their bill of costs and for the taxing officer to limit the taxation thereof to those
disbursements.
For the appellants:
Professor FE Ssempebwa, Mr DW Ogalo, Mr M Marando, Mr MS Kaggwa and Mrs SN Bagalaaliwo
For the respondent:
Mr W Kaahwa, Ms Makena Muchiri, Mr SN Tuimising and Ms Isabelle Waffubwa

Nagoli v Attorney-General and another

 [2007] 1 EA 252 (CCU)

Division: Constitutional Court of Uganda at Kampala

Date of ruling: 24 October 2006
Case Number: 7/06
Before: Okello, Twinomujuni, Kitumba, Byamugisha and Kavuma JJA
Sourced by: LawAfrica
Summarised by: E Dimba

[1] Constitutional law – Reference – Cause of action – Article 137(5) of the Constitution of Uganda –
Whether reference disclosed a cause of action – Matter complained of arising out of contract – Matter
undetermined by the trial court – Whether matter may be challenged as illegal or unconstitutional –
Jurisdiction of Constitutional Court under article 137(3) – Whether reference maintainable under article
137(5)(a) – Jurisdiction of the Constitutional Court under article 135(5)(b) – Matters to be borne out by
the court’s record when making a reference – Whether the petition should be disqualified.

Editor’s Summary
In 1995, the Ministry of Finance, Planning and Economic Development (“MFPED”) offered to sell a
property that was being administered by the Departed Asians Property Custodian Board (“DAPCB”)
under the authority of section 9 of the Expropriated Properties Act 1982 (“EPA”) (Chapter 87) on behalf
of the MFPED.
The petitioner and MFPED signed an agreement for the sale of the property pursuant to which the
petitioner paid a deposit and undertook to pay the balance within 60 days from the date of the agreement.
The sale agreement was however terminated; an offer for refund of the deposit was made to the petitioner
and the property sold to the second respondent who became the registered owner thereof. The petitioner
filed an appeal against the Minister’s decision in accordance with section 15 of the EPA on grounds,
inter alia, that the Minister’s decision contravenes the principle of audi alteram partem contrary to
articles 20 and 44(1) of the Uganda Constitution.
The trial Judge suo motu decided that substantial constitutional issues would arise during trial which
would require interpretation of the Constitution whereupon in accordance with article 137(5) thereof he
framed and referred to the Constitutional Court for interpretation, whether the Minister’s decision
contravened the principle of audi alteram partem and articles 20 and 44(c) of the Constitution, whether
the Minister acted contrary to article 42 of the Constitution and whether the Minister contravened articles
20 and 21(1),(2) and (3) of the Constitution.
Held – On face of record, the reference issues as formed by the trial Judge disclosed a cause of action
within the meaning of article 137(5) of the Constitution. However, the reference could not be maintained
in law because the acts of the Minister complained of arise out of a written contract and until they had
been determined, they could be challenged as illegal or unconstitutional.
Had there been a petition under article 137(3) of the Constitution, the court would have had the option
of hearing it thereby determining the contractual and constitutional issues or referring the contractual
issue to the High Court first before resolving the constitutional issues.
Page 253 of [2007] 1 EA 252 (CCU)

The reference was not maintainable in law under article 137(5)(a) of the Constitution.
The High Court may if it is of the opinion that the question (as to interpretation of the Constitution)
involves a substantial question of law, refer the question to the Constitutional Court for interpretation.
The High Court in so doing must consider:
(a) whether there is a constitutional question requiring interpretation of the Constitution under article
137(1); and
(b) whether the question involves a substantial question of law.
If the answer to both the above stated questions is in the negative then the question of reference does not
arise at all. If the answer to both is in the affirmative, then the trial Judge may refer the question to the
Constitutional Court and must refer the question if requested by a party or parties to the proceedings.
If the answer to first stated question is in the negative, then the second stated question does not arise
and therefore no reference can be made.
The decision to make a reference is entirely in the discretion of the trial Judge guided by article
137(5)(a) of the Constitution.
Compliance with article 137(5)(b) of the Constitution will follow only if:
(i) there is a question for interpretation (article 137(1) and (3) of the Constitution); and
(ii) the question involves a substantial question of law.
Every competent court exercising its jurisdiction can interpret the Constitution if it arises from a suit or
matter before it. This is only subject to the conditions stated in article 137(5)(a) and (b) of the
Constitution. The mandatory provision of article 137(1) is only confined to petitions brought or to be
brought under article 137(3) of the Constitution. It does not apply to references under article 137(5)
where the trial Court exercises discretion to make a reference or not.
When making a reference, the record of the court should clearly show that the conditions of article
137(5)(a) and (b) were considered and the record should show that:
(i) the trial Court considered and held the opinion that a matter requiring interpretation of the
Constitution within the meaning of article 137(3) is involved;
(ii) the matter involves a substantial point of law; and
(iii) whether the reference is on the court’s own motion or which party or parties requested for a
reference.
When the acts complained of by the plaintiff arise from contractual obligations or from the application or
misapplication of a court order or an order of any competent tribunal, then such acts should be
investigated by the High Court and their appropriateness should be determined before a making reference
for constitutional interpretation.
Whilst the trial Judge considered that there existed issues requiring constitutional interpretation, the
record of the court does not show that the interpretation involved a substantial question of law and which
questions of law were in the trial Judge’s opinion involved.
Page 254 of [2007] 1 EA 252 (CCU)

If it is not shown that the interpretation involves a substantial question of law, the reference should be
disqualified and should not be entertained by the Constitutional Court. The record of the court did not
disclose that the trial Judge had to make the reference because neither of the parties requested for it.
Reference disqualified.

Cases referred to in ruling

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East African
Alenyo v Attorney-General and others constitutional petition number 5 of 2002
Ismail Serugo v Kampala City Council and another constitutional appeal number 2 of 1998
Nurdin Ali Dewii and others v Maghji and others (1953) 20 EACA 132
Wycliffe Kiggundu Kato v Attorney-General civil appeal number 27 of [1993] (SC)(UR)

Ruling
Okello JA: This is a constitutional reference from the High Court of Mbale [Muhanguzi J] who, during
the hearing of Civil Appeal number HCT-04-CV-CA 0003/2003, decided on his own motion, that
substantial constitutional issues would arise during the trial, which would require interpretation of this
Court in accordance with article 137(5) of the Constitution. He framed the issues and referred them to
this Court for interpretation.
In order to understand the issues, it is desirable to put them in their proper context by giving a brief
background to the civil appeal now pending in the High Court at Mbale. The facts of the suit, which are
disputed by both parties, appear to be that in 1995 the Ministry of Finance, Planning and Economic
Development (“MFPED”) offered to the public for sale Plot number 21 Kumi Road in Mbale
Municipality. The property was then being administered by the Departed Asians Property Custodian
Board (“DAPCB”) under the authority of section 9 of the Expropriated Properties Act, 1982 (“EPA”)
(Chapter 87) on behalf of the MFPED. The petitioner who was then a sitting tenant of DAPCB, applied
to purchase the property. By an agreement on 10 November 1995, the petitioner and the MFPED signed a
sale agreement in which the petitioner agreed to purchase the property at UShs 12 100 451. He paid 10%
of the purchase price and undertook to pay the balance within sixty (60) days from the date of the
agreement. According to the first respondent, despite several reminders and extensions to the petitioner
to meet his contractual obligations, he persistently failed to pay for the property. In 1998 it terminated the
sale agreement, offered to refund the 10% payment and resold the property to the second respondent,
who became the registered owner thereof in 1999. According to the petitioner, in 1998, the first
respondent unilaterally terminated the sale agreement without giving notice or a hearing to him at all. He
filed an appeal against the Minister’s decision in accordance with section 15 of the EPA, 1982 (Chapter
87) relying on the following five grounds:
Page 255 of [2007] 1 EA 252 (CCU)
“(i) Because the Honourable Minister’s decision was made after the same had waived or/accepted
payments of the purchase price after the time had expired.
(ii) Because the Honourable Minister’s decision contravenes the principle of audi alteram partem as the
appellant was not given a fair hearing contrary to articles 20 and 44(c) of the Uganda Constitution,
1995.
(iii) Because the Honourable Minister erred in that he exercised his powers by acting arbitrarily contrary to
article 42 of the Uganda Constitution 1995.
(iv) Because the decision of the Minister contravenes the provisions of articles 20 and 21 of the Uganda
Constitution, 1995.
(v) The appellant will contend that the respondent became the registered proprietor of Plot 21 Kumi Road
through fraud and as such, his title cannot be maintained in law. Particulars of fraud were
enumerated.”

After perusing through all the pleadings and documents annexed to them, the learned trial Judge made
the following ruling:
“On 13 October 2005 when the appeal was called on for hearing in presence of counsels for the three parties
and by all their consent court ordered that all parties file written submissions. The appellant filed submissions
on 25 October 2005 while first respondent filed his on 11 November 2005 and second respondent filed his
submissions on 15 November 2005. On 21 November 2005 the appellant filed a joint written rejoinder to
both respondents’ submissions.
When court considered both the grounds of appeal and the submissions of all parties in support and in
opposition to the appeal, court deemed it necessary to make the following ruling and orders before embarking
on final judgment in the appeal.
Every ground of appeal raised by the appellant is contested by the respondent and hence raises the issues here
below:
(1) Whether the Minister’s decision being appealed against was made after acceptance of the purchase
price payments after expiry of the agreed time.
(2) Whether the Minister’s decision contravenes the principle of audi alteram partem and articles 20 and
44(c) of the Constitution of Uganda.
(3) Whether the Minister acted arbitrarily contrary to article 42 of the Constitution of Uganda.
(4) Whether the Ministers contravened articles 20 and 21(1), (2) and (3) of the Constitution of Uganda
1995.
(5) Whether the second respondent became the registered proprietor of the suit through fraud and as such,
its title is not maintainable at law and should be cancelled.”

Court noted that while some of the said issues for instance number one and number five have no bearing
on the Constitution the remaining issues, namely: number two, three and four above are about
contravention of the Constitution.
In this Court’s view, the three aforesaid issues are not merely alleging contravention of the
constitution, but do call for interpretation of the various articles of the Constitution cited therein. All
three issues do call for determination of whether the Minister’s decision or conduct contravened articles
20, 21 42 and 44 of the Constitution. In order to do so the court must determine the meaning of the
specified provisions of the Constitution allegedly contravened and whether the Minister’s conduct or
decision complained of actually violated those provisions. That exercise to be carried out by court is an
interpretation of
Page 256 of [2007] 1 EA 252 (CCU)

the Constitution. It is not endorsement of rights and freedoms. The court is being called upon to interpret
the Constitution. See the case of Alenyo v Attorney-General and others constitutional petition number 5
of 2002.
The learned trial Judge then observed that, if the petitioner had wished, he had an option to file a
constitutional petition under article 137(3) of the Constitution instead of the civil appeal but decided that
since the civil appeal was already filed in court, it was necessary for him to make a reference in
accordance with article 137(5) of the Constitution so that the constitutional issues are resolved before he
disposes of the civil appeal before him, hence this reference.
The learned trial Judge then framed the following three issues which, in his view, required
interpretation by this Court:
(1) Whether the Minister’s decision contravenes the principle of audi alteram partem and articles 20
and 44(c) of the Constitutional of Uganda.
(2) Whether the Minister acted arbitrarily contrary to article 42 of the Constitution of Uganda.
(3) Whether the Minister contravened articles 20 and 21(1), (2) and (3) of the Constitution of Uganda
1995.
When the reference came up for hearing before us, Mr Moses Musiiho represented the petitioner. Mr
Hosea Lwanga, Senior State attorney, represented the first respondent and Mr David Nyote represented
the second respondent. Mr Lwanga applied to raise a preliminary point of law, which application was
granted. Mr Lwanga submitted that the relationship of the petitioner and the first respondent over Plot 21
Kumi Road, Mbale, was a purely contractual relationship governed by the law of contract. He pointed out
that the petitioner agreed to purchase the property and to pay for it within 60 days from the date of the
agreement. The petitioner, despite many reminders and extensions, failed to pay for the property for three
years. The first respondent rescinded the contract, as he was entitled to under the law of contract. No
notice or hearing was provided for, expressly or by implication in the contract of sale. In his view, this
matter should have been resolved by the trial court because there are no matters requiring constitutional
interpretation. Allegations of contravention of audi alteram partem and arbitrariness by the first
respondent do not arise. In any case even if they arose, they could not be relied upon until the contractual
obligations of the parties were determined. That’s what the High Court in Mbale should have done. He
invited this Court to hold that there was no matter requiring constitutional interpretation in this reference
and to dismiss it as being frivolous and vexations, with costs to the respondents.
Mr Musiiho, learned counsel for the petitioner conceded that the relationship between the petitioner
and the first respondent was indeed a contractual one but he asserted that the decision to make a
reference to this Court was taken solely by the trial Judge on his own motion without any application
from counsel. He was very reluctant to offer his own views as to whether the three issues which were
framed for constitutional interpretation by the trial court disclosed a course of action under article 137 of
the constitution in general and article 137(5) of the Constitution in particular. However, he insisted that
his client was not guilty of any breach of contract under the sale agreement. He asked us to dismiss the
preliminary point of law and to proceed with the reference.
Page 257 of [2007] 1 EA 252 (CCU)

Mr David Nyote, learned counsel for the second respondent associated himself wholly with the
arguments raised by Mr Lwanga for the first petitioner.
It is now trite from the many pronouncements of the Supreme Court and this Court that the
jurisdiction of this Court is clearly and exclusively spelt out in article 137 of the Constitution. This Court
will not entertain matters falling outside its preview, however much litigants may feel that they have a
bearing on the provisions of the Constitution. Since we shall be referring to the article several times in
this ruling, it is pertinent to reproduce the same hereunder:
“Article 137:
(1) Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal
sitting as the Constitutional Court.
(2) When sitting as a Constitutional Court, the Court of Appeal shall consist of a bench of five members of
that Court.
(3) A person who alleges that:
(a) An Act of Parliament or any other law or anything in or done under the authority of any law; or
(b) Any act or omission by any person or authority, is inconsistent with or in contravention of a
provision of this Constitution, may petition the Constitutional Court for a declaration to that
effect, and for redress where appropriate.
(4) Where upon determination of the petition under clause (3) of this article the Constitutional Court
considers that there is need for redress in addition to the declaration sought, the Constitutional Court
may:
(a) Grant an order of redress; or
(b) Refer the matter to the High Court to investigate and determine the appropriate redress.
(5) Where any question as to the interpretation of this constitution arises in any proceedings in a court of
law other than a field court martial, the court:
(a) May, if it is of the opinion that the question involves a substantial question of law; and
(b) Shall, if any party to the proceedings request it to do so, refer the question to the Constitutional
Court for decision in accordance with clause (1) of this article.
(6) Where any question is referred to the Constitutional Court under clause (5) of this article, the
Constitutional Court shall give its decision on the question and the court in which the question arises
shall dispose of the case in accordance with that decision.
(7) Upon a petition being made or a question being referred under this article, the Court of Appeal shall
proceed to hear and determine the petition as soon as possible and may, for that purpose, suspend any
other matter pending before it.”

In order to dispose of this preliminary point, it will be necessary for us to provide answers to two
pertinent questions:
(a) Do the three issues framed by the learned trial Judge (supra) or any of them disclose a cause of
action within the meaning of article 137 of the Constitution?
(b) If the answer to (a) is wholly or partly in the affirmative, did the trial Judge have to make a
constitutional reference to this Court under article 137(5) of the Constitution?
Page 258 of [2007] 1 EA 252 (CCU)

Cause of Action under article 137 of the Constitution:

Mr Lwanga did not specify under what provision of the law he wanted us to dismiss this petition. In the
case of Ismail Serugo v Kampala City Council and another constitutional appeal number 2 of 1998, the
Supreme Court (per Mulenga JSC) stated that it is always necessary in these type of applications to
specify the provisions of the law under which an application to strike out a petition was based. This is
necessary in order to make a distinction between applications based on Order 6, rules 27 and 28 and
Order 13, rule 2 which empowers courts to decide suits on points of law only, on one hand, and Order 6,
rule 29 and Order 7, rule 11 which are concerned with defective pleadings on the other. As it is well
established under the rules of the Constitutional Court, the above rules of civil procedure do apply to
proceedings in the Constitutional Court. The need to keep these distinctions in mind was also underlined
in the case of Nurdin Ali Dewii and others v Maghji and others (1953) 20 EACA 132 and Wycliffe
Kiggundu Kato v Attorney-General civil appeal number 27 of [1993] (SC) (UR).
Applying this distinction to the case of Serugo v KCC (supra) Justice Mulenga observed:
“In my view, the same distinction has to be drawn between an application to strike out a plaint under Order 6,
rule 29 and one for determination of a suit on a point of law. In the instant case, as in Nudrin’s case, it is quite
evident also, that the basis for the holding by the Constitutional Court, that the petition disclosed no cause of
action against the respondents was not any defect inherent in the petition. The basis was rather that the
petition was not maintainable in law by reason of the defence each respondent pleaded.”[Emphasis mine.]

Now, if we understood Mr Lwanga well, he did not challenge the jurisdiction of this Court to entertain
the reference nor did he challenge the framed issues on the grounds that they did not disclose a cause of
action within the meaning of article 137 of the Constitution. The basis of his application is that the
reference is not maintainable in law by reason of the defence each respondent pleaded. [Emphasis mine.]
The defence which was pleaded was that the relationship between the petitioner and the first
respondent was a purely contractual relationship arising from a contract of sale signed by both parties
and that no rights or obligations arising out of it can be the subject of constitutional adjudication until
such rights and obligations have been determined by a competent court – in the instant case, the High
Court in Mbale. As we have already seen above, Mr Musiiho’s reply was that it was the trial Judge who
took it upon himself to refer the case to this Court and that in his view, the trial Judge was entitled to take
that course of action. He did not dispute the assertion by the respondents that the rights and obligation of
the parties are contractual and can only be determined by the interpretation of the contract by the High
Court.
We hold the view, that the reference issues as framed by the learned trial Judge, on their face value,
do disclose a cause of action within the meaning of article 137(5) of the Constitution. However, the
reference cannot be maintainable in law because the acts of the Minister complained of, arise out of a
written contract and until they have been determined in the civil appeal now pending in the High Court in
Mbale, they cannot be challenged as illegal or unconstitutional. For example, the petitioner claims that
this lease offer was cancelled
Page 259 of [2007] 1 EA 252 (CCU)

without giving him a hearing. He claims this to be a contravention of his rights guaranteed under article
28 of the Constitution. Before this Court can go into that, it has to be determined whether there was a
breach of the contract by any party and whether under the contract, the petitioner was entitled to a
hearing before cancellation of the lease offer. Before this Court can determine whether the actions of the
minister were arbitrary, the court would have to look at the contractual obligations of each party before
finding that any actions arising therefrom were arbitrary. That is exactly what the trial court was being
asked to do and the suit is still pending in the High Court. The reference was pre-mature and cannot be
maintained in law until those contractual issues have been determined.
We must hasten to clarify that if this had been a petition under article 137(3) of the Constitution, we
would have had the option of hearing it and in the process determining the contractual and the
constitutional issues or referring the contractual issue to the High Court first before resolving the
constitutional issues. This reference is not maintainable in law. The preliminary objection to the
reference on a point of law must therefore succeed.
When to make a reference under article 137(5) of the Constitution:
The finding that the reference cannot be maintained in law is enough to dispose of it. However, we
wish to discuss the appropriateness of the reference for guidance of trial Judges who have to make the
decision. For ease of reference, we repeat the provisions of article 137(5):
“(5) Where any question as to the interpretation of this Constitution arises in any proceedings in a court of
law other than a Field Court Martial, the court:
(a) May, if it is of the opinion that the question involves a substantial question of law; and
(b) Shall, if any party to the proceedings requests it to do so, refer the question to the Constitutional
Court for decision in accordance with clause (1) of this article.”

It will be seem from article 137(5)(a) (supra) that the High Court may, if it is of the opinion that the
question (as to the interpretation of the Constitution) involves a substantial question of law, refer the
question to this Court for interpretation. The High Court must consider:
(a) Whether there is a constitutional question requiring interpretation of the Constitution under article
137(1).
(b) Whether the question involves a substantial point of law.
If the answer to both questions above is in the negative, then the question of references does not arise at
all. If the answer to both is in the affirmative, then the trial Judge may refer the question to this Court and
must refer the question, if requested by a party or parties to the proceedings. If the answer to (a) above is
in the negative, then question (b) does not arise and therefore no reference can be made.
The sum total of all this is that the decision to make a reference to this Court is entirely in the
discretion of the trial Judge guided by article 137(5)(a). Compliance with article 137(5)(b) will follow
only if:
(i) There is a question for interpretation [article 137(1) and (3) of the Constitution].
(ii) The question involves a substantial question of law.
Page 260 of [2007] 1 EA 252 (CCU)

We may appear here to be repetitious but we mean to point out to the trial courts that many references are
being made to this Court without due regard to whether they fulfill the conditions set out in article 137(5)
of the Constitution. This has the effect of congesting this Court with matters which could be easily
disposed of by the trial court without reference to the Constitutional Court.
We are aware of the provisions of article 137(1), which states:
“Any question as to the interpretation of the Constitution shall be determined by the Court of Appeal sitting
as the Constitutional Court.”[Emphasis mine.]

Many members of the legal profession have come to interpret this provision to mean that all matters of
the constitutional interpretation can or must only be done in the Constitutional Court. We think that, that
interpretation is not correct. Courts of law have the power to apply the laws of this country in the
determination of disputes. Those laws include the Constitution. Every competent court exercising its
jurisdiction can interpret the Constitution if it arises from a suit or matter before it. That is only subject to
the conditions stated in article 137(5)(a) and (b) of the Constitution. The mandatory provision of article
137(1) is only confined to petitions brought or to be brought under article 137(3) of the Constitution. It
does not apply to references under article 137(5) where the trial court exercises a discretion to make a
reference or not to.
When making a reference, the record of the court should clearly show that the conditions of article
137(5)(a) and (b) were considered and complied with.
The record should show that:
(i) The trial court considered and held the opinion that a matter requiring interpretation of the
Constitution within the meaning of article 137(3) is involved.
(ii) The matter involves substantial points of law; and
(iii) Whether the reference is on the court’s own violation or which party or parties requested for a
reference.
When the acts complained of by the plaintiff arise from contractual obligations or from the application or
misapplication of a court order or an order of any competent tribunal, then such acts should be
investigated by the High Court and their appropriateness should be determined before making a reference
for constitutional interpretation.
In the instant case, the record of the High Court shows that the learned trial Judge considered that
there existed in the suit, issues requiring constitutional interpretation. However, it does not show that the
interpretation involved a substantial questions of law, and which questions of law were in his opinion
involved. If it is not shown that the interpretation involves a substantial question of law, the reference is
disqualified and cannot be entertained by this Court. The record of the court does not disclose that he had
to make the reference because any party requested for it. In our view, if the learned trial Judge had
considered the provisions of article 137(5) carefully, he would have found that no reference to this Court
was necessary at that stage of the trial.
We wish to advise that decisions to make references to this Court should not be taken lightly. In many
cases, the civil suit in which the reference is made will have been pending in that Court for very many
years. The decision to refer questions to this Court will have the effect of putting off the trial for another
year or two, which often leads to the frustration of the parties to the suit. It can
Page 261 of [2007] 1 EA 252 (CCU)

also open the door to abuse of court process by a party who does not want to see the suit disposed off.
This is why we must insist that if a reference has to be made at all, it should be made strictly in
accordance with article 137(5) of the Constitution.
We also wish to draw the attention of the members of the legal profession that there are new rules
pertaining to the procedure to be followed under article 137(3) and (5) of Constitution. They are called
the Constitutional Court (Petitions and References) Rules 2005. They are published as statutory
instrument number 91 of 2005. They came into force on 10 November 2005. Part III of the rules contains
the procedure to be followed in making references under article 137(5) of the Constitution. It should be
noted that Form II to the schedule to the rules mentioned therein requires that, the referring Judge or
Magistrate, the parties and or their counsel or the accused or his counsel as the case may be, sign the
reference. We have received many references which do not conform to the rules.
The first respondent’s point of law in opposition to the reference has merits and is allowed. The
record of civil appeal number HCT-04-CV-CA 0003/2003 should be transmitted to the High Court in
Mbale for that Court to resolve the apparent contractual issues involved. Any party who still thinks there
are constitutional issues involved can always proceed in accordance with article 137(3) of the
Constitution.
(Twinomujuni, Kitumba, Byamugisha and Kavuma JJA concurred in the decision of Okello JA)

For the appellant:

Mr Moses Musiiho
For the first respondent:
Mr Hosea Lwanga
For the second respondent:
Mr David Nyote

Nation Media Group Limited v Attorney-General

[2007] 1 EA 261 (HCK)

Division: High Court of Kenya at Nairobi

Date of ruling: 13 February 2007
Case Number: 821/02
Before: Nyamu and Makhandia JJA
Sourced by: LawAfrica
Summarised by: E Ongoya

[1] Constitutional law – Constitutional interpretation – Principles of constitutional interpretation.

[2] Constitutional law – Fundamental Rights and Freedoms – Limitations to freedom of expression –
Test to be met by limitations – Principles of reasonableness, proportionality, legality.

Editor’s Summary
The Minister for Information, Transport and Communication issued Gazette Notice number 4014 dated 6
June 2001 in an alleged exercise of powers conferred upon him by section 12 of the Films and Stage
Plays Act, Chapter
Page 262 of [2007] 1 EA 261 (HCK)

222 of the Laws of Kenya. The notice required broadcasting networks, cinema theatres, production
houses, advertising agents and all those concerned with films (including television commercials,
television dramas, comics, documentaries and features) to obtain a certificate of approval from the Film
Licensing Officer and the Kenya Film Censorship Board prior to being exhibited. The applicant, who
operated a broadcasting network challenged the Gazette Notice on the ground that the same violated its
right to expression as protected by section 79 of the Constitution of the Republic of Kenya.
Held – Procedure is a handmaiden to justice and procedure requires that proper provision of the law
upon which an application is grounded be cited. However, where a non-existent provision of the law is
cited but after a careful reading of the body of the application and prayers sought, the court is able to tell
with certainty the nature of the application, such application should not be struck out for incompetence.
A Constitutional Court should be liberal in the manner it goes round dispensing justice. It should look
at the substance rather than technicality. It should not be seen to slavishly follow technicalities as to
impede the cause of justice.
A constitutional application is much wider and may in a suitable case also include judicial review. By
virtue of the powers vested in it under section 84 of the Constitution, the High Court can give orders
available in judicial review in a constitutional reference.
Invoking constitutional jurisdiction in place of judicial review jurisdiction where there is a
constitutional issue for determination does not itself amount to invoking a wrong procedure.
The application was properly before court and the objection by the State on that score had to fail.
A party alleging a breach of a constitutionally guaranteed freedom has the evidential burden of
proving such breach.
Where an Act is passed into law and that Act is one that restricts the rights and freedoms of an
individual, in order to impugn such an Act, all that an individual is required to do is to show that one or
more of his rights have been restricted. Having done so, the burden shifts to the proponent of the Act to
show that the provisions of the Act restricting such rights and freedoms are “reasonable” restrictions.
(Republic v Mbushuu and another [1994] 2 LRC 335 and AG of Trinidad and Tobago v Morgan 45
[1985] LRC 9 (CONST) 770 adopted).
Section 12 of the Films and Stage Plays Act places a restriction to a person who intends to exhibit a
film at an exhibition. In such a situation, such a person must obtain a certificate of approval in respect
thereof.
Under the Films and Stage Plays Act, the word exhibition means the projection of a film or other
optical effect by means of a cinematograph or similar apparatus.
The Minister cannot lawfully under the powers granted by section 12 extend actions under the said
section to broadcasting networks, ie TVs and radios. Neither can the Minister lawfully under the said
section seek to regulate television commercials, dramas, comics, documentaries and features.
Page 263 of [2007] 1 EA 261 (HCK)

It is now settled law that a title of an Act is part of the Act and is admissible as an aid to its
constructions and interpretation.
The Minister in promulgating the Gazette Notice went beyond what the Act authorised him to do. He
acted in excess of jurisdiction and, therefore, ultra vires the Act. If the intention of the legislature was to
regulate broadcasters as well, nothing would have been easier than to specifically and expressly say so.
The fundamental rights enshrined in our Constitution are not absolute rights. They can be limited.
Such limitation must, however, be in accordance with the law.
By illegally extending his power and authority under the Films and Stage Plays Act to TV
communication etc, the Minister clearly infringed the principle of legality as set out in section 79(2) of
the Constitution.
To the extent that the Gazette Notice required the applicant to submit a live coverage film for
approval before airing, this was an unreasonable expectation or requirement.
To the extent that the Gazette Notice imposed on the applicant an obligation to obtain a certificate of
approval of a film from both the Licensing Officer and the Kenya Film Censorship Board, it was
unreasonable.
Lack of a criterion on how the Licensing Officer and the film censorship board will exercise power in
approving or rejecting the film renders it susceptible to abuse. In modern era, it is highly unacceptable
that a body should be entrusted with arbitrary powers in determining the fate of a right, constitutionally
conferred to a subject.
A right to be heard before an adverse decision is made against a subject is sacrosanct under our laws.
One should never be condemned unheard.
To the extent that the Gazette Notice as laid, denies the applicant the right of appeal to an impartial
tribunal, the only remedy being an appeal to the Minister whose decision is final, renders it an unfair way
of doing things.
In interpreting the Constitution and in particular provisions pertaining to fundamental rights, the
courts must interpret them broadly, purposively and in a liberal manner, bearing in mind the changing
times. The Constitution should not be interpreted as an abstract document but as a living document with
concepts ever evolving with the passage of time, and finally limitations on rights and freedoms which
have been conferred should be given a strict and narrow interpretation and that such limitations must
satisfy the principle of legality. In order to be necessary, limitations must respond to a clearly established
social need. It is not sufficient that the limitation is desirable or simply does not harm the functions of the
democratic social order. (Rev Timothy Njoya and others v Attorney-General; Reyes v The Queen [2002]
2AC 235; Matthew v The State [2005] 1 AC 433; Boyce and Joseph v The Queen [2005] 1AC 400;
Rangal Laingaran miscellaneous civil application number 305 of 2004; Minister for Home Affairs and
another v Fischer and another [1479] 3 All ER 21 and Ndyanabo v Attorney-General [2001] 2 EA 485
followed).
Application allowed.
Page 264 of [2007] 1 EA 261 (HCK)
Cases referred to in judgment
(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Cyprian Kubai v Stanley Kaiyongi Mwenda miscellaneous application number 612 of 2002 (UR)
Honourable Martha Karua v Radio Africa and others High Court civil case 288 of 2004 (UR)
Ndyanabo v Attorney-General [2001] 2 EA 485 – F
Rangal Laingaran miscellaneous civil application number 305 of 2004 – F
Republic v Commissioner of Police ex parte Nicholas Gitutu Karia miscellaneous application number
534 of 2003 (UR)
William Kipruto Arap Chelashaw v Republic miscellaneous application number 692 of 2003 (UR)

United Kingdom
AG of Trinidad and Tobago v Morgan 45 [1985] LRC 9 (CONST) 770 – A
Belize Broadcasting Authority v Courtenay and Haore [1988] LRC (CONST) 276
Boyce and Joseph v The Queen [2005] 1 AC 400 – F
Handyside v United Kingdom IE HRR 737
Matthew v The State [2005] 1 AC 43 – F
Minister for Home Affairs and another v Fischer and another [1479] 3 All ER 21 – F
Muller and others v Switzerland
NTN Pty Ltd and NBN Ltd v The State [1988] LRC (CONST) 333
Re Munhumeso and others [1994] 1 LRC 282
Republic v Mbushuu and another [1994] 2 LRC 335 – A
Rev Timothy Njoya and others v Attorney-General – F
Reyes v The Queen [2002] 2 AC 235 – F

South Africa
S v Makwanyane and another [1995] 6 BCLR 665 (CC)

Judgment
Nyamu and Makhandia JJA: By a Gazette Notice number 4014 dated 6 June 2001, the Minister for
Information, Transport and Communication in exercise of the powers conferred on him by section 12 of
the Films and Stage Plays Act Chapter 222 of the Laws of Kenya issued a legal notice in the following
terms:
“…In exercise of the powers conferred by section 12 of the Films and Stage Plays Act, the Minister for
information, Transport and Communication notifies broadcasting networks, cinema theatres, production
houses, Advertising agents and all those concerned that Films (including Television commercials, Television
dramas, comics, documentaries and features) for Public exhibition, screening or broadcast, whether foreign or
locally produced are required to obtain a Certificate of approval from the Film Licensing Officer and the
Kenya Film Censorship Board prior to being exhibited. Pursuant to section 12(3) of the Act, any person who
exhibits any film in contravention of this requirement commits an offence…”
Page 265 of [2007] 1 EA 261 (HCK)

Nation Media Group Limited hereinafter referred to as the applicant and who operates a broadcasting
network was alarmed and aggrieved by the far reaching effects of the said legal notice and opted to
challenge the same.
By an originating summons dated and filed in this Court on 22 July 2002, and expressed to be brought
under Chapter 75 of the Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the
Individual) Practice and Procedure Rules and all other enabling provisions of the Law, the applicant
sought the following orders:
(a) A declaration that the order by the Minister for Information, Transport and Communication, to act
in exercise of the powers conferred on him by section 12 of the Films and Stage Plays Act Chapter
222 of the Laws of Kenya, Published as Gazette Notice number 4014 dated 6 June 2001 infringes
upon the Fundamental Rights and Freedoms of the applicant which are protected under Chapter V
of the Constitution of Kenya.
(b) A declaration that the order by the Minister for Information, Transport and Communication
published as Gazette Notice number 4014 dated 6 June 2001 is null and void and of no legal effect.
(c) Any such further and other order as the court may deem just and equitable in the circumstances of
this case.
The grounds advanced in the support of the application can be paraphrased as follows:
(a) That the order by the Minister aforesaid imposed conditions upon the applicant in exercising its
press freedom guaranteed under the Constitution of Kenya, which conditions infringe upon and are
inconsistent with the applicant’s said Constitutional rights.
(b) That the requirements imposed by the order are not reasonably required in the interest of defence,
public safety, public order, public morality or public health and are not for the protection of the
rights and freedoms of other persons.
(c) That the order is vague and ambiguous and does not provide the standard or criteria for the grant or
refusal of approval by the Kenya Film Censorship Board and also the Licensing Officer and is
therefore unreasonable and oppressive.
(d) That the penal sanction imposed for failure to comply with the order violates express constitutional
provisions and deny the applicant the equal protection of the law as guaranteed by section 70 of
the Constitution.
(e) That the requirements imposed in the order in respect of all Films and Broadcasting material are
infeasible, impracticable and would lead to absurd results and constitute an unconstitutional
abridgment of press freedom, and finally,
(f ) That the requirements in the order would threaten the viability and feasibility of various television
programmes and deny the applicant as well as many members of the public their constitutional
guaranteed freedom to communicate and receive information without interference.
The originating summons was also supported by an affidavit sworn by one Wilfred Kiboro, Group
Managing Chief Executive of the applicant, who in pertinent paragraphs depones as follows:
Page 266 of [2007] 1 EA 261 (HCK)
(3) “…That on 6 June 2001, the Minister for Information, Transport and Communication (hereinafter
referred as ‘the Minister’) issued a Gazette Notice number 4014 notifying all broadcasting networks,
Cinema Theatres, Production houses, advertising agents and all those concerned that all Films
(including Television commercials, Television dramas, comics, documentaries and features) for Public
exhibition, screening or broadcasting whether foreign or locally produced are required to obtain a
Certificate of approval from the Film Licensing Officer and also the Kenya Film Censorship Board
prior to being exhibited. Annexed hereto and marked ‘WK – 1’ is a true copy of the said Gazette
Notice.
(4) That I am advised by the applicant’s Advocate on record, which advice I verily believe to be true, that
the aforesaid order by the Minister is unconstitutional and its implementation shall result in the
infringement of the applicant’s fundamental rights and freedoms, particularly its press freedom as
provided for by the Constitution of Kenya.
(5) That I am also advised by the applicant’s Advocate on record, which I verily believe to be true that by
making the aforesaid order the Minister was acting in excess of the powers conferred upon him by
section 12 of the Films and Stage Plays Act (Chapter 222 of the Laws of Kenya, as the provisions of
the said Act only apply to Cinematograph Films and Plays, while he purports to regulate, inter alia,
Television commercials, Television dramas, documentaries and comics.
(6) That I verily believe that one of the effects of the implementation of the Minister’s order, would be to
deny the applicant the right to air live broadcasts and material from satellite transmissions, hence
denying the applicant the right to provide this information to members of the Public. Further, I verily
believe that it would threaten the viability of various locally produced television programmes, thereby
denying the applicant and members their opinions in the forums provided by the said televisions
programmes…”

When the originating summons was served on the respondent, no affidavits were filed in response to
counter the averments by the applicant. Instead the respondent on 22 March 2004 filed a notice of
preliminary objection. Two issues were raised by the respondent in the preliminary objection to wit:
(1) That the applicants have not shown that the matters they complain of has or is likely to contravene
any right vested upon them personally.
(2) That the issues raised in the originating summons are matters within the domain of judicial review
and not constitutional interpretation.
The originating summons was then placed before the Honourable the Chief Justice for directions as to the manner
and mode in which the application shall be heard and also directions regarding other parties who may wish to join in
the suit. Upon hearing the parties, the then Chief Justice, the Honourable Mr Justice B Chunga directed that:
“…Everything considered, I am satisfied that this is a proper application to be heard before a bench of two Judges
whom, as I have indicated, I will appoint in due course…”

He left the issue of interested parties to be dealt with by the bench to hear the application. The
Honourable Chief Justice then proceeded to appoint Khamoni and Hayanga JJ to preside over the
application.
When the application came up for substantive hearing inter partes on 20 November 2002, it was
adjourned on the application by the respondent to 20 and 21 January 2003, respectively for hearing.
When the matter came up for hearing again on the aforesaid dates, it was stood over to 24 February 2003
for
Page 267 of [2007] 1 EA 261 (HCK)

mention with a view to recording an out of court settlement. Counsel for the applicant indicated then to
the court that he was talking with the respondent’s office and it was likely that the offending Gazette
Notice could be de-gazetted. When the matter came up again on 24 July 2003 no settlement had been
reached. In the meantime Justice Khamoni had been re-deployed to the High Court of Kenya at Nyeri and
there was need to appoint another Judge in his place. The matter was then placed again before the Chief
Justice to re-constitute the bench to hear the application.
On 18 March 2004, the Honourable Chief Justice appointed Aluoch J to preside over the matter.
When the application subsequently came before the learned Judge for hearing, Miss Kimani, Chief
Litigation counsel, for the respondent sought to argue the preliminary objection filed in court on 22
March 2004. Mr Githu Muigai, counsel for the applicant objected to the course adopted by the learned
Chief Litigation counsel. Following lengthy submissions on the issue, Justice Aluoch then ruled that the
points raised before her orally should be raised during or at the hearing of the preliminary objection. This
would enable the court to have all the facts and therefore reach a just and fair conclusion. The Judge
further held that the court would at the substantive hearing of the preliminary objection consider the issue
of whether the respondent can raise a preliminary objection after directions by the Chief Justice had been
given for the originating summons to be heard. The Judge then directed that the matter be referred to this
division for further orders.
Upon being seized of the matter, the presiding Judge of this division then referred the matter once
again to the Honourable the Chief Justice to empanel another bench to preside over the hearing of the
matter. It was then that the instant bench was appointed.
When the matter came before us for hearing on 28 February 2005, we directed the parties to file
skeleton written arguments together with any authorities they may wish to rely on. These directions were
complied with. We carefully read and considered the skeleton arguments advanced by each party in
support of their case together with the several authorities cited. We are greatly indebted to both counsel’s
for their industry and research that has gone along way in assisting us reach a decision in this rather
complex matter.
When the original summons opened before us for arguments, Mr Githu Muigai appeared for the
applicant, whereas Mr Mwaniki, learned State counsel appeared for the Attorney-General. In his oral
submissions in support of the application, Mr Githu Muigai submitted that the Minister’s action was
unconstitutional as it amounted to interference with the applicant’s freedom of expression as enshrined in
section 79 of the Constitution of Kenya as well as freedom to communicate and the right of public to
receive communication and or information. Counsel submitted further that there was only one burden on
the applicant; to demonstrate that the Gazette Notice had been published and that the applicant had been
affected by the said Gazette Notice. Once an infringement of the right to freedom of expression is alleged
by a citizen as in the instant case, the burden of proof shifts to the respondent to justify the law. Counsel
submitted further that the State had also to justify the reasonableness of the limitation to the right.
Counsel maintained that the applicant had demonstrated that the Gazette Notice had been published by
virtue of a copy of the same annexed to the application. Since the publication of the Gazette Notice,
Page 268 of [2007] 1 EA 261 (HCK)

the respondent had demanded the applicant’s compliance by two letters, whose copies were annexed to
the application. Accordingly it was counsel’s position that the applicant was thus affected by the notice.
Counsel also submitted that the limitations imposed on the freedom of expression by the said Gazette
Notice prohibits the broadcasting and or giving breaking news without having first obtained a certificate
of approval from the Licensing Officer and the Kenya Film Censorship Board. Counsel however
conceded that there could be instances where the Minister could exercise powers of regulation in certain
instances such as films with explicit sexual contents. Permission to air such material might be necessary
in the interest of public morality.
Counsel further submitted that the Minister cannot issue orders which make it impossible to run a
modern TV station. There is nothing like absolute right. However, for a constitutional right to be taken
away, it must be in accordance with the law. It was counsel’s submission that the Minister could not take
away a constitutional right by a mere Gazette Notice. In the applicant’s view therefore that order was null
and void and illegal.
Counsel also pointed out that the Gazette Notice was impracticable. To demonstrate its
impracticability, counsel made reference to the other media houses that beam directly into Kenya from
outside such as DSTV, M-NET, EATV, Sky TV, BBC etc. How would the Gazette Notice apply to such
media houses unless the intention of the Gazette Notice was to discriminate the local media which would
also be unconstitutional.
Counsel also submitted that the Minister was not a licensing authority for TVs in Kenya. This is the
role reserved for Communication Commission of Kenya (“CCK”). To the counsel, the Minister was
extending provisions meant for stages, theatres and cinemas to the broadcast and television media.
Counsel maintained that there was nothing in the Minister’s Gazette Notice that purports to protect
public interest or public morality. On the question of interpretation of constitutional provisions, learned
counsel referred us to the case of Minister of Home Affairs and another v Fisher and another [1979] 3
All ER 21. For the proposition that it is the statute that should comply with the Constitution for the
proposition that the Constitution should be interpreted in a purposive manner, counsel referred us to the
case of Re Munhumeso and others [1994] 1 LRC 282.
Counsel also raised the principle of proportionality in his submissions. He stated that the power
conferred to the Licensing Officer in the regulations were not proportionate to the vice sought to be
corrected that, that could not have been the intention of Parliament. On the principles of proportionality
counsel referred us to the case of Republic v Moushuu and another [1994] 2 LRC 335.
Finally, counsel submitted that the Films and Stage Plays Act was enacted in 1962, just before the
Constitution was written and enacted. It did not therefore anticipate the wide freedoms enshrined in the
Constitution. The Constitution of Kenya creates a multi-party democracy. It specifically makes reference
to the requirement of a democratic society. Counsel submitted that in the circumstances the claims-back
provision ought to be used reasonably in a democratic society. For this submission counsel referred the
court to the case of NTN Pty Ltd and NBN Ltd v The State [1988] LRC (CONST) 333. Counsel further
submitted that the complaint by the applicant was not frivolous. The Gazette Notice breached the
applicant’s freedom to communicate ideas and the
Page 269 of [2007] 1 EA 261 (HCK)

corresponding right to receive communication. As a result of the Gazette Notice the applicant is leaving
in constant fear as it does not know when the respondent will bring down its sword on it.
In submissions in opposition to the application and in response to the applicant’s submissions, Mr
Mwaniki learned State counsel only limited himself on issues of law. As already stated, the respondent
did not file a replying affidavit to counter the averments by the applicant in support of the application.
The first issue of law to be tackled by the learned State counsel was the question of jurisdiction. Counsel
pointed out that the applicant had grounded its application on Chapter 75 of the Constitution of Kenya,
amongst other provisions of the law. It was the contention of the learned State counsel that there was no
Chapter 75 in the Constitution of Kenya. That despite this issue being brought to the attention of the
applicant in good time, no attempts to amend the originating summons were made. Counsel further
pointed out that even if we were to assume that it was a typographical error to have cited Chapter 75
instead of section 75 of the Constitution, counsels stated that the section deals with deprivation of
property. The instant application in its present form was not about deprivation of property but was about
enforcement of fundamental rights. That being the case the application was vexatious and oppressive to
the respondent. Counsel submitted that a party coming to court must adhere to the rules of procedure
failing which such proceedings are liable to be struck out. For this proposition counsel relied on the case
of William Kipruto Arap Chelashaw v Republic miscellaneous application number 692 of 2003 (UR).
Counsel also pointed that the applicant did not also cite section 84 of the Constitution in its application.
It only referred to rules 9 and 11 of the Constitution of Kenya (Protection and Fundamental Rights and
Freedoms of the Individual) Practice and Procedure Rules without citing the parent section. This
omission too was fatal according to the learned State counsel. In support of this proposition, counsel
referred us to the ruling in the case of Cyprian Kubai v Stanley Kaiyongi Mwenda miscellaneous
application number 612 of 2002 (UR).
The second point of law taken up by the learned State counsel is that the applicant was not
challenging the powers conferred on the Minister by the parent Act but was challenging the use of those
powers by the Minister. Counsel submitted that if the applicant felt that the Gazette Notice infringed on
its freedom of expression, it should have challenged their constitutionality rather than bring the instant
application. The challenged Act is such law as contemplated under section 79(2) of the Constitution. In
the application, the applicant seeks a declaration that the legal notice by the Minister be declared null and
void. To counsel, this is not a remedy available to the applicant. Rather the applicant’s remedies lies in
the purview of judicial review. Counsel relied on the case of Rev Dr Timothy Njoya and others v The
Attorney-General and another as well as the Republic v Commissioner of Police ex parte Nicholas Gitutu
Karia miscellaneous application number 534 of 2003 (UR). Accordingly, the application was
incompetent and ought to fail.
In the alternative, the learned State counsel argued that assuming that the application was found to be
proper, can it stand the test of law? Counsel submitted that section 79 of the Constitution confers a right
which is not absolute. The section has a proviso and/or limitation that was imposed for a good cause. The
sub-section limits the freedom conferred by the section and allows the Minister to make laws that
derogate from the freedom conferred by the section. The Gazette Notice was made pursuant to the law
and was for purposes of
Page 270 of [2007] 1 EA 261 (HCK)

the protection of public morality. The learned State counsel stated that the Minister’s actions could be
challenged if they were deemed to be unreasonable and out of proportion. Counsel pointed out that unlike
the article 36 of the South African Constitution, the Kenyan Constitution does not give a benchmark of
what is deemed to be proportional, reasonable and justifiable in an open democratic society. According
to counsel, the Minister’s actions were not unreasonable and did not impose a heavier burden to the
applicant. All that applicant was being asked is to submit the films for inspection, for purposes of public
morality, contrary to the submissions by counsel for the applicant, the regulation did not cover news or
breaking news according to the respondent. The regulation only covered films. The Gazette Notice was
not unreasonable and disproportional even under the Wednesbury principles. To counsel it would be
unreasonable not to control the exhibition of all sorts of films. Are the powers conferred to the Minister
ultra vires? The learned State counsel submitted that the submissions by the applicant that the Act did
not cover media houses was unfounded. Learned State counsel faulted the applicant for relying on the
preamble to the Act to buttress its argument. To counsel the preamble can only be resorted to for
interpretation if the Act itself is not clear. See Principles of Statutory Interpretation, Prasanna, GS (3ed),
India, Bharat Law House, 1984.
This was not the case here. Long little could not overrule the clear meaning of the enactment. The
legal notice was therefore intra vires. Finally, counsel submitted that the legal notice was not vague or
ambiguous. It was neither unreasonable nor oppressive. It is practicable and reasonable. With that
counsel urged us to dismiss the application for lacking in merit.
In a brief reply, Mr Majanja, learned counsel who had stepped in place of Mr Githu Muigai,
submitted that procedure is a handmaid of justice. That procedure should not be followed slavishly in a
manner that impedes the cause of justice. Counsel submitted that the purposes of procedure is to let the
parties know the case they are to meet so as to avoid prejudice. Counsel further submitted that the case
the respondent was to meet is clear from the originating summons, the affidavit in support thereof and
even by the ruling by the Chief Justice on 27 September 2002. There are occasions when remedies may
overlap in which case aggrieved party could choose as in the instant to come to court either by way of
judicial review or constitutional reference. However, what a party should not do is to combine the two
jurisdictions in one application. For this submission counsel referred us to the case of ex parte Nicholas
Gitutu Karia (supra). Learned counsel further submitted that the limitation sought to be relied on by the
respondent are a matter of fact. However no replying affidavit was filed by the respondent. The
regulations in their current state captures every conceivable matter and the applicant is left at the mercy
of a bureaucrat to decide what should be approved. As the Minister breached the applicant’s fundamental
rights, the applicant was entitled to come to this Court in the manner it did. It was not a matter for
judicial review, the learned counsel of the applicant concluded his submissions.
From our appreciation and consideration of the pleadings herein and the submissions made in support
and in opposition thereof we discern twin issues for our determination to be as allows:
(a) Jurisdiction.
(b) Legality and constitutionality of the Gazette Notice number 4014 of 6 June 2001 and finally.
Page 271 of [2007] 1 EA 261 (HCK)

Jurisdiction
The issue of jurisdiction is two-fold. The respondent faults the application, one, on the basis that the
originating summons was commenced under a non-existent law as Chapter 75 of the Constitution citation
in the application does not exist. Further, the respondent faults the application for being vague as it cites
the whole of Chapter 75 of the Constitution in respect of the reliefs. The main prong of attack on the
application by the respondent is that the constitutional reference raises matters of statutory as opposed to
constitutional interpretation and adjudication. As the application questions the mode and manner of
exercise of power by the Minister the applicant should have contested the issue by way of judicial review
proceedings and not a constitutional reference.
From the title of the application, the applicant seems to have brought the application:
“…Under Chapter 75 of the Constitution of Kenya, rules 9 and 11 of the Constitution of Kenya (Protection of
Fundamental rights and freedoms of the Individual Practice and Procedure rules and other enabling provisions
of the law…”

It is therefore true as argued by the learned State counsel that there is no such section 75 in our
Constitution. Further, the applicant ought to have cited section 84 of the Constitution pursuant to which
rules 9 and 11 were made. Are these omissions however, fatal to the application? We do not think so.
First and foremost, Mr Githu, did indicate at the very commencement of the hearing of the application
that the reference to section 75 was inadvertent and a typographical error. The applicant actually meant
Chapter 5 of the Constitution of Kenya. Having gone through the body of the application, we agree with
the explanation given by learned counsel for the applicant. Yes, procedure is a handmaid to justice.
Procedure requires that proper provision of the law upon which the application is grounded, be cited.
However, we do not think that where a non-existent provision of the law is cited but after a careful
reading of the body of the application and prayers sought and the court is able to tell with certainty the
nature of the application that such an application should be struck out for incompetence. This would be a
drastic step to take, not at least in a Constitutional Court. A Constitutional Court should be liberal in the
manner it goes round dispensing justice. It should look at the substance rather than technicality. It should
not be seen to slavishly follow technicalities as to impede the cause of justice. The very Constitution that
imposes a duty on this Court to administer justice without undue regard to technicality. In our view, as
long as a party is aware of the case he is to meet and no prejudice is to be caused to him by failure to cite
the appropriate section of the law underpinning the application, the application ought to proceed to
substantive hearing.
In the instant case we are satisfied that though the applicant cited a non-existent section of the
Constitution and also failed to make reference to section 84 of the Constitution, that failure did not
occasion any prejudice or injustice to the respondent. The respondent from the prayers sought in the
application, knew the case it was to confront. The learned State counsel also raised the issue of
vagueness of the application. That the application was vague as it cites the whole of Chapter 5 of the
Constitution. That may be so, however the prayers sought are specific and they refer to freedom of
expression guaranteed under the Constitution. If there is any doubt by the respondent as to the case it was
to meet, that doubt was disabused by the ruling by the Honourable
Page 272 of [2007] 1 EA 261 (HCK)

Chief Justice when the matter was placed before him for directions. In the course of his ruling the
Chief Justice stated:
“…The essence of the matters raised by the applicants is that the action of the Minister for Information,
Transport and Communication as expressed in Gazette Notice number 4014 of 6 June 2002 are a
transgression on the applicants’ constitutional rights. Accordingly, they are bringing the originating summons
under section 84(1) of the Constitution as read with the Constitution of Kenya (Protection of Fundamental
rights and Freedoms of the individual) Practice and Procedure Rules. Put briefly, the applicants are seeking
the intervention of the Court for the protection of their Constitutional rights against alleged violations by the
respondent… A person alleging violation or likelihood of violation of his or her constitutional rights under
Chapter V of the Constitution of Kenya must set out his or her complaint in the clearest possible manner. To
do so, the following areas ought to emerge with sufficient clarity in the application papers filed in court.

(a) The nature of the alleged violation or likely violation of the constitutional rights.
(b) The person, or persons or authority or institution alleged to be responsible for the violation or
likelihood of violation.
(c) The manner of the violation or likely violation.
(d) The section of the Constitution which creates and gives the constitutional right that is under
violation or under threat of violation.”
The learned Chief Justice then went on to observe that:
“… I have examined the originating summons and the supporting Affidavit and I am satisfied that a clear
case, generally speaking, in terms of the matters I have set out earlier in this ruling has been made out to
justify appointment of a bench to hear the application…”

In light of this ruling can the respondent confidently say that they did not know the case they were
meeting despite the applicant citing a non-existent provision of the law? As we have already observed,
this cannot be the case. In the body of the application, the applicant has clearly set out the nature of the
violation, the institution alleged to be responsible for the violation and the manner of violation. The
application is therefore very clear. We are satisfied as indeed was the Chief Justice that the applicant has
set out a clear case of violation or potential violation of its constitutional right to freedom of expression.
Learned State counsel invited us to rely on the case of Cyprian Kubai (supra) to strike out the originating
summons for want of citing the correct provision of the law. First and foremost we wish to point out that
the aforesaid authority is not binding on us and it is only of persuasive value. As we have already stated,
once a party knows what case he/she has to meet from the pleadings, the inappropriate citation of the
section upon which the application is grounded notwithstanding, the application ought to proceed to
hearing. We find the reasoning in the aforesaid case rather too restrictive and does not accord well with
our interpretation of the Constitution, as a Constitutional Court that substance should not be sacrificed at
the altar of technicality.
The other issue raised by the respondent and which goes to the jurisdiction is that the constitutional
reference raises matters of statutory as opposed to constitutional interpretation and adjudication. As the
application questions the mode and manner of exercise of power by the Minister, this falls within the
realm of judicial review under the special jurisdiction of the court pursuant to the Law
Page 273 of [2007] 1 EA 261 (HCK)

Reform Act and Order LIII of the Civil Procedure Code and cannot be entertained in a Constitutional
Court. In other words, it is the position of the respondent that in so far as the applicant is not challenging
the powers conferred on the Minister by the Films and Stage Act, Chapter 222 Laws of Kenya, but he is
challenging the use of those powers by the Minister, the applicant’s remedy lies in judicial review. It is
not a matter for constitutional reference and/or interpretation.
Nothing can be further from the truth. There is no doubt at all that the application is premised on
Chapter V of the Constitution. The applicant is seeking the intervention, enforcement and protection of
its constitutional rights against the alleged violations by the respondent. There are general averments in
the originating summons and in the affidavit in support thereof about breach or likely breach of the
applicant’s constitutional rights. We think that the applicant was perfectly entitled to come to this Court
in the manner he did in the circumstances. Yes, he could have opted to come to court by way of judicial
review for a limited remedy excluding the alleged constitutional contravention but he chose to come
under the Constitution. A constitutional application is much wider and may in suitable cases such as the
instant one also include judicial review. To give one illustration this Court has power under section 65(2)
of the Constitution to exercise its judicial review power over subordinate Courts in Civil and Criminal
matters and by analogy the restrictive approach suggested ought not to apply. However, failure to so does
render the instant application a nullity. After all the proviso to section 84 of the Constitution gives this
Court very wide powers in terms of the prayers it can grant on a proper application brought pursuant to
sections 70–83 (inclusive) of the Constitution. The proviso is in these terms:-It provides:
“…And it may make such orders, issue such writs and give such directions as it may consider appropriate for
the purposes of enforcing or securing the enforcements of any of the provisions of sections 70 to 83
(inclusive)…”

Our interpretation of the above proviso is that this Court has such wide latitude in the kind of remedies it
can grant on a constitutional reference. We can give orders available in judicial review in a constitutional
reference.
Section 84(1) of the Constitution also provides that a party with any other remedy or action lawfully
available can still move to Court by way of constitutional reference.
In support of the proposition that the applicant should have invoked judicial review proceedings,
counsel for the respondent referred us to the case of Rev Dr Timothy M Njoya v Attorney-General and
another (supra) where the court stated:
“…As regards the objection that the summons raises matters of statutory as opposed to constitutional
interpretation and adjudication, we would agree that any relief sought which does not involve the
interpretation of the Constitution or the enforcement of the fundamental rights is misplaced in a Constitutional
Court. We also agree that where what is complained of is the composition of a statutory body or the
procedural provisions thereof or the mode and manner of the exercise of its power, without more – that matter
belongs to the realm of Judicial review under Order LIII of the Civil Procedure Rules and it cannot be
entertained in a Constitutional Court…”

Our response to this is that the matter at hand relates to the enforcement of the fundamental rights of the
applicant. Further we do not think that the court’s
Page 274 of [2007] 1 EA 261 (HCK)

attention was drawn to the provisions thereto of section 84(1) and (2) of the Constitution and in
particular the proviso which permits this Court even to grant judicial review remedies in a constitutional
reference, including section 65(2) of the Constitution. A party has a right to choose the jurisdiction to
invoke when coming to court, depending on the results he/she desires as correctly submitted by Mr
Majanja. What such party should not do however is to invoke two different jurisdictions in one
application and or suit. In essence that was the holding by this Court in the case of Republic v The
Commissioner of Police ex parte Nicholas Gituhu Karia (supra). In that case we delivered ourselves
thus:
“….On this we find that it is improper for the applicant to have combined Judicial Review relief application
with a constitutional application.
(i) Because both judicial review jurisdiction and Constitutional Jurisdiction are special and each
jurisdiction has a set of special rules. The first jurisdiction is donated by an Act of Parliament namely
Law Reform Act, Chapter 26 and second Constitutional Jurisdiction springs directly from the
Constitution itself with rules made pursuant to section 84(6) of the Constitution.
(ii) The Constitution is the Supreme Law and all other laws must confirm to the Constitution. The rules of
interpretation are different and the methods of amendment or repeal of ordinary laws are different from
those of the Acts of parliament. See Timothy Njoya v Attorney-General and others miscellaneous case
82 of 2004 (OS).
(iii) At the moment although desirable it is not statutorily possible in Judicial review proceedings to grant,
declarations, injunctions and damages whereas under section 84 of the Constitution the Court has a
wide discretion to grant such orders as may be appropriate.
A combination as in this case unnecessarily muddles up and confuses both parties and the Court and we hold
that such a combination is fatal to the application as well….”

In the instant application, the applicant is seeking to enforce his fundamental rights under the
Constitution. There is no combination of two or more jurisdiction, in the application. Invoking
constitutional jurisdiction in place of judicial review jurisdiction where there is a constitutional issue for
determination does not by itself amount to invoking a wrong procedure as argued by Mr Mwaniki and
consequently that the application should fail. Flowing directly from all the foregoing, it is our conclusion
that the applicant is properly before this Court and the objection by the State on that score must
automatically fail.
The applicant’s complaint in the main is that the respondent has unlawfully invaded his constitutional
rights to freedom of expression.
The applicant takes the view that the Gazette Notice is unconstitutional as it violates its constitutional
right to protection of freedom of expression. Section 79 of the Constitution provides that:
“…Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression
that is to say, Freedom to hold opinions without interference, freedom to receive ideas and information
without interference, freedom to communicate ideas and information without interference (whether the
communication be to the public generally or to any person or class of person) and freedom from interference
with his correspondence.
(2) Nothing contained in or done under the authority of any Law shall be held to be inconsistent with or in
that the Law in question makes provisions:
Page 275 of [2007] 1 EA 261 (HCK)
(a) That is reasonably required in the interest of defence, public safety, public order, public
morality or public health;
(b) That is reasonably required for the purpose of protecting the reputation, rights and freedoms of
other person or the private lives of persons concerned in legal proceedings preventing
disclosure of information received in confidence, maintaining the authority and independence
of the Courts or regulating the technical administration or the technical operation of telephone,
telegraphy, posts, wireless broadcasting or television; or
(c) That imposes restrictions upon public offices or upon persons in the services of the local
authority, and except so far as that provision or, as the case may be, the thing done under the
authority thereof is shown not to be reasonably required in a democratic society…”

There is no doubt that the Gazette as promulgated, is an invasion to the constitutional protection of
freedom of expression as aforesaid. It is now an accepted principle that a party alleging a breach of a
constitutionally guaranteed freedom has the evidential burden of proving such breach. In the Tanzanian
case of Republic v Mbushuu and another [1994] 2 LRC 335, Justice Mwalusanya cited with approval
what Justice Braithwaite had stated in the famous case of AG of Trinidad and Tabogo v Morgan 45
[1985] LRC 9 (CONST) 770 on the burden of proof where infringement of a right is alleged. He
delivered himself thus:
“…Where an Act is passed into law… and that Act is one that restricts the rights and freedoms of an
individual, in order to impugn such an Act, all that an individual is required to do is to show that one or more
of his rights have been restricted. Having done so the burden shifts to the proponent of the Act to show that
the provisions of the Act restricting such rights and freedoms are ‘reasonable’ restrictions. If the proponents
of the Act fail to discharge this burden then the Court of competent jurisdiction may pronounce against the
validity of the impugned Act…”

We accept this statement as a reasonable proposition of law.

In the instant case, the Minister in issuing the Gazette Notice was purportedly acting pursuant to the
powers conferred to him under section 12 of the Films and Stage Plays Act. That section provides, inter
alia:
“12 (1) No person shall exhibit any film at an exhibition to which the public are admitted unless the
board has issued a certificate of approval in respect thereof approving it for exhibition.
(2) Where the Minister is of the opinion that any Film, or any class or Film, should not be exhibited
at all (neither publicly nor privately) without a Certificate of approval having been issued in
respect thereof, he may, by notice served personally or by registered post on any person who
appears to him to likely to exhibit the film, or a film of that class, or by notice in the Kenya
Gazette, require that Film, or class of Film, shall not be exhibited at all, neither publicly nor
privately, unless the board has issued a Certificate of Approval in respect thereof, and thereafter
the person who has been given notice shall not, or where notice has been given in the Gazette,
no person shall, exhibit the film, or any film of that class, at any exhibition whatever unless the
board has issued a Certificate of approval in respect thereof, not otherwise than in accordance
with the terms and conditions.
(3) Any person who exhibits any film in contravention of the sub-section (1) or sub-section (2)
shall be guilty of an offence...”

It is the Gazette Notice that the Minister issued pursuant to this provision that the applicant alleges
infringements on its rights. Indeed pursuant to the Gazette
Page 276 of [2007] 1 EA 261 (HCK)

Notice, the Licensing Officer has twice demanded of the applicant, compliance. In two letters of demand,
the Licensing Officer has demanded of the applicant to:
“….Submit to him all the films and TV commercials scheduled for or being aired or copies of their
Certificates of approval, failure to comply would lead to further action being taken without further reference
to you…”

There are penal sanctions for non-compliance. Accordingly, the complaint by the applicant is not
frivolous but based on real and not imagined fear. The possibility that the respondent would come down
hard on the applicant are not remote. Our reading and interpretation of section 12 of the Act however,
leaves us in no doubt at all that it places a restriction to a person who intends to exhibit a film at an
exhibition. In such situation that person must obtain a certificate of approval in respect thereof.
Accordingly, what the Act allows the Minister to regulate is the exhibition of the Films and Stage. What
does exhibition mean? The word is defined under section 2 of the Act as “Exhibition”; means the
projection of a film or other optical effect by means of a cinematograph or similar apparatus.
As correctly submitted by Mr Githu, the guiding word here is “projection”, which again means
conveying of the cinematograph film through projection. In our view therefore, the Ministers action
under this provision of the law was meant to regulate the showing of films in theatres, cinema halls etc,
in public or other semi-public places. He cannot purport to extend the legislation to broadcasting
networks, ie TVs and radios. Neither can he lawfully seek to regulate television commercials, dramas,
comics, documentaries and features. We are fortified in this holding by the preamble to the Act. The
preamble to the Act describes its purpose as:
“An Act of Parliament to provide for controlling the making and exhibition of cinematograph films, for
licencing of stage plays, theatres and cinemas, and for purposes incidental thereto and connected herewith.”

It is now settled law that a title of an Act is part of the Act and is admissible as an aid to its constructions
and interpretation. See Principles of Statutory Interpretation, Prasana GS (3ed) India Bharat Law House,
1984.
In our view and for the purposes of this application, the Act is meant to control the making and
exhibition of films. The places where the exhibition is contemplated are cinema halls, stages and theatres.
These places as envisaged are closed areas or rooms. These are the places that the Act intended to
regulate by way of licencing. The Act does not envisage and or make reference to the licencing of media
houses or the regulation of their broadcasts. It is our considered opinion in view of what we have stated
that the Minister in promulgating the Gazette Notice complained of, went beyond what the Act
authorised him to do. He acted in excess of jurisdiction and therefore ultra vires the Act. The applicant
being a broadcasting network and not exhibitionist, could not be compelled to come within the regime of
the Act. If the intention of the legislature was to regulate broadcasters as well, nothing would have been
easier that specifically and expressly say so. In any case we are aware that the Act was enacted in 1963,
when the present day television technology was a far cry. It is instructive to note the opening words in
section 12(1). They are to this effect:
“…No person shall exhibit any film at an exhibition to which the Public are admitted…”
Page 277 of [2007] 1 EA 261 (HCK)

These words re-inforce our finding that the Act was meant to control the exhibition of films in cinema
halls, theatres, stages and any other enclosed area and/or rooms. It could never have been meant to apply
to media houses such as the applicant, who, in any event are now subject to regulation by the Kenya
Communications Act.
Mr Mwaniki, argued that the Act conferred on the Minister’s power to issue such regulations and in
promulgating the impugned regulations, he was acting in accordance with law and he cannot therefore be
faulted. That may be so. However, we think that the Minister exceeded the powers conferred on him
pursuant to section 12 of the Act. Consequently, the Gazette Notice is void for illegality and for being
ultra vires the present Act.
We must conclude this aspect of the matter by quoting the case of Belize Broadcasting Authority v
Courtenay and Haore [1988] LRC (CONST) 276, in which it was stated that:
“… Today, television is the most powerful medium for communicating, ideas and disseminating information.
The enjoyment of freedom of expression therefore includes freedom to use such a medium….”

We think that the Gazette Notice as promulgated unreasonably and arbitrarily abrogates the applicant’s
fundamental right to freedom of expression.
Legality and Constitutionality of the Gazette Notice
Of course the fundamental rights enshrined in our Constitution are not absolute rights. They can be
limited. However that limitation must be in accordance with the law. Section 79(2)(a) of the Constitution
provides the manner in which freedom of expression can be curtailed. It provides:
“…nothing contained in or done under the authority of any law shall be held to be inconsistent with or in
contravention of this section to the extent that the Law in question makes provision:
(a) That is in the interest of defence, public safety, public order, public morality or public
health…”[Emphasis mine.]

We have no doubt at all that the Minister had the power and authority to promulgate the Gazette Notice
but only as regards films. Consequently, by illegally extending the same to TV communication etc, he
clearly infringed the principle of legality as set out in section 79(2) of the Constitution ie any curtailing
of freedom of expression must be by law. There is no such valid law here. For any curtailment to be valid
and effective it must be in accordance with the law. This is not the case here. The Gazette Notice does
not constitute the law covered under section 79(2). Moreover can it be said that the said notice was
reasonably required in the interest of defence, public safety, public order, public morality or public
health? We do not think so. First and foremost the respondent did not file a replying affidavit to show the
basis upon which the Minister was compelled to issue the impugned Gazette Notice. However, in his oral
submissions, in opposition to the application, Mr Mwaniki seemed to imply that the Gazette Notice was
put in place for purposes of public morality. Public morality is a vast subject which cannot be proved by
evidence from the Bar. In our view the respondent ought to have filed replying affidavit to put forward
his case for proclaiming the Gazette Notice so that the applicant would be placed in a better position to
respond. We are unable to accept the word of counsel from the Bar that in promulgating the Gazette
Notice the Minister was acting in the interest of public morality.
Page 278 of [2007] 1 EA 261 (HCK)

Even if we were to accept that the Gazette Notice was found reasonably required in the interest of
public morality, can those regulations pass the test of reasonableness? We do not think so! The law
requires that all films for public exhibition, screening or broadcast, whether foreign or locally produced
should be approved by a Film Censorship Board prior to being exhibited. The word “Film” as already
stated is defined under section 2 of the Act to mean:
“... A cinematograph film, and includes any commentary (whichever spoken and whether the person speaking
appears in the film or not), and any music or other sound effect, associated with the film, and any part of the
Film ...”

From this definition it is clear that the Gazette Notice would even cover live broadcasts. How then is the
applicant expected to submit a live coverage Film for approval before airing? This is an unreasonable
expectation and/or requirement. Secondly, there are those media houses that beam directly into this
country for instance DSTV, M-NET, CNN, BBC, TV China, Sky TV etc. How would the Gazette Notice
apply to them? If the legal notice was found to be inapplicable to those media houses, wouldn’t that not
be a case of discrimination against local media houses which is also forbidden and outlawed under our
Constitution?
The Gazette Notice also imposes on the applicant an obligation to obtain a certificate of approval of
the film from two bodies – the Licencing Officer and the Kenya Film Censorship Board. Why was it
deemed necessary that two bodies doing the same thing be involved in the matter? Could one body have
sufficed? Why should the applicant be compelled to hop from one body to another to obtain the same
certificate of approval which could reasonably have been given by the body? Moving from one body to
another for the same licence is a waste of time and unnecessary expenses will be involved. It is also
possible that the applicant could be unconvinced. What would happen in the event that the Licencing
Officer grants the certificate of approval but the Film Licensing Board turns it down? This is further
proof of the unreasonableness of the legal notice.
There is no criteria as to how the Licensing Officer and the film censorship board will exercise power
in approving or rejecting the film. The subjective nature in which the board’s powers have been couched
renders it susceptible to abuse. For instance section 16(4) of the Act provides that:
“…The Board shall not approve any film or poster which in its opinion tends to prejudice…”

There ought to be objective standards to be applied in the determination of an application for a certificate
of approval from the Licencing Officer and the Film Censorship Board. In the absence of such criteria,
the two bodies are likely to act arbitrarily and they might abuse the power. In modern era, it is highly
unacceptable that a body should be entrusted with arbitrary powers in determining the fate of a right,
constitutionally conferred to a subject.
It is something that must be frowned upon. Indeed even in determining whether or not to approve the
film, the applicant has no right to be heard. This is an outrage and an affront to democracy. A right to be
heard before an adverse decision is made against a subject is sacrosanct under our laws. One should
never be condemned unheard. The applicant’s case is even worse because the decision to refuse to
approve the film may have far reaching financial and economic implications. Finally, we would observe
that the Gazette Notice as
Page 279 of [2007] 1 EA 261 (HCK)

laid denies the applicant right of appeal to an impartial tribunal. The only remedy accorded to the
applicant by way of appeal is to appeal to the Minister and whose decision is final. This is not a fair way
of doing things. The applicant cannot be expected to get a fair hearing from the Minister alone, the
appeal being literally handled by the executive arm of the Government. It is the Minister who
promulgated the legal notice. If pursuant to the legal notice, the applicant is denied certificate of approval
for the film and he is compelled to appeal to the same Minister, can it, in all fairness be said that he will
be accorded fair treatment by the Minister? We have our own doubts. Indeed it is very possible that the
Minister will be like a referee and or Judge in his own cause.
The Courts have been quick to frown upon legislation that have the effect of limiting the enjoyment of
fundamental rights. More often than not, such legislation have been declared unconstitutional. In the case
of Re Munhumeso and others [1994] ILRC 282, the court delivered itself thus:
“…Derogations from rights and freedoms which have been conferred should be given a strict and narrow,
rather than a wide construction. Rights and Freedoms are not to be diluted or diminished unless necessity or
intractability of the language dictates otherwise…”

Dealing with a similar situation as in the instant case where the discretionary power of the regulating
authority was arbitrary and uncontrolled, the court in Re Munhumeso and others (supra) stated:
“…There is no definition of the criteria to be used by the regulating authority in the exercise of the discretion.
It may be gravely misplaced and made the instrument for the arbitrary suppression of the free expression of
views. Second, if the potential disorder could be prevented by the imposition of suitable condition, then it is
only reasonable that such less stringent course of action be adopted than an outright ban. Third, although the
rights to freedom of assembly are primary and the limitations thereon secondary, (the impugned legislation)
reverse, the order. Its effect is to deny the rights unless the condition is satisfied. Fourth, the holding of a
Public procession without a permit is criminalised irrespective of the likelihood of occurrence of any threat to
public safety or public order…”

This case is on all fours with the circumstances obtaining in the instant case. In this modern day and era,
where transparency and accountability is the norm rather than the exception, it is unreasonable to grant
discretionary powers to a body without setting out the criteria as to how such power should be exercised.
Power exercised in an opaque manner opens avenues for corruption, manipulation, misuse and even
extortion. These vices are no longer tolerable in modern times and yet the regulations impugned have the
potential of creating such an environment. We are certain and as correctly submitted by the learned
counsel for the applicant that the ends intended to be achieved by the regulations could be achieved by
the imposition of suitable guidelines on what is and what is not allowed to be shown.
Counsel for the applicant also submitted that all that a law sought to derogate from fundamental
freedoms had to satisfy the principle of proportionality. According to counsel, because the board and the
Licencing Officer act in absolute discretion, there is no right of appeal against the decision of the
Minister, the applicant has no right to make representations before the decision is made either way, the
derogation would not, in a purposive construction of the freedom of expression, satisfy the principles of
proportionality. The Gazette
Page 280 of [2007] 1 EA 261 (HCK)

Notice outweighs the mischief sought to be contained. The respondent’s answer is that the Minister’s
action was not unreasonable or disproportional. That our Constitution did not give a benchmark of what
is deemed as proportional and reasonable unlike the South African Constitution. That the Gazette Notice
did not impose a heavier burden to the applicant.
In determining the issues raised in the above submissions, we must fall back on the principles of
interpretation of the Constitution particularly on the provision touching on fundamental rights. In the
case of Rev Timothy Njoya and others v Attorney-General (supra) Justice Ringera stated that the
Constitution must be given a broad and generous interpretation so as to give full effect to the
fundamental rights and values it enshrines. This proposition has been accepted and followed by the Privy
Council in the case of Reyes v The Queen [2002] 2 AC 235 and also in the case of Mathew v The State
[2005] 1 AC 433. In the later case Lord Bingham referred to the approach adopted in the Timothy
Njoya’s case as being the correct “approach” which is “well established by authority of high standing.”
In the case of Boyce and Joseph v The Queen [2005] 1 AC 400, the Privy Council stated thus
regarding the role of Judges in the interpretation of the Constitution:
“…Parts of the Constitution, and in particular the fundamental rights and provisions of Chapter III
(Constitution of Barbados) are expressed in general and abstract terms which invite the participation of the
Judiciary in giving them sufficient flesh to answer concrete questions. The framers of the Constitution would
have been aware that they were invoking concepts of liberty such as free speech, fair trial and freedom from
cruel punishments, which went back to the age of enlightenment and beyond. And they would have been
aware that sometimes the practical expression of these concepts – what limits on free speech are acceptable…
had been different in the past and might again be different in the future. But whether they entertained these
thoughts or not, in terms in which these provisions of the Constitution are expressed necessarily co-opts future
generation of Judges to the enterprise of giving life to the abstract statements of fundamental rights. The
judges are the mediators between the high generalities of the Constitutional text and the messy detail of their
application to concrete problems. And Judges, in giving body and substance to fundamental rights, will
naturally be guided by what are thought to be the requirements of a just society in their own time. In so doing,
they are not performing a legislative function. They are not doing work of repair by bringing an obsolete text
up to date. On the contrary they are applying the language of these provisions of the Constitution according to
their true meaning. The text is a ‘living instrument’ when the terms in which it is expressed, in their
Constitutional context, invite and require periodic re-examination of its application to contemporary life…”

In the recent decision of this Court by Nyamu and Emukule JJ in the case of Rangal Laingaran
miscellaneous civil application number 305 of 2004, the court adopted the said interpretation.
We would also refer to the speech of Lord Wilberforce, in the case of Minister of Home Affairs and
another v Fisher and another [1479] 3 All ER 21 in which he delivered himself thus:
“…A Constitution is a legal instrument giving rise, amongst other things, to individual rights capable of
enforcement in a Court of law. Respect must be had to the language used and the traditions and usages which
have given meaning to that language… and to be guided by the principle of giving full recognition and effect
to those fundamental rights and freedoms…”
Page 281 of [2007] 1 EA 261 (HCK)

Finally, in the case of Ndyanabo v Attorney-General [2001] 2 EA 485, it was held that:
“…In interpreting the Constitution the Court would be guided by the general principles that:
(i) The Constitution was a living instrument with a soul and consciousness of its own.
(ii) Fundamental rights provisions had to be interpreted in a broad and liberal manner.
(iii) There was a rebuttal presumption that legislation was Constitutional, and
(iv) the onus of rebutting the presumption rested on those who challenged that legislation’s status save that
where those who supported a restriction on a fundamental right relied on a claw back or exclusion
clause, the onus was on them to justify the restriction…”

What emerges from this line of authorities is that in interpreting the Constitution and in particular
provisions pertaining to fundamental rights, the courts must interpret them broadly, purposively and in
liberal manner, bearing in mind the changing times. The Constitution should not be interpreted as an
abstract document but as a living document with concepts ever evolving with the passage of time, and
finally that limitations on rights and freedoms which have been conferred should be given a strict and
narrow interpretation and that such limitation must satisfy the principle of legality.
Approaching the matters in hand in the manner aforesaid, we do consider the Gazette Notice to be
arbitrary and does not satisfy the principle of proportionality. The implications of the Gazette Notice far
outweigh the mischief sought to be contained. As already stated and contrary to the submissions by the
learned State counsel, the impugned Gazette Notice though it could have been promulgated in public
interest, is arbitrary to the extent that the board and the Licensing Officer in deciding to issue a certificate
of approval act in absolute discretion, subject to no checks whatsoever. And though there is a provision
of appeal against refusal, the appeal is to the Minister who promulgated the Gazette Notice. In this era
and time there can be no logical basis nor justification for granting an entity in matters pertaining to
freedom of expression, to receive and propagate information such arbitrary powers. There is no
justification to allow such an entity to act in absolute discretion with no benchmarks and/or criteria. In
our view the Gazette Notice is a curtailment or limitation of the fundamental right to freedom. In our
broad, general and purposive construction and interpretation of the Constitution we are of the persuasion
that the limitation or curtailment does not satisfy the principle of proportionality. There are no safeguards
in place to prevent the abuse of the powers thereby enabling the two entities to curtail the applicant’s
rights.
It is instructive that the Films and Stage Plays Act came into force in 1963. At that time, there were no
such things as videos, DVDs etc. The legal notice as promulgated in our view is out of time and tune with
current trends in information technology. It is no longer strange that one can even access and download
all sorts of news, movies, music etc from the computers in the comforts of their offices or houses. How
then can the Gazette Notice apply to such scenario? The legal notice would in those circumstances
appear to be inapplicable, impracticable and unreasonable. Although the learned State counsel argued
vehemently that the Gazette Notice was neither unreasonable,
Page 282 of [2007] 1 EA 261 (HCK)

oppressive nor impracticable, it is however our view that it is exactly just that ie it is impracticable,
oppressive and unreasonable.
Were the limitations imposed by the Gazette Notice reasonably required in a democratic society?
Section 79(2)(c) of the Constitution provides that:
“…Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in
contravention of this section to the extent that the law in question makes provisions:
...That imposes restriction upon public officer or upon persons in the service of the local government
authority, and except so far as that provision or, as the case may be, the thing done hereunder the authority
thereof is not to be reasonably required in a democratic society…
Once again the Learned State Counsel submitted quite correctly that there is no benchmark as to what is …
reasonably required in a democratic society … ”

However in the case of Re Munhumeso (supra) it was stated:

“…What is reasonably justifiable in a democratic society is an illusive concept – one which cannot be
precisely defined by the Courts. There is no legal yardstick save that the quality or reasonableness of the
provision under challenge is to be judged according to whether it arbitrarily or excessively invades the
enjoyment of a Constitutionally guaranteed right…”

The concept was further expounded in the case of NTN Pty Ltd and NBN Ltd v The State [1988] LRC
(CONST) 333 when the Supreme Court of Papua New Guinea, expressed itself thus:
“…The elusive concept of what was reasonably ‘justifiable in a democratic society’ could not be precisely
defined by Courts, but regard had to be given to a ‘proper’ respect for the rights and dignity of mankind. The
proper test was an objective one and, taking into account the interests of everyone in a democratic society,
including the applicants and their employees, and the corresponding right of the Public to receive
broadcasts…”

To the extent that the Gazette Notice gives to the Board and Licensing Officer unhindered discretionary
power with no definite criteria in deciding whether or not to grant a certificate of approval, the
requirements imposed are impracticable, oppressive and unreal and does not take into account modern
technology and could lead to absurd results. They are discriminatory, they impose conditions upon the
applicant in exercising its press freedom; which conditions infringe upon and are inconsistent with the
applicant’s rights. The totality of the foregoing is that the requirements imposed are not reasonably
required in the interest of defence, public order, public morality or public health nor for the rights of the
rights and freedoms of other persons or reasonably justifiable in a democratic society. The duplicity of
the roles of the board and the Licensing Officer with attendant financial implications and time, lack of an
independent appeal mechanism in the regulation and finally the ends intended to be, could be achieved
by a less stringent course of action making the regulations not reasonably required in a democratic
society and are therefore an unconstitutional limitation on the freedom of expression guaranteed to the
applicant under section 79 of the Constitution and we so hold.
Human rights are generally universal and inalienable but rights such as the right to freedom of
expression, the right to freedom of association and assembly and the right to freedom of movement are
generally accompanied by certain limitations that can be imposed for instance in order to protect the
rights and freedoms of others, national security, public health and public morality. The
Page 283 of [2007] 1 EA 261 (HCK)

Kenyan situation is reflected by section 70 which subjects nearly all Chapter 5 rights to the rights of
others and the public interest. This is the case with regard to freedom of expression under section 79 of
the Constitution. Section 79(2) allows limitations to the right of freedom of expression.
In this case, it is clear that we are being called upon to consider whether the limitation imposed is
lawful or constitutional. In order to adjudicate or determine this question it is necessary for us to consider
how the limitations are framed and what considerations come into play in defining the limitations.
Limitations result for a balance of the individual’s interest to maximise the enjoyment of the right with
the interest of society in general otherwise known as general interest and for such limitations to be lawful
they must comply with the following:
(i) Be defined by law see section 79(2).
(ii) Be imposed for one or more specific legitimate purposes.
(iii) Be necessary for one or more of these purposes in a democratic society (this is the meaning of
“proportionality”).
In order to be necessary, we should add that the limitations, both in general and as applied in the
individual case, must respond to a clearly established social need. It is not sufficient that the limitation is
desirable or simply does not harm the functions of the democratic constitutional order.
In this case it is our view that the above conditions for limiting the freedom have not been satisfied
thus the offending Gazette Notice has been done in excess of jurisdiction and is tainted with illegality –
therefore condition (i) above is not met. The legitimate purpose of the limitation should be to safeguard
public morality and it has not been shown how public morality is threatened and how it is intended to
safeguard it – no affidavit was filed to demonstrate the legitimacy of the purposes. Finally, it has not
been shown that the limitation is necessary in a democratic society. There is no pressing social need for
the intended curtailment or limitation and it has not been shown that all the available options have been
unsuccessful. Thus the limitation is passed on vague grounds and the criterion of proportionality has not
been met.
In addition, if the limitations are based on public morality, the absence of affidavit by the
Attorney-General to explain the basis for this is fatal to us sustaining the limitations. In this regard we
wish to borrow from the Swiss case of Muller and others v Switzerland by the European Court on 24
May 1988 series A number 133–19 paragraph 28, where the court observed:
“…It is not possible to find in the legal and social orders of the contracting states a uniform European
conception or of morals. The view taken of the requirements of morals varies from time to time and from
place to place especially in our era, characterised as it is only a far-reaching explosion … of opinions on the
subject … ”

As regards a democratic society and what is necessary is to uphold the values of broadmindedness and
pluralism including the respect for human rights, constitutionalism, the rule of law, freedom and equality
and where limitation to the right is claimed it must always be absolutely necessary, pursuing a legitimate
aim and for the purposes of serving a pressing social need. This is not the case here hence courts
intervention to uphold the right and to disregard the limitation because it cannot pass the high scrutiny
required in justifying the limitations. The reason why the court should be even more guarded in the case
of freedom
Page 284 of [2007] 1 EA 261 (HCK)

of expression is that it is in the first place the doorway to other fundamental risks such as freedom of
association and freedom of assembly and it is in the second place the cornerstone of a democratic society
without which such a society would be difficult to exist in the structure recognised today. The other trait
of human rights is their interdependence and indivisibility, the breach of one, has the potential to trigger
breaches in the others hence the importance of a broadminded approach in protecting and enforcing them.
This Court in a different panel, Nyamu J and Emukule J had occasion to consider the extent of the
freedom of expression in the case of Honourable Martha Karua v Radio Africa and others High Court
civil case 288 of 2004 (UR). In this case the court adopted as good law the holdings in the European
Commissions case of Handyside v United Kingdom IE HRR 737 where the European Court of Human
Rights observed:
“…Freedom of expression constituted one of the essential foundations of a democratic society, one of the
basic conditions of its progress and for development of every man…”

Nearer to home, this Court expressed its approval of the holding by Chaskalson, President of the
Constitutional Court of South Africa in the case of S v Makwanyane and another [1995] 6 BCLR 665
(CC) in these terms:
“… The limitations of Constitutional rights for a purpose that … and necessary in a democratic society
involves the weighing up of competing values and ultimately an assessment based on proportionality …”

The proportionality factors which the court should apply as regards limitations of constitutional rights is:
(a) That it be rationally connected to its objective;
(b) That it infringes the right or freedom as little as possible; and
(c) That there is proportionality between its effects and its objectives.
The encroachment under scrutiny cannot pass the above test.
Again the clearest definition or vision what is justifiable in an open, democratic society is that
expressed in the Handyside v United Kingdom case (supra) as follows:
“…The questions which fall to be considered are the needs or objectives of a democratic society in relation to
the right or freedom concerned without a notion of such needs, the limitations essential to support them
cannot be evaluated. For example, freedom of expression is based on the need of a democratic society to
promote the individual self-fulfilment of its members the attainment of truth, participation in decision-making,
and the striking of a balance between stability and change. The aim is to have a realistic, open, tolerant
society. This necessarily involves a delicate balance between the wishes of the individual and the utilitarian
‘greater good of the majority.’ But democratic societies approach the problem from the standpoint of the
importance of the individual, and the undesirability of restricting his, or her freedom. However in striking the
balance certain controls on the individuals freedom of expression may, in appropriate circumstances be
acceptable in order to respect the sensibilities of others. In this context freedom of expression is commonly
subjected in a democratic society to far importing restrictions considered necessary to prevent seditions,
libellous, blasphemous or obscene publications. Indeed, the legal codes of all the member states of the EU
contain legislation restricting in one way or another the right to freedom of expression in the context of
indecent, obscene or pornographic objects and literature. This can be regarded as a clear indication of the
need for such legislation in a democratic society…”
Page 285 of [2007] 1 EA 261 (HCK)

It is therefore perfectly in order to have a limiting or restricting Act such as the Act challenged in this
case or a Gazette Notice made pursuant to such an Act provided both pass the tests set out above.
The impugned Gazette Notice does not in our view pass the above tests and the respondents have not
demonstrated to the court by way of affidavit evidence or otherwise that the decision to have the Gazette
Notice or its contents was informed by the above tests. Consequently, we hold that the Gazette Notice
and its contents are ineffective in restricting or limiting the applicant’s right to freedom of expression.
Arising from the above the following declarations shall forthwith issue:
(1) A declaration that the order by the Minister for Information, Transport and Communication
purporting to act in exercise of the powers conferred on him by section 12 of the Films and Stage
Plays Act (Chapter 222 of the Laws of Kenya, published as Gazette Notice number 4014 dated 6
June 2001, infringes upon the applicant’s right of freedom of expression and the related rights.
(2) A declaration that the order by the Minister for Information, Transport and Communications
published as Gazette Notice number 4014 dated 6 June 2001, is null and void and of no legal effect
in that it does not satisfy the principle of legality set out in the Constitution and it is not necessary
or justifiable in a democratic society such as Kenya.
(3) As this is a case where proper legal advice could have been sort or availed by the State law office
the court awards the costs of the originating summons to the applicant as against the respondent.
For the appellant:
Mr Githu Muigai
For the respondent:
Mr Mwaniki

Ngala v Republic
[2007] 1 EA 285 (CAK)

Division: Court of Appeal of Kenya at Mombasa

Date of judgment: 26 January 2007
Case Number: 268/00
Before: Omolo, Waki and Onyango-Otieno JJA
Sourced by: LawAfrica
Summarised by: E Ongoya

[1] Criminal practice and procedure – Trial by assessors – Mandatory for all trials conducted before the
High Court – Conditions for dispensing with an assessor’s attendance – Failure to comply with the
conditions fatal.
Editor’s Summary
The appellant was tried and convicted by the Superior Court for the offence of murder, contrary to
section 203 as read with section 204 of the Penal Code. The offence was allegedly committed on 21
December 2002 and the appellant was arrested the following day. The appellant was first taken to Court
on 5
Page 286 of [2007] 1 EA 285 (CAK)

September 2003. Trial commenced on 23 July 2004 after selection of three assessors to assist the trial
Judge. On 4 November 2004, the second assessor did not attend Court and the Judge noted that the said
assessor was expected back in town on 11 November 2004 but ordered that the trial continues with the
assistance of the two available assessors. On 8 February 2005, the third assessor was bereaved and the
court ordered that the trial proceeds with the assistance of two assessors. On appeal from conviction, the
court noted this issue of dispensing with the attendance of assessors by the trial court as an issue.
Held – A trial which has begun with the prescribed number of assessors and continues with less than that
number is unlawful unless the case can be brought precisely within section 294 of the Criminal
Procedure Code. To be within section 294 of the Criminal Procedure Code, one of the two conditions
must be satisfied, namely, either the absent assessor is “from any sufficient cause prevented from
attending throughout the trial” or that “he absents himself and it is not practicable immediately to enforce
his attendance.” (Dickson Mwaniki M’Obici and another v Republic criminal appeal number 78 of 2006
(UR) and Abdullahi Abdalla Mukulu v Republic criminal application number 51 of 2003 followed).
The trial was not conducted in accordance with the law and there was a mistrial. The trial was,
therefore, rendered a nullity.
Whether or not a re-trial shall be ordered is within the discretion of the court and will be dictated by
the circumstances in each case. Ordinarily, a re-trial would be the appropriate order to make where there
are fundamental irregularities which would result in a miscarriage of justice which is not curable under
section 382 of the Criminal Procedure Code.
A re-trial should not be ordered unless the Appellate Court is of the opinion that on a proper
consideration of the admissible or potentially admissible evidence, a conviction might result. (Mwangi v
R [1983] KLR 522 adopted).
As a general rule of law the burden on the prosecution of proving the guilt of a prisoner beyond
reasonable doubt never shifts whether the defence set up is an alibi or something else. The burden of
proving an alibi does not lie on the prisoner. (Sekiteleko v Uganda [1976] EA 531 adopted).

Cases referred to the judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Abdullahi Abdalla Mukulu v Republic criminal application number 51 of 2003 – F
Braganza v R [1957] EA 152 (CA)
Bwenge v Uganda [1999] 1 EA 25
Cherere Gikuli v R (1954) 21 EACA 304
Dickson Mwaniki M’Obici and another v Republic criminal appeal number 78 of 2006 (UR) – F
Joseph Kabui v R (1954) 21 EACA 260
Joseph Mwai Kungu v Republic criminal appeal number 68 of 1994
Kinuthia v R [1988] KLR 699
Page 287 of [2007] 1 EA 285 (CAK)

Leonard Aniseth v Republic [1963] EA 206

Muthemba s/o Ngombe v R
Mwangi v R [1983] KLR 522 – A
Pyarala Bassan v Republic [1960] EA 854
Sekiteleko v Uganda [1976] EA 531 – A

United Kingdom
R v Johnson [1961] 3 All ER 969

Judgment
Omolo, Waki and Onyango-Otieno JJA: This is the first and last appeal by Fundi Reuben Ngala who
was convicted by the Superior Court (Ouko J) for the offence of murder contrary to section 203 as read
with section 204 of the Penal Code. It had been alleged in an information filed by the Attorney- General
that the appellant had on the 21 December 2002 at Saba Saba Village in Vitegeni Location within Kilifi
District of the Coast Province murdered Festus Kazungu Wara (hereinafter “the deceased”). Upon his
conviction, the appellant was sentenced to suffer death as by law provided.
Although the appellant has raised some six grounds in his memorandum of appeal which he drew up
in person, and learned counsel for him Mr Kadima was prepared to argue them, the matter that takes
primacy and was raised by the court is the conduct of the trial with the assistance of assessors. This is a
matter that this Court has examined many times in the past and we are disturbed that some Superior
Court Judges, mercifully only a few of them, still do not get it right. As recently as 13 October 2006, we
had occasion to state as follows:
“Section 262 and 263 of the Criminal Procedure Code provide in mandatory tone that all trials before the
High Court shall be with the help and aid of three assessors, unless under section 298, an assessor is
prevented from attending throughout the trial or absents himself and it is not practicable immediately to
enforce his attendance. In such case the trial may proceed with the remaining two assessors. The system has
however, lately received considerable criticism and may well be reviewed by Parliament in a Bill pending
before it. Nevertheless, it has served its purpose since its introduction in criminal trials in 1930 and the
purpose was stated by this Court in Kinuthia v R [1988] KLR 699 at page 702 as follows:
The purpose of the assessors is to make sure that, as far as possible in the most serious cases which are tried
by the High Court, the decisions of fact have a broad base conforming with the notions of that part of society
to which the accused person belongs. The assessors are of special value in determining what action amounts
to provocation. They are also of great importance in assessing contradictory stories of what occurred in a
particular case, and they may be able to guide a Court as to the manners and customs, and so to the truth of
what the witnesses have said. It is therefore right and proper that the trial should be with the aid of assessors,
in the full sense; they should be allowed to ask the witnesses questions; they should have exhibits and reports
shown and explained to them; and they should give their opinions in general and on special points as the
circumstances of a case require.”

That was in Dickson Mwaniki M’Obici and another v Republic criminal appeal number 78 of 2006 (UR).
In the same case we also stated:
“We stated the law on trials with the aid of assessors at the beginning of this judgment. It is evident that the
trial proceeded without one assessor at some stage and there was no reason given as required under section
298 of the Criminal Procedure
Page 288 of [2007] 1 EA 285 (CAK)
Code. The appellants were entitled to have the entire evidence tendered by the prosecution, as well as their
own evidence, heard and evaluated by three assessors. That there were only two assessors when the appellants
testified and no reasons were given for the absence of the third assessor was a fundamental departure from
that procedure and therefore an infringement of that right. The third assessor returned to hear the summing-up
and to give his opinion in the trial but that was of no consequence. The death blow had been inflicted on the
trial as a whole. The predecessor of this Court considered the effect of such anomaly in Cherere Gikuli v R
(1954) 21 EACA 304 and held:
‘(1) A trial which has begun with the prescribed number of assessors and continues with less than
that number is unlawful unless the case can be brought precisely within section 294 of the
Criminal Procedure Code (ubi supra).
(2) To be within section 294 aforesaid one of the two conditions must be satisfied, viz, either that
the absent assessor is ‘from any sufficient cause prevented from attending throughout the trial’
or that ‘he absents himself and it is not practicable immediately to enforce his attendance.’
(Muthemba s/o Ngombe v R (supra), distinguished.)”
The same Court also stated that where an assessor who has not heard all the evidence is allowed to give an
opinion on the case the trial is a nullity. See Joseph Kabui v R (1954) 21 EACA 260 and Bwenge v Uganda
[1999] 1 EA 25, a decision of the Court of Appeal, Uganda.’”

Two years earlier on 28 January 2004, the court, differently constituted in Abdullahi Abdalla Mukulu v
Republic criminal appeal number 51 of 2003, stated:
“The second aspect we find disturbing is that the record shows that on 25 September 2002, the third assessor
was absent and the Court dropped him and ordered the trial to continue with two assessors present, thus
excluding the third assessor.
The trial then continued with two assessors and the record shows that submissions were made by the
learned defence counsel as well as by the learned Principal State Counsel in the presence of the two assessors.
However on 13 November 2002 the record shows that the hearing proceeded with three assessors present and
indeed on 20 November 2002, all the three assessors including the one who had been dropped gave their
opinions to the Court. In our mind, this was not proper. Once one assessor had been dropped, he could not be
allowed back to take part in the trial. This Court made that position clear in the case of Joseph Mwai Kungu v
Republic criminal appeal number 68 of 1994 at Nakuru where the Court stated as follows:
Before every trial opens in the High Court, the Judge must select three assessors and at the beginning of
every such trial, the assessors must be three. But if in the course of the trial, as it does happen that one
assessor might, for some good cause, be unable to attend, he may absent himself as Robert Ombachi did in
this case on 22 June 1992. If that happens and the Judge decides to proceed with the remaining two assessors,
that as we said earlier, is permitted under section 298(1) of the Code. However, once the Judge has taken the
decision to proceed with two remaining assessors, the one who absented himself, whatever may be his or her
reason for being absent, must not be allowed back to the trial. The same section 298(1) requires that an
assessor must attend throughout the trial.”

We cite those cases in extenso to underscore the fact that there is no dearth of authorities on the manner
in which trials, which the law requires must be conducted with the aid of assessors, ought to be
conducted. What transpired in the matter before us?
We observe, firstly, that the offence was committed on 21 December 2002 and the appellant was
arrested the following day on 22 December 2002. The
Page 289 of [2007] 1 EA 285 (CAK)

information on the offence of murder was however filed by the Attorney-General on 12 June 2003 and
the appellant was apparently taken to court for the first time on 5 September 2003 when the date for plea
was taken. There is nothing in the record before us to explain the whereabouts of the appellant between
the date of his arrest and the date of his arraignment in Court. On the face of it, there was a grave
violation of the appellant’s right to a fair trial, but that issue has not been raised or canvassed and as
stated, there is no material before us to form a basis for a firm finding.
Be that as it may, the trial commenced on 23 July 2004, after selection of three assessors to assist the
learned trial Judge. Subsequent thereto, there was a proper conduct of the trial until the 4 November 2004
when the second assessor did not attend Court. The learned Judge made the following order:
“One assessor cannot be traced – Assessor number 2 is said to have travelled and will not return to town until
10 November 2004. In the circumstances, it is ordered that trial proceeds with the assistance of 2 available
assessors.”

He then proceeded to record the evidence of the Investigating Officer, PC Kea Rashid (PW8), who was
fully cross-examined by the appellant’s counsel. The last witness for the prosecution, Dr Michael Peter
Mwita (PW9), was not called to testify until 18 January 2005. On that day the missing second assessor
appeared and took part in the trial. The prosecution case was closed and the matter was set down for
submissions on 8 February 2005. On that day the third assessor was bereaved and had reportedly
travelled upcountry. The Court made the following order:
“In the circumstances, the case to proceed with the assistance of two assessors.”

The submissions of both counsel on no case to answer were completed without the third assessor and the
ruling was delivered on 3 March 2005 in his absence. When the appellant commenced his evidence in his
defence on 8 June 2005, the third assessor re-appeared and participated in the trial. The learned Judge
then summed up the case for all three assessors on 28 June 2005 before each one of them gave their
opinions later that day, followed by the judgment on 26 July 2005 when only two of them attended and
were discharged after judgment.
It is clear from the recital of those facts that the trial was not conducted in accordance with the law
and, quite correctly, learned Principal State counsel Mr Ogoti, conceded that there was a mistrial. On the
authorities, the trial was rendered a nullity and there cannot therefore be an appeal before us for
consideration on the merits.
Mr Ogoti then sought to persuade us that we ought to make an order for a re-trial. He submitted that
there would be no prejudice to the appellant since all the witnesses would be made available
expeditiously and there would be no delay in finalising the trial now that there was a permanent resident
Judge in Malindi Law Courts. In his view, there was sufficient evidence to lead to the conviction of the
appellant. For his part, the appellant’s counsel Mr Kadima would have none of such suggestions. In his
view, a re-trial would not be in the interests of justice considering that the appellant has been in custody
for more than four years. There was no guarantee, despite the optimism expressed by State counsel, that
all the witnesses would be readily available and that there would be no lengthy re-trial thus compounding
the agony already undergone
Page 290 of [2007] 1 EA 285 (CAK)

by the appellant. At all events, he submitted, the material upon which the appellant was convicted in the
abortive trial cannot, on proper consideration, found any conviction, even if a re-trial was ordered.
Whether or not a re-trial shall be ordered is within the discretion of the court and will be dictated by
the circumstances in each case. Ordinarily, a re-trial would be the appropriate order to make where there
are fundamental irregularities which would result in a miscarriage of justice which is not curable under
section 382 of the Criminal Procedure Code. We have already expressed our concern at the apparent
delay in bringing the appellant before Court for his trial. A large part of the period taken in the abortive
trial, from arrest to judgment, is essentially unexplained in action. Secondly, the optimism expressed by
Mr Ogoti about an expeditious re-trial is simply that – optimism. Considering that he became aware of
the irregularities in the trial when the court raised them at the hearing of the appeal, he had no time to
confirm the availability of witnesses and we have no information on the volume of work before the
resident Judge in Malindi. More importantly, it is our duty to examine the material presented or likely to
be presented to the court and to form an opinion as to whether a conviction might result. In Mwangi v R
[1983] KLR 522, this Court stated:
“A re-trial should not be ordered unless the Appellate Court is of the opinion that on a proper consideration of
the admissible; or potentially admissible evidence, a conviction might result: Braganza v R [1957] EA 152
(CA)’ Pyarala Bassan v Republic [1960] EA 854.”

What material did the prosecution lay before the court?

On the 20 December 2002, there was a wedding party at the home of Pastor David Msena Ngala Ponda
(PW3) in Vitegeni Village, Kilifi. His daughter was getting married. There were many people, music and
merrymaking. Among them were the deceased and his brother Macdonald Garama Wara (PW1) who
were related to the bridegroom. The deceased was busy mingling with the crowd and at some stage
sought out some photographers who took a photo with PW1 before disappearing again into the crowd. At
about 2:30am on 21 December 2002, PW1 went out looking for his wife within the compound and in the
process bumped into the deceased who was having an argument with another person. The person was
accusing the deceased of having stepped on a certain woman. PW1 tried to offer apologies on behalf of
the deceased at the same time pushing him back but the deceased moved towards the other person,
intending to head-butt him. The person however drew a knife and stabbed the deceased once on the left
side of his neck. The deceased ran towards PW1 crying that he was dying. PW1 moved him to a lighted
place for first aid but he collapsed and died. A post-mortem report conducted by Dr Michael Peter Mwita
(PW9) revealed that the sharp object that pierced the left side of the deceased’s neck had severed the
carotid artery thus resulting in massive haemorrhage which was the cause of death. According to the
evidence-in-chief recorded from PW1, the person who was quarrelling with the deceased, and the person
who produced a one-foot knife and stabbed him, was the appellant. PW1 had seen him once before in his
life and the stabbing took place in an area where there was light but not very bright light.
PW1 was the only person who was well-placed to link the appellant with the offence and he did not
say he was present at the scene with anyone else. His
Page 291 of [2007] 1 EA 285 (CAK)

evidence that he was able to identify the appellant however, crumbles when he states as follows in
cross-examination:
“The incident was on 20 night – 2:30am. I recorded my statement to the police where I stated that I did not
know the accused. I also stated that I did not see the suspect clearly. I also stated that I would not be able to
identify him. The suspect was in long trousers and a yellow jersey. I informed the police that I would only be
in position to identify the suspect if dressed in the manner he was dressed during the incident. This was my
second time to see the accused. My position is that I did not see the suspect clearly. I can only identify the
suspect if dressed in the same shirt and trousers as that night. There was only dim light where the incident
occurred that is why I had to move the deceased to where there was light. The suspect aimed the knife at me
but I dodged and stabbed the deceased. I do not know the woman is alleged the deceased stepped on. I cannot
recognise her even today. I did not see her clearly because there was no sufficient light. I do not know if she
had any relationship with the deceased. I do not know who took the knife to the police.”

Charo Kazungu Mwaro (PW2) who was a nephew to the deceased and PW1, attempted to support PW1
by asserting that he, Mwaro, was present at the scene and stood very close to the appellant as he
quarrelled with the deceased when he identified him through bright light provided by a power generator.
But he never saw the stabbing or the knife used. He said in part:
“I was able to see the accused clearly as I came close to him as he was arguing with the deceased. There was a
power generator and I was able to see him with the light from the generator. I was not there when the
deceased was stabbed. There were many people at the party. It is true that the light was not sufficient enough
to enable one to see the details of the incident. If the deceased was moved from the scene, it was not because
there was no sufficient light. I have stated in my statement to the police that when I returned I found the
deceased had been moved to a place where there was light. I do not know the person who was arguing with
the deceased. I did not see him after the incident. I did not see knife.”

On proper consideration of the two versions presented by PW1 and PW2 there was no consistency and
therefore no proper basis for a finding that the appellant was identified beyond reasonable doubt.
The other recorded evidence from six other witnesses takes the case no further. PW5 and PW6 merely
identified the deceased’s body for post-mortem. PW7, PC Nyongesa of Makupa Police Station merely
re-arrested the appellant who was brought to the station by one James Mkutano, a member of the public
who was not called as a witness. APC Noel Kalume (PW4) from the DO’s office was given a knife when
he visited the scene the same morning but could not tell where the knife came from or who gave it to him.
Lastly, there was the investigating officer PC Kea Rashid (PW8) who merely visited the scene and drew
a sketch map and took the deceased’s body to the mortuary. He was also given the knife by PW4 but did
nothing more about it. He stated:
“I cannot confirm that the scene had been interfered with. The knife had been collected from the scene. I did
not get to know who collected the knife. I did not try to connect the knife with the murder of the deceased. I
did not see blood stains on the knife. The knife was not taken for analysis. I only collected the body from the
scene.”

No attempt was made by the investigating officer to follow up the description of the assailant which was
given by PW1. When he was taken to the police station by a member of the public, and before the court,
the appellant said he was a student at Kisauni Polytechnic and he comes from a polygamous household of
10 boys and 15 girls. Four of the boys carry similar names and he could
Page 292 of [2007] 1 EA 285 (CAK)

have been mistaken for one of the others. He had been sent by his father on 15 December 2002 to visit a
sick aunt some 40 km away and only returned home on 21 December 2002. He never attended any
wedding and was not involved in any quarrel with anyone. That was essentially an alibi which the
prosecution did nothing to disprove. The law on alibi defence is clear and we take it from Sekiteleko v
Uganda [1976] EA 531 where it was held:
“(i) as a general rule of law the burden on the prosecution of proving the guilt of a prisoner beyond
reasonable doubt never shifts whether the defence set up is an alibi or something else (R v Johnson
[1961] 3 All ER 969 applied; Leonard Aniseth v Republic [1963] EA 206 followed);
(ii) the burden of proving an alibi does not lie on the prisoner, and the trial Magistrate had misdirected
himself.”

The alibi raised by the appellant was a specific defence but it was ignored and therefore remains totally
unchallenged.
We have said enough, we think, to justify the view we take in this matter that the material that was
placed before the court is insufficient to lead to the conviction of the appellant even if we ordered a
re-trial. We have not been made aware of any other potentially admissible evidence that would change
the equation. In the result we are not inclined to order a re-trial in the matter.
In all the circumstances we quash the conviction of the appellant for the offence of murder and set aside
the sentence of death imposed on him. We further order that the appellant be set at liberty forthwith
unless he is otherwise lawfully held.
For the appellant:
Mr Kadima
For the respondent:
Mr Ogoti

Nikolai v Republic
[2007] 1 EA 292 (CAT)

Division: Court of Appeal of Tanzania at Arusha

Date of ruling: 30 September 2005
Case Number: 59/01
Before: Mroso, Nsekela and Msoffe JJA
Sourced by: LawAfrica
Summarised by: H Majamba

[1] Criminal procedure – Trial Principal Resident Magistrate with extended jurisdiction tries a murder
case – Whether the Magistrate lacked jurisdiction to try the case (sections 173(2) and 256A(1) of
Criminal Procedure Act, 1985 as amended in 1996).

Editor’s Summary
A Principal Resident Magistrate with extended jurisdiction conducted a full trial and wrote a judgment
wherein she convicted the appellant of murder and sentenced him to death. The appellant argued that
although the Principal Resident Magistrate had been conferred with extended jurisdiction and was
competent to try the murder case, there was need for an order of the High Court transferring the case to
her. The transfer had not been made as required
Page 293 of [2007] 1 EA 292 (CAT)

by the law. He maintained that accordingly, all the proceedings before her were a nullity.
The respondent argued that the law did not specifically require the High Court to make an order of
transfer. All that mattered was that the Principal Resident Magistrate had extended jurisdiction. He
argued further that the indication on the record of the proceedings that the Magistrate had sat in the High
Court was a curable irregularity.
Held – A resident Magistrate who has been granted extended jurisdiction will try a High Court case only
where it has been transferred to the Magistrate who shall sit in the court of the resident Magistrate. The
resident Magistrate is deemed to be a Judge of the High Court only after the case has been transferred to
him or her by the High Court.
The purported trial was a nullity for want of jurisdiction. Although four years have elapsed since the
trial that never was, the appellant must be tried by the High Court before which he was arraigned.
Appeal allowed.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Manoma Malolela and others v Republic criminal appeal number 180 ROQ 31
Massive Tarisi and others v Republic criminal appeal number 63 of 2003
Muyape v Republic criminal appeal number 137 of 2003

Judgment
Mroso JA: The appellant was purportedly convicted of murder and sentenced to death by a Principal
Resident Magistrate with extended jurisdiction. He sought to appeal against the conviction and sentence.
Mr Makange, learned advocate who represents him, filed a sole ground of appeal contending that the
entire proceedings and the decision which resulted in the conviction and the sentence of death were a
nullity because the trial Principal Resident Magistrate with extended jurisdiction, lacked jurisdiction to
try the case.
At the hearing of the appeal Mr Makange argued forcefully that although the trial Principal Resident
Magistrate, Mrs A Nyerere, was indisputably conferred with extended jurisdiction and had competence
to try a murder case, the legal prerequisites for exercising her extended jurisdiction to try High Court
cases, like the murder charge in this case, had not been met. He said that the appellant had been charged
in the High Court and, that before the learned Principal Resident Magistrate could try the case there was
need for an order of the High Court transferring it to her. The second prerequisite, he said, was that the
learned Principal Resident Magistrate would then sit in her court to try it. None of those pre-conditions
were fulfilled and that, therefore, all the proceedings before her were a nullity. He cited three recent
decisions of this Court in support of his arguments and submission. These are: Manoma Malolela and
others
Page 294 of [2007] 1 EA 292 (CAT)

v The Republic criminal appeal number 180 of ROQ 31; Martin Muyape v Republic criminal appeal
number 137 of 2003 and Massive Tarisi and others v Republic criminal appeal number 63 of 2003, all
unreported. In all those cases the proceedings were nullified because the prerequisites mentioned earlier
had not been complied with. He contended that although the cited cases were appeals, the same
principles applied to original trials.
Mr Kagaigai, learned Senior State attorney, for the respondent Republic disputed the submission that
the proceedings before the Principal Resident Magistrate were a nullity. He said that section 173(2) of
the Criminal Procedure Act, 1985 as amended by Act number 17 of 1996 does not specifically direct that
the High Court has to make an order transferring any of its cases to a particular court. What was
important, according to him, was that the Principal Resident Magistrate had extended jurisdiction, which
she had, and although the record of proceedings suggested that the Principal Resident Magistrate sat in
the High Court, that was a curable irregularity. The appellant should have challenged the merits of the
decision rather than contesting the jurisdiction of the Principal Resident Magistrate who clearly had
extended jurisdiction to try a murder case. He argued that the cases cited by Mr Makange were not
relevant here because they were centred on section 45(1)(b) of the Magistrates Court Act, 1984 which
specifically relates to the appellate jurisdiction of Resident Magistrates with extended jurisdiction.
We think that although indeed the decisions of this Court which Mr Makange cited before us were all
appeals, with respect we agree with him that the legal position explained in those cases similarly applies
to cases tried under original jurisdiction by Resident Magistrates when exercising extended jurisdiction.
We reiterate that a resident Magistrate exercising extended jurisdiction to try a High Court case, in the
present context under section 173 of the Criminal Procedure Act, 1985 as amended by Act number 17 of
1996, has to ascertain that the case has been transferred to him or her by the High Court. Following from
that, the resident Magistrate with extended jurisdiction has to try the case in his or her court, that is to
say, in the court of resident Magistrate. That means a fresh case file is opened in that Court with
indication that it is an extended jurisdiction case and will bear a serial number from a special register of
that Court for such cases. The record of the proceedings and judgment will unambiguously show that
they are of the court of resident Magistrate with extended jurisdiction. These details are not in section
173 of the Criminal Procedure Act, 1985; the Act as amended, to which we have already referred or to
section 256A of the same Act, to which we will refer later. They are given here to rationalise the
application of those provisions.
Section 173(2) of the Act says:
“(2) Nothing in this section shall affect the power of the High Court to order the transfer of cases.”

We agree that this provision is not as explicit as section 45(2) of the Magistrates Courts Act, 1984 as
amended by Act number 2 of 1996 which reads:
“45 (2) The High Court may direct that an appeal instituted in the High Court be transferred to and be
heard by a resident Magistrate upon whom extended jurisdiction has been conferred by section
45(1).”
Page 295 of [2007] 1 EA 292 (CAT)

Under the Magistrates Courts Act it is clear that the High Court may direct the transfer of an appeal from
itself to a resident Magistrate with extended jurisdiction.
Unfortunately, during the hearing of the appeal neither Mr Makange nor Mr Kagaigai referred to
section 256A(1) of the Criminal Procedure Act, 1985 as amended. Had they done so, if they were aware
of its existence, a lot of time and effort which was spent in arguing on the legal effect of section 173(2)
of the Act would have been saved.
The section reads as under:
“256A (1) The High Court may direct that the taking of a plea and the trial of an accused person
committed for trial by the High Court, be transferred to, and be conducted by a resident
Magistrate upon whom extended jurisdiction has been granted under sub-section (1) of section
173.”

It is obvious, therefore, that a resident Magistrate upon whom extended jurisdiction has been conferred
will try a High Court case only if it has been transferred to him or her by the High Court. It is also
pertinent, as already explained in this judgment, that since a resident Magistrate with extended
jurisdiction to whom a High Court case has been transferred for trial normally sits in the court of
Resident Magistrate, he or she will conduct the trial in that Court. It is then that such court is deemed to
be the High Court and the trial resident Magistrate is deemed to be a Judge of the High Court. See section
173(3) of the Act as amended. As explained in Manoma s/o Malolela cited above, the “deeming”
presupposes that the court in which the resident Magistrate with extended jurisdiction sits to try a High
Court case which was transferred to him or her is not in fact, the High Court and that such resident
Magistrate is not in fact a Judge of the High Court.
The appeal which is before us was High Court, Arusha Criminal Sessions case number 26 of 1998. It
was to be tried by a Judge of the High Court but it was not. Instead, it was tried by a Principal Resident
Magistrate with extended jurisdiction. It had not been transferred to her as required by section 256A of
the Act, as amended. Or, to put it another way, we could not find any clue that the case had been
transferred to her. All the indications are that the Principal Resident Magistrate simply assumed
jurisdiction, presumably because she had extended jurisdiction under section 173(1) of the Act to try
High Court cases. But even if it is assumed that the case had been transferred to her verbally without any
written direction or that there was a written direction transferring the case to her but which somehow
subsequently became misplaced and so could not be included in the record of appeal, then she should
have sat in her court, the Resident Magistrates Court at Arusha, not in the High Court of Tanzania at
Arusha as the record of appeal portrays.
The record shows that the case was initially before NM Mushi, Judge. After four adjournments by
Mushi, J suddenly the Coram shows “AC Nyerere, PRM Ext Jurisdiction”. From then on the High Court
record shows that AC Nyerere, PRM with extended jurisdiction was presiding in the case. After a full
“trial” the PRM with extended jurisdiction wrote a “judgment” in which she “convicted” and “sentenced”
the appellant.
We do not need to belabour the point that the learned Principal Resident Magistrate was not
competent to sit in the High Court because she was not a High Court Judge. In other words, she was not
clothed with jurisdiction to sit
Page 296 of [2007] 1 EA 292 (CAT)

in the High Court, and that is not a curable irregularity. The case could not have been transferred to her
from the High Court, therefore, because it remained in the High Court, section 256A of the Act had not
been complied with. The purported trial was a nullity for want of jurisdiction.
We, therefore, with respect, agree with Mr Makange that the entire proceedings which were before
the learned Principal Resident Magistrate with extended jurisdiction were a nullity and we so declare.
The charge which the appellant faced in the High Court is a serious one and although it is now more
than four years since he was subjected to a trial that never was, we regret that we have to order, as we
now do, that he be tried by the High Court before which he was arraigned unless that Court deems it fit to
direct under section 256A(1) of the Act as amended by Act number 17 of 1996, that the case be tried by a
resident Magistrate with extended jurisdiction.
For the appellant:
Mr Makange
For the respondent:
Mr Kagaigai

Njogu and Company Advocates v National Bank of Kenya Limited

[2007] 1 EA 296 (CCK)

Division: Milimani Commercial Court of Kenya at Nairobi

Date of ruling: 24 April 2007
Case Number: 730/06
Before: Warsame JA
Sourced by: LawAfrica
Summarised by: C Kanjama

[1] Advocate – Instructions fees – Agreement on fees – Whether taxation reference competent –
Agreement illegally providing for payment of lower-than-scale fees – Whether agreement enforceable –
Whether advocate can benefit from champerty agreement to obtain work and subsequently tax fees at
scale – Sections 36, 44, 45 and 46 of the Advocates Act – Rule 3 Advocates Remuneration Order.

Editor’s Summary
The advocates brought a reference against the decision of the taxing master upholding the client’s
preliminary objection. The client and advocate had entered into an agreement regulating the fees
chargeable by the advocate to 30% of the scale fees chargeable, with any balance to be recovered from
the client’s debtors during enforcement of decree. The advocate argued that the said agreement was
illegal and a nullity because no agreement for fees at less than the amount provided by the Advocates
Remuneration Order is permissible in law.
Held – An advocate is permitted to enter into an agreement with any particular client for any particular
business, but he has an obligation to conform to the requirements of the Advocates Act, including the
prohibition of touting and under-cutting. An advocate who makes an agreement for fees, removes himself
Page 297 of [2007] 1 EA 296 (CCK)

from being entitled to scale fees. An advocate who makes a champertous or otherwise illegal agreement
on fees is more responsible than the client and should not benefit from that illegality to obtain extra fees.
(Maina Njenga and Company v National Bank of Kenya miscellaneous application 583 of 2003;
Ahmednasir, Abdikadir and Company v National Bank of Kenya Limited miscellaneous application 753
of 2004 doubted and not followed).
Appeal dismissed.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Ahmednasir, Abdikadir and Company Advocates v National Bank of Kenya miscellaneous civil
application number 753 of 2004 (UR) – DT
Maina Njenga and Company Advocates v National Bank of Kenya High Court miscellaneous civil
application 583 of 2003 (UR) – DT
Shimmers Plaza Limited v National Bank of Kenya High Court civil case number 229 of 2001 (UR)

Ruling
Warsame JA: This is a reference against the decision of the taxing master made on 29 September 2006,
upholding the client’s preliminary objection against the taxation filed by the Advocate. The Advocate is
aggrieved by the decision of the taxing master upholding the preliminary objection raised by the
respondent herein. The preliminary objection was based on documents allegedly exchanged between the
client and the Advocate in respect of the manner of charging Advocates fees. It appears, the taxing master
made reference to at least four letters dated (1) 28 July 1999, (2) 11 September 2000, (3) 29 September
2000 and (4) 21 January 2003.
The offensive one, which has been the subject of many other decisions is the one dated 28 July 1999,
which, inter alia, provided:
(1) Advocate-client fees for non-contentious work – 30% of scale fees subject to a limit of
KShs 200 000. The balance may be recovered directly from the Bank’s customer.
(2) Advocate-client fees for contentious work – 30% of scale fees subject to a limit of KShs 200 000.
The balance may be recovered directly from the Bank’s customer.
(3) Advocates may at their discretion opt to request for a further fee of 30% directly from the Bank in
contentious matters whenever full recovery is made.
(4) The fee set out excluded VAT and disbursements.
(5) The agreement excluded all work in progress.
(6) Advocates were requested to apply the spirit of the agreement, which was entered purportedly
under rule 3 of the Advocates Remuneration Order.
Page 298 of [2007] 1 EA 296 (CCK)

(7) Advocates were requested to kindly confirm acceptance by signing and returning a copy of the said
letter.
The said letter was followed by another detailed letter dated 11 September 2000, which re-inforced or
cemented the position of the Bank in its letter dated 28 July 1999 to the applicant. The said letter had 13
conditions or terms that were fully and firmly accepted by the Advocate in a letter dated 26 September
2000. M/S DN Njogu and Company Advocates replied to the letter dated 11 September 2000 as
hereunder:
“We thank you for your letter dated 11 September 2000 and return the same herewith duly signed in
acceptance of the terms and conditions.
In connection with condition (12) we would inform you that we have a professional indemnity policy with
Alico Kenya in the sum of KShs 10 million valid to 17 November 2000 and send herewith a photocopy of the
same for your perusal and record.”

There is also evidence to show that the advocates signed what was called a certificate of inclusion into
the panel of Advocates of the Bank. The said relationship appears to have been renewed by sending out a
letter of acceptance of the appointment on yearly basis. As a result of that general retainer, the Advocates
were instructed in Shimmers Plaza Ltd v Bank High Court civil case number 229 of 2001 Milimani
Commercial Court through a letter dated 21 February 2001.
In a letter dated 12 April 2001, the Advocates wrote to the Bank in respect of High Court civil case
number 229 of 2001 requesting for an interim fee note, it is essential to reproduce the said letter:
“Please refer to the above matter and another letter dated 30 March 2001.
We would like to inform you that we filed and served a suitable defence in this matter, a copy of which we
enclose herewith for your perusal and records.
Meanwhile we enclose herewith an interim fee note in accordance with the bank’s guidelines on fees which
we request you to kindly settle to cover part of our legal fees and disbursements.”

In the said letter, the Advocates requested and demanded fees as per schedule VI 1(b) and (d) of the
Advocates Remuneration Order 1997, as read together with the bank’s guidelines on fees. The fee note
sent for payment was for KShs 247 800 inclusive of VAT. The Bank, through cheque number 005378
paid the said sum in settlement of the fee note in the letter dated 12 April 2001. It appears at some point a
dispute arose between the Bank and its Advocates culminating in the Advocate sending a fee note dated
16 June 2006.
After giving a discount for the sum paid, the Advocate now demanded a sum of KShs 35 572 921-43
from the Bank for work done. It is important to note that by the time dispute arose the matter had not
been finalised. And, on 26 July 2006 a fee note of KShs 39 was million set down for taxation before the
taxing master. When the matter came up for taxation before the taxing master, the Advocate for the Bank
raised a preliminary objection. The gist of that objection is that the Advocate was retained by the client
pursuant to a written contract, which determined the fees payable, and which was duly paid. And costs
having been agreed upon and settled, the same cannot therefore be the subject of a taxation or other
determination by the court. In any case parties must be held to their bargain.
Page 299 of [2007] 1 EA 296 (CCK)

After hearing the submissions of both sides, the taxing master wrote a well considered ruling
upholding the objection by the client. In the opinion of the taxing master, an Advocate should not accept
fees below those stipulated in the Advocates Remuneration Order. The taxing master based his views on
rule 3 of the Advocates Remuneration Order, which reads:
“No Advocate may agree or accept his remuneration at less than that provided by this order except where the
remuneration assessed under this order would exceed the sum of KShs 10 000 and in such event the agreed
fee shall not be less than KShs 10 000.”

Basing his decision on the above provision the taxing master held:
“It is not the duty of the courts to write or rather rewrite the contracts for parties. Parties are deemed to freely
enter into contracts based on sound judgment and advise. The contract between the applicant and respondent
herein is mainly evidenced by the 4 letters mentioned herein above and especially the letter of 28 July 1999
which was subsequently reiterated in the letter of 11 September 2000, 26 September 2000 which was in
response to the letter of 11 September 2000 and the one of 31 January 2003 which again does reiterate the
letter of 28 September 1999.
The applicants did in all the 3 occasions respond positively to the terms laid out therein and in the fee note
dated 12 April 2001 which was drawn and settled as per the terms agreed upon by the parties. I have given
consideration to the provisions of sections 44, 45 and 46 of the Advocates Act Chapter 16 and especially
section 45(1). An agreement made between parties on fees and the same evidenced in writing is valid and
binding. Such an agreement can only be set aside if an application is made within one year of the making of
the agreement. The effective date of this agreement is at the very latest 11 April 2003, presuming the offer of
31 January 2003 was a main offer and not subject to the previous contract as per the letter 28 July 1999.
Considering all the arguments and submissions of the advocates, I do find that the contract entered into
between the applicants and respondents is valid and enforceable.”

Being aggrieved with the above decision the applicant filed the present reference challenging the
decision of the taxing master as being contrary to law. It is the contention of the applicant that the taxing
master erred in principle that there existed a valid contract on payment of legal fees as between the
applicant and respondent. Mr Njenga, Advocate, submitted that the said contract was not valid within the
provisions of sections 44, 45 and 46 of the Advocates Act Chapter 16 Laws of Kenya. Mr Njenga,
Advocate also attacked the agreement dated 28 July 1999, for it provided for payment of fees upon
success of the case. A casual reading of that agreement shows that it is inconsistent with the provisions of
section 46(c) and (d) of Chapter 16 Laws of Kenya, he asserted.
Mr Njenga further submitted that the ruling of the taxing master is founded on section 45(1) of
Chapter 16. And in his opinion, the taxing master could not apply section 45(1) without giving due
consideration to section 46 of Chapter 16 Laws of Kenya. Any agreement expressed under section 45
would first have to satisfy the provisions of section 46 of Chapter 16, before it can be valid between an
Advocate and client. Mr Njenga submitted that on three occasions, the High Court interpreted the
agreement dated 28 July 1999 and came to a conclusion that an agreement which compromises the fees
of an Advocate in a manner contrary to the law, is invalid.
According to Mr Njenga, Advocate, rule 3 of the Advocates Remuneration Order is a subsidiary
legislation which cannot be used to override a substantive of provision of the Act – section 46. He
submitted that though rule 3 allows parties to contract for fees for amounts below the applicable scale, it
does not
Page 300 of [2007] 1 EA 296 (CCK)

legalise a situation where the said contract is founded on a condition which clearly offends the provision
of the law. Had the contract provided for a flat fee without making the balance payable without the
success of the Advocate, then it would have been valid, therefore he urged me to allow the reference and
set aside the ruling of the taxing master.
No! Says Mr Ojiambo, Advocate for the respondent. He submitted as follows:- That there is no good
reason advanced to interfere with the decision of the taxing master. The applicant is under duty to show
and demonstrate to court an error of principle. He stated that the Deputy Registrar took time to consider
both the agreement and the provisions of the Advocates Act and the Advocates Remuneration Order.
Rule 3 of the Advocates Remuneration Order allows an Advocate/client to agree on fees, on condition
that the amount agreed upon is more than KShs 10 000. The rule particularly allows an Advocate to agree
to fees that is less than what is described under the scale.
Mr Ojiambo, Advocate submitted that there is a shared view among most of the legal fraternity that
the agreement is illegal because of the 30% but the agreement says the bank pays 30% of the scale fees
up to a limit of KShs 200 000. The complaint by the applicant is not that the 30% is less than
KShs 10 000 but the applicant submits that their fees is in millions.
It is the contention of the respondent that the payment of 30% is not paid on success but it is an
entitlement upon instructions. Mr Ojiambo, Advocate, submitted that the major quarrel of the respondent
is that Judges confronted with similar situations like present case failed to distinguish or appreciate the
obligation of the parties and in particular that the Advocates had agreed to the terms of the contract.
He further submitted that, there is nothing pending in this matter as the Bank has already paid the fees
due and payable under the contract and that the Bank has not infringed on the provisions of section 46(b)
of Chapter 16. It is the contention of the respondent that recovery and success is distinct in different
situations as it obtains in the present matter.
One different issue raised by Mr Ojiambo, Advocate, is that in all the other matters already
determined by the High Court, the Bank submitted itself to taxation process, thereafter at the stage of
reference, some at the entry of judgment, brought the issue of the agreement. He asserted that the
moment you submit yourself to the process of taxation, then the scale applicable is that described by the
Advocates Remuneration Order, because taxing officers are not allowed to tax costs based on private
agreement. And that is the bar, which is contained in section 45(b) of Chapter 16 Laws of Kenya. In this
case the parties agreed on costs, which was subsequently paid upon demand.
Finally, he submitted that the decision by Justice Maraga in High Court civil case number 587 of 2001
is distinguishable from the present matter. That decision was re-inforced by Kasango J in Ahmednasir,
Abdikadir and Company Advocates v National Bank of Kenya miscellaneous civil application number
753 of 2004, where the two Judges were of the opinion that the subject agreement is illegal, therefore
unenforceable.
Now let me determine the matter, which has generated considerable legal debate and interpretation.
The opinion expressed by at least three Judges of the High Court is wide and varied, but one central
nerve that runs through all the three decisions is that the position pertaining to the agreement dated 28
July
Page 301 of [2007] 1 EA 296 (CCK)

1999 is not settled. With tremendous respect to my brothers, Justice Maraga and Ochieng J and my
sister, Kasango J, gave a good and sound analysis of the matter, which resulted in their shared view that
the agreement is unenforceable. Nevertheless, this Court is entitled to reach its own verdict, the reasons
of which I shall state later in this ruling.
Section 45(1) provides that:
“Subject to section 46 and whether or not an order is in force under section 44, an Advocate and his client
may
(a) before, after or in the course of any contentious business, make an agreement fixing the amount of the
Advocates Remuneration in respect thereof …and such agreement shall be valid and binding on the
parties provided it is in writing and signed by the client or his agent duly authorised on that behalf.
(3) An agreement made by virtue of this section, if made in respect of contentions business, shall not
affect the amount of or any rights or remedies for the recovery of any costs payable by the client to or
to the client by any person other than the Advocate.”

In this case, the parties agreed on the mode and manner of payments. The Advocate/applicant agreed to a
set of conditions and terms, sent by the Bank to various Advocates. It was prerequisite for the Advocate
to accept compliance of the requirements contained in the purported agreement. The Advocate had the
right to refuse, to accept what is now being called an invalid agreement. In my view an Advocate has no
legal or moral authority to bind himself to what would amount to an illegal contract, which puts the
reputation and dignity of the legal profession into disrepute. Section 46 of Chapter 16 bars an Advocate
from accepting an agreement by which an Advocate retained or employed in a matter which stipulates for
payment only in the event of success in such suit or proceedings or that he would be remunerated at
different rates according to the success or failure of the matter instructed to prosecute or defend.
Perhaps section 46 has to be read together with sections 44 and 45 of Chapter 16. And rule 3 of the
Advocates Remuneration Order cannot be wished away to suit the prudent circumstances of the parties.
The guiding factor in all the situations under sections 44, 45 and 46 is the requirement under section
36 of the Advocates Act. Section 36(1) provides:
“Any Advocate who holds himself out or allows himself to be held out directly or indirectly and whether or
not by name, as being prepared to do professional business at less than the remuneration prescribed by order,
under this ‘Act’ shall be guilty of an offence.
(2) No Advocate shall charge or accept otherwise than in part payment any fee or other consideration in
respect of professional business which is less than the remuneration prescribed, by order, under this
Act.”

It is clear in my mind that, an Advocate is permitted to enter into an agreement with any particular client
for any particular business. In doing so, he has an obligation to conform to the requirements contained
under sections 36 and 46 of the Advocates Act. If the Advocate willingly and with his legal mind, enters
into an agreement with his client, then he has a cardinal and fundamental duty to ensure compliance with
the law. The law is meant to protect the Advocate from unprofessional conduct, which is contrary to the
spirit and intendment of Chapter 16 Laws of Kenya. In my humble view Chapter 16 is meant to protect
the Advocate and the public from unprofessional and illegal acts or omissions. It
Page 302 of [2007] 1 EA 296 (CCK)

is the duty of the Advocate that he does not put himself in situations, where he unfairly and illegally
attracts business to himself by breaking the law. That is why the law does not permit undercutting and
touting, for it accords undue advantage to a particular Advocate. The word used under sections 36 and 46
is “shall” which is mandatory in its effect and usage.
To me an Advocate is a person well endowed with sound legal mind and judgment. He or she is
presumed to be learned in his tools of trade and the moment he submits himself to a situation contrary to
his professional calling, then the baby must remain on his lap. If two parties willingly agree to conceive
an idea and the same is put into writing, signed, accepted and executed by the parties, then the court can
only be called to intervene in distinct situations. The parties herein entered into an agreement under
section 45 of Chapter 16 as read with rule 3 of the Advocates Remuneration Order. It is provided under
section 45(6) of Chapter 16 that where there is an agreement, the costs of an Advocate shall not be taxed,
unless there is fraud, illegality and/or coercion in the agreement. In this case, it is alleged that the
agreement is illegal for it is contrary to the provisions of sections 44 and 46 of Chapter 16 Laws of
Kenya.
There is no dispute that the agreement subject of this determination was made with sound legal advice
and at arms length. The question is whether the Advocate should be allowed to wriggle out of the said
contract without vitiating factors, or whether the terms in the contract can amount to vitiating factors.
In the matter of Maina Njenga and Company Advocates v National Bank of Kenya High Court civil
case miscellaneous civil application 583 of 2003 Maraga J held:
“It is not in dispute that the agreement provides for payment of 30% of the Advocates scale fees excluding
VAT and disbursements and that the balance may be recovered directly from the Bank’s customer. The
Advocate would also be entitled to a further 30% whenever full recovery is made. Obviously, the Advocates
cannot recover the balance from the bank’s customers if the bank does not win the case for costs follow the
event. It follows therefore that if the Bank’s case flopped the Advocates would have to be content with 30%
of the scale fees plus VAT and disbursements. If the Bank won and made full recovery then the Advocate
would be entitled to a further 30% of the scale fees plus VAT and disbursements.”

In my humble view Maraga J was more concerned with the effect of the agreement, in that the Advocate
would be paid 60% of the scale fees which is less than the scale fees provided for in the Advocates
Remuneration Order. It is my take that it is not the business of the court to read extraneous issues into a
contract entered into with sound legal mind. The Advocate knew and was conscious of the effect and
implication of the contract he was entering into and once he appended his signature on the contract, then
he has no way to wriggle out of it. The law provides that an Advocate can enter into a contract on
payment of fees. And if he decides to bind himself to a sum far below the scale allowed, then he cannot
be heard to rubbish the contract. The contract allowed the Advocate to get work from the Bank, therefore
when a dispute arises the court must allow parties to bath their baby. The court should not in my view
provide water to wash the dirt from the baby conceived and carried by the Advocate, when the baby is of
no more beneficial use to the Advocate.
The provision of section 36(2) is that, no Advocate shall charge or accept, otherwise than in part
payment any fee or other consideration in respect of professional business which is less than the
remuneration prescribed by order
Page 303 of [2007] 1 EA 296 (CCK)

under Chapter 16 Laws of Kenya. In my view once an Advocate makes an agreement with a client, he
removes himself being entitled to fees under the scale. Section 45(1) of Chapter 16 gives parties to
negotiate and enter into an agreement which would be valid and binding on the parties thereto provided
the agreement is in writing and signed by both parties.
Partly the execution of the agreement had the effect of incorporating the Advocate onto the bank’s
panel of Advocates. Without appending his signature to the agreement dated 28 July 1999, the Advocate
could have received work from the bank. It also means he would not be incorporated into the bank’s
panel of Advocates. In my view, by agreeing to the contents of the letter dated 29 July 1999, the
Advocate derived considerable beneficial interest from that agreement. The Advocate knew that the
agreement restricted the amount or scale of fees that he was entitled. He also knew that the agreement
imposed an obligation on the bank’s customers but he chose to sign, therefore, he cannot be heard to
attack the contents when a dispute arose and when the brief is taken away from him.
In the letter dated 12 April 2001, the Advocates after receiving instructions from the Bank in the
subject ie Shimmers Plaza Limited v National Bank of Kenya High Court civil case number 229 of 2001,
it wrote:
“We enclose herewith an interim fee note in accordance with the bank’s guidelines on fees which we request
you to kindly settle to cover part of our legal fees and disbursement.”

The above letter is acknowledgement that the Advocates were subject to the agreement dated 28 July
1999. The fee note sent was duly paid before the matter was taken away from them. If the Advocate
subjected himself to the agreement when the relationship was good then he cannot run away from it when
the brief is taken away and given to another Advocate. In my view the effect of illegality is to prevent a
party from receiving under an agreement, if in order to prove his rights under it, he has to rely upon his
own illegal act. What I mean is that the Advocate obtained instructions to defend the respondent on the
strength of the agreement dated 28 July 1999. If the agreement was expressly or impliedly prohibited by
statute, then the Advocate after deriving advantage cannot be allowed to say that after all the agreement
is void ab initio.
It would seem that at the time of making the contract the Advocate had the intent to solicit work from
the bank, thereby breaking the law. And in my view, at the time of performance he must be held back to
the contents and effects of the alleged contract. Plainly, the Advocate submitted himself to what my
brother, Ochieng J called a champertous agreement. My opinion is that when an Advocate makes a
champertous agreement with his client, the Advocate is more guilty, for he knew the contract stipulated
terms contrary to the essence and existence of the Advocates Act. If he recovers and gets work on the
strength of an illegal contract, which provides the fees payable, then he has regulated his fee note to that
contract.
The cause of action of the applicant is based on the agreement dated 28 July 1999 which it now calls
an illegal contract. The answer is that a party cannot sustain his cause of action by showing that he
participated and sanctioned an illegality, which had the effect of giving undue advantage. In such
circumstances the court cannot come to his aid to wriggle out of that relationship. No court will lend its
aid to a party who founds his case on an illegal contract.
Page 304 of [2007] 1 EA 296 (CCK)

The parties were equal when the agreement was executed and now I think it is too late for the court to
come to the aid of one party. The applicant had the advantage of being an Advocate to make responsible,
reasonable and sound judgment as to the effect of the agreement. At the time of making the agreement
dated 28 July 1999, the parties knew their respective positions. When the applicant was instructed to
defend in High Court civil case number 229 of 2001, he knew the fees structure applicable. It is not the
concern of this Court to regulate the conduct of two willing parties who consummated a marriage with
agreed terms and conditions. This court was not there when the marriage and its terms was being
conceived. This court can only tell the parties that you cannot change your respective positions when the
horse has bolted.
Now that the marriage has broken down, the parties must fulfil and abide by the rules of their earlier
engagement which regulated their relationship. I refuse to alter the terms of the marriage and I am
satisfied that the rules, condition and terms are applicable to the present matter. My considered view is
that there is no fault or discrepancy in the agreement dated 29 July 1999. The parties had the liberty and
discretion to regulate their relationship. They did so in a particular manner, which this Court is
empowered to safeguard.
Having addressed my mind to the decision of the taxing master, I see no point of departure to enable
me to overturn it. It was based on sound analysis of the law. It was a perfect determination of the issues
brought before him. His appreciation of the law is to the point and I see no error or failure committed by
him.
In the premises, the reference dated 22 November 2006, is dismissed. I think it is not reasonable to
order costs against the Advocate because of the various approaches taken by the High Court in the
interpretation of the subject agreement.
I therefore dismiss the application with no orders as to costs.
For the appellant:
Information not available
For the respondent:
Mr Ojiambo

Okere v Kiiyukia and others

[2007] 1 EA 304 (HCK)

Division: High Court of Kenya at Nairobi

Date of judgment: 4 May 2007
Case Number: 02/04
Before: Rawal JA
Sourced by: LawAfrica
Summarised by: R Rogo
[1] Land law – Indefeasibility of registered title – Allegations of fraud – Burden of proof – Failure to
particularise the fraud.

Editor’s Summary
The plaintiff alleged that he had been at all material times the owner of the suit property and that the City
Council of Nairobi unlawfully, wrongfully and
Page 305 of [2007] 1 EA 304 (HCK)

fraudulently sold the same to the second defendant who in turn sold the same to the first defendant. He
further alleges that the third defendant had no interest to pass a good title and thus, the said two
transactions were null and void. The three defendants denied all the averments. The third defendant
averred that it transacted over the subject property with statutory proprietary rights and within legally
justifiable parameters. The second and third defendants averred that they were innocent purchasers for
value.
Held – The plaintiff was an allottee of the plot number 281. Although it is not raised by any of the
parties, there is no evidence that the said plot was then re-numbered as plot number 305 which is the suit
property and which was first registered in the name of the second defendant and thereafter transferred to
the first defendant without any encumbrances shown thereon. In short, the title documents do not show
any interest claimed by the plaintiff.
The allegation of fraud, collusion, and/or negligence have to be strictly proved and the onus to prove
lies on the party alleging the same. This principle is trite law of evidence and in this case, the burden of
proof does not shift to the defendants. (Koinange and others v Koinange [1986] KLR 23 followed).
The second defendant derived a lawful title from the third defendant which is, in any event,
indefeasible even on the face of fraud and the first defendant was a bona fide purchaser for value without
notice and thus obtained a lawful title in respect of the suit property. Even if the interest of the plaintiff
existed, it was an inchoate one and could not defeat the registered proprietorship of the first and second
defendants. Even as per the provisions of section 143 of the RLA both are entitled to the registration of
title in their respective names. Further, the plaintiff has only shown that he was allotted a plot bearing
Land Reference number Nairobi/Block 63/281 and not the suit property which is Land Reference number
Nairobi/Block/305. There is no evidence to find that both these plots are the same. Hence the allocation
of the Land Reference number Nairobi/Block 63/281 in the name of the plaintiff cannot defeat the
registered proprietorship of the second defendant and first defendant respectively, in respect of Land
Reference number Nairobi/Block 305.
Suit dismissed.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Ambale v Musolia [1986] KLR 241
Chauhan v Omagwa [1985] KLR 650
Emlsa Mutsonga v Njah [1984] KLR 425
Geila v Cassman Brown and Company Limited (1973) EACA 358
Koinange and others v Koinange [1986] KLR 23 – F
Lilian Waithera Gachuhi v David Shikuku Mzee High Court civil suit number 10 of 2003 (UR)
M’mukanya v M’mbijiwe [1984] KLR 761
Mutsonga v Nyati [1984] KLR 425
Page 306 of [2007] 1 EA 304 (HCK)

Obiero v Opiyo and others [1972] EA 227

Wreck Motor Enterprises v Commissioner of Land and others Nairobi [1997] LLR 546 (CAK)

Judgment
Rawal JA: In this suit the plaintiff under his further amended plaint dated 19 July 2005, seeks prayers of
(1) permanent injunction restraining the three defendants from remaining on, trespassing upon, wasting,
constructing, selling, alienating, fencing or interfering and/or dealing in any manner whatsoever with
land title Nairobi/Block/63/305, originally plot number 281 of Jamhuri Phase II and removal of the
structures therein at the defendant’s costs; (2) general damages; (3) costs and (4) a declaration that he is
the owner of the aforesaid property (hereinafter referred as “the suit property”), as well as order of
cancellation of the title of the suit property in favour of the first defendant.
He alleges that he has been at all material time, the owner of the suit property and that the City
Council of Nairobi (third defendant) unlawfully, wrongfully and fraudulently sold the same to second
defendant who in turn sold the same to the first defendant.
The particulars of negligence, collusion or fraud of the defendants have been particularised in
paragraph 5 of the further amended plaint.
It is also alleged that third defendant had no interest to pass a good title to the second defendant and
second defendant did not have any title to pass on to the first defendant. Thus the said two transactions
are null and void.
The three defendants filed their respective amended defences and denied all averments made in the
further amended plaint.
Third defendant averred that it transacted over the subject property with statutory proprietary rights
and within legally justifiable parameters. Second defendant averred that she was an innocent purchaser
for value and the first defendant also raised similar defence.
The statement of agreed issues was filed on 23 November 2004.
Thereafter, the trial commenced before me on 12 February 2007.
The plaintiff testified that around the year 1992, while he was an employee of Nairobi City Council
(third defendant), he applied for an allotment of a plot. He received a letter of allotment dated 10
February 1992. The plot allocated was plot number 281 of Jamhuri Estate Phase II. The letter was
produced as an exhibit (P exhibit 1). It required him to pay a stand premium of KShs 9 000 and annual
rent of KShs 1 800. He paid KShs 10 800 on 13 February 1992, receipt whereof was produced (P exhibit
2). In pursuance to further letter from the third defendant, he paid KShs 2 000, being payment of a plan
and survey fees of KShs 5 700 (P exhibits 3, 3(a) and (b)).
After the payment of KShs 5 700 towards survey fees on 25 May 1992, he accompanied a surveyor
who surveyed the plot and placed beacons on the plot. Although he testified that he was given the plan,
he did not produce it in evidence. He started looking for funds to construct on the plot. According to him
the third defendant was supposed to be organising for the title deed from the Registrar of Lands.
Page 307 of [2007] 1 EA 304 (HCK)

He revisited the plot around December 2003 and found someone constructing thereon. Thereupon he
instructed his Advocate to write a letter to Nairobi City Council to furnish details of the first allottee of
the plot. It was responded by the Director of City Planning, of third defendant, on 29 April 2004. It
confirmed that the plaintiff was the original allottee (P exhibits 5 and 6). He also addressed a letter dated
2 April 2004 to the Town Clerk of third defendant asking him to confirm to the Commissioner of Lands
that he was the original allottee (P exhibit 7). His advocate applied for a certified copy of the original
title. The same as well as certificate of official search dated 2 January 2004 were also produced (CP
exhibit 5 and 8 (a), (b) and 9).
A photograph showing the construction on the plot also was produced (P exhibit 10).
He denied that he was informed about the cancellation of the said allotment from the third defendant.
He averred that the land which was so allotted to him was thereafter wrongfully and unlawfully
transferred to second defendant who then similarly transferred to first defendant.
I may note here that apart from P exhibit 8(a), (b) and 9, the other exhibits produced by the plaintiff
referred to plot number 281, P exhibits 8(a), 8(b) and 9 are in respect of plot number 305.
He agreed that as per his evidence, the first registered proprietor of the plot number 305 was the
second defendant and that he had no proof that the first defendant had colluded with any of the other two
defendants or that she committed any fraudulent acts to get the land.
He also agreed that he did not write any acceptance letter as required in the last condition of the letter
of allotment. He only paid the money required. He also testified that he did not have any proof to show
that plot number 281 allotted to him was changed to read plot number 305. He also did not write any
letter to the third defendant to inquire about his plot for the period from 1992–2003. He also did not
communicate to the Registrar or Commissioner of Lands. He also conceded that when the plot was
surveyed he did not fence the same as there was garbage around. He had to agree that in the register of
the plot, his interest has not been mentioned at all. He agreed that contrary to what he stated in paragraph
6 of the further amended plaint, he did not serve any letter of demand to the second defendant. He
insisted that there was fraud committed, as all these transactions were undertaken behind his back. He
also agreed that as per the letter of the third defendant, he is confirmed to be the original allottee in
respect of plot number 281.
The defence of the first defendant was led by her husband who was holder of her power of attorney
(exhibit D1 A).
He knows the plaintiff from the day he visited their site in 2003.
The couple was looking for a plot along Jamhuri Estate and identified the plot in question (suit
property). He was shown the title deed through an agent which showed the second defendant as
proprietor of the suit property. On checking with the office of the Registrar of Lands, the title deed was
found to be valid (exhibit D1 B).
He produced the sale agreement executed between the second and first defendants (exhibit D1 C).
Page 308 of [2007] 1 EA 304 (HCK)

He paid the stamp duty of KShs 24 010 on the purchase price of KShs 600 000. He further paid
transfer fee of KShs 250 (exhibit D1 D and E). Thereafter, the title deed was transferred in the name of
the first defendant (exhibit D1 F).
Thereafter, first defendant took over the possession and they started construction. They did not
involve third defendant when entering into the transfer transaction.
He denied that he was aware of any claim or interest of the plaintiff over the suit property.
In cross-examination he stated that he was personally involved in the process of transfer of transaction
and insisted that the first defendant is rightfully the second proprietor of the suit property.
He agreed that second defendant had the title deed and obtained official search for the title. When the
suit property was purchased it was an open plot. His family occupies the ground floor of the constructed
structure and denied having any claim against the second defendant.
He reiterated that the sale agreement between his wife and second defendant was entered into after
getting confirmation on the title and thus it was not necessary to involve the third defendant, ie City
Council of Nairobi.
This was the evidence before the court as second or third defendants did not offer any evidence.
It is not in doubt that the plaintiff was an original allottee of Plot number 281 Nairobi/Block 63 along
Jamhuri Estate, Phase II. Similarly, it is also undisputed that the second defendant was the first registered
owner of Nairobi/Block 63/305 and after the initial registration in her name, she sold the same to the first
defendant at a purchase price of KShs 600 000 and her name had been registered as a proprietor of the
suit property on 11 June 2002.
With these undisputable facts, it is contended by the learned counsel of the plaintiff, that as it is not
clear as to how the second defendant acquired the suit property and as there is no evidence from either
second defendant or third defendant that the allotment in favour of the plaintiff of the plot number 281,
was cancelled or revoked, the suit land, therefore, was not available for allocation or transfer to the
second defendant and purported issuance of the lease in her favour and her transfer of the suit land to the
first defendant were therefore null and void.
The plaintiff relied on condition on second page of the letter of allotment, to wit:
“In addition the allottee shall be responsible for payment of development costs, conveyancing, registration
and survey fees and any other charges or costs incidental to this transaction and the same shall be payable on
demand.”

Accordingly, it was further contended, that as no demand was made by the third defendant for
registration, the third defendant had no right over the property. It is on record that he paid planning fees
and survey fees.
The element of fraud was sought to be presumed from the aforesaid facts of purporting to lease the
suit property to the second defendant knowing that the same was already leased to the plaintiff.
Page 309 of [2007] 1 EA 304 (HCK)

The learned counsel relied on case of M’mukanya v M’mbijiwe [1984] KLR 761. In the said case the
issue was of the trespass against the persons who were purported to have been allocated the land which
was initially allocated to another person. It was held that even if the first person was considered to be a
licensee, the notice of any breach was not given and the possession can be presumed on the payment of
rent.
Thus, according to the plaintiff, the registrations of second and first defendants in respect of the suit
property are of no legal consequences.
The submissions were made as regard the provisions of section 143 of Registered Lands Act (Chapter
300) Laws of Kenya.
It stipulates:
“143 (1) Subject to sub-section (2), the court may order rectification of the register directing that any
registration be cancelled or amended where it is satisfied that any registration (other than a first
registration) has been obtained, made or omitted by fraud, or mistake.
(2) The register shall not be rectified so as to affect the title of a proprietor which is in possession
and acquired the land, lease or charge for valuable consideration unless such proprietor had
knowledge of the commission, fraud or mistake in consequences of which the rectification is
sought or caused such omission, fraud or mistake or substantially contributed to it by act,
neglect or default.”

It is contended that the rectification sought is against the first defendant who is not the first registered
proprietor and thus it can be rectified. No explanation, however, was made as regards claim of payment
of valuable consideration without notice of omission, mistake or fraud, or other elements of section
143(2) of the RLA.
Efforts were made to transfer onus of proof of want of fraud or collusion or negligence on the
defendants, by the learned counsel of the plaintiff.
Lastly, it was submitted that even if the first defendant is found to be innocent of any fraud, which
was not conceded, the court still has power to rectify and reliance was placed on the case of Chauhan v
Omagwa [1985] KLR 650.
Court of Appeal found in the said case that:
“Once the court was satisfied that the registration in favour of the appellant was made by fraud by the vendor,
it was authorised by section 143 to order rectification of the register even if the plaint did not disclose a cause
of action against the appellant. It was the registration made by the fraud of the vendor which permitted an
order for rectification to be made by the court.”

However, I do note at page 659, the Court of Appeal observed, namely:

“The transfer of land form shows that the transfers in favour of the appellant was not a first registration; there
was a previous registration in favour of the first defendant which may or may not have been the first
registration. It is only the first registration which may not be attacked even if obtained, made or omitted by
fraud.” [Emphasis mine.]

In the said case the transferor had already disposed of his interest to the respondent as well as to the
appellant and the rectification was allowed to be made unless the appellant could invoke protection of
sub-section (2) of section 143.
In the said case the appellant was not in possession of the land unlike in this case wherein the first
defendant is in possession of the land and has paid valuable consideration. There is no evidence that he
had knowledge of any fraud, omission or mistake as specified in section 143(2) of RLA.
Page 310 of [2007] 1 EA 304 (HCK)

I do not think the facts of the High Court case number 295 of 1976 Emlsa Mutsonga v Njah [1984]
KLR 425 are relevant to the facts of this case. I can only note and adopt that the court in that case held
that allegations of fraud must be strictly proved.
With these submissions, it was further contended that the plaintiff be declared as an owner of the suit
property and that KShs 100 000 be paid to him as general damages for his inconvenience by the joint and
several acts of fraud, collusion and/or trespass by the three defendants.
In the alternative it was urged that second and third defendants be held liable for fraud and collusion
leading to unlawful deprival of plaintiff of the suit land and court to give order to assess market value of
the suit land by a reputable valuer.
The plaintiff also prayed for costs and interest.
The learned counsel for the first defendant after reiterating the pleadings and evidence, argued that the
plaintiff has failed to prove allegation of fraud, collusion and negligence on the part of the first defendant
and relied on the passage on page 439 of the case of Mutsonga v Nyati [1984] KLR 425 wherein the
court relied on several British and Kenyan cases to show that:
“Charges of fraud should not be lightly made or considered. They must be strictly proved and although may
not be so heavy as to require beyond reasonable doubt, something more than a mere balance of probabilities
is required in fact high decree of probability is required. It is very much a question for the trial Judge to
answer.”

It was also observed further that:

“Again it would not be right to answer this issue on the impression any witnesses or part made or his
demeanours alone. It would have to be tested against documentary evidence and their conduct before and
after the event and the probability of the account given by them.”

She also relied on sections 27, 28 and 143 of the Registered Lands Act (Chapter 300 Laws of Kenya) and
stressed that the registration of the first defendant as a proprietor of the suit land and the same can be
rectified, cancelled or amended only where the court is satisfied that any registration (other than the first
registration) has been obtained, made or omitted by fraud or mistake.
It was also emphasised that no entry showing interest of the plaintiff is shown in the certificate of title
as required under section 32(1) of the RLA and that it is also not stated by the plaintiff that the certificate
of title in favour of the second and first defendants was not genuine. The first defendant being a
purchaser for valuable consideration, was not required in any way to enquire or ascertain the
circumstances in which or consideration that a proprietor or any other previous proprietor was registered;
has paid as per provisions of section 39 of the RLA.
It was thus urged that as per the principles laid down in the case of Geila v Cassman Brown and
Company Limited (1973) EACA 358, the plaintiff has failed to prove any of the ingredients added to
enable the court to give orders sought for and even if it is proved that it was the proprietor, then
permanent injunction should not be given, damages being an adequate remedy in this case. This was
submitted relying on the photograph produced by the plaintiff (P exhibit 10) that first defendant has
erected a construction and that the plaintiff has not made any development thereon. The first defendant
having acquired a title on
Page 311 of [2007] 1 EA 304 (HCK)

the land was entitled to the possession and occupation and cannot be treated as a trespasser.
The learned counsel for second and third defendants adopted the submissions made by the learned
counsel for the first defendant.
It was further submitted that the fact of registration cannot be challenged on the basis of the letter of
allotment.
It was contended that the title issued to the second defendant was a first registration and is
indefeasible and the first defendant being a bona fide purchaser for value is also protected under section
143 of the RLA.
The cases of Ambale v Musolia [1986] KLR 241 and Obiero v Opiyo and others [1972] EA 227 were
cited in support of the above contentions.
It was further contended that the letter of allotment is an intention by the Government to allocate land
and the same cannot be used to defeat title of a person who is a registered proprietor of the land. The
cases of Wreck Motor Enterprises v Commissioner of Land and others Nairobi [1997] LLR 546 (CAK)
and High Court case of Lilian Waithera Gachuhi v David Shikuku Mzee High Court civil suit number 10
of 2003 (UR) were cited to support the said submissions.
I have carefully considered the submissions made by all the four counsel and respective authorities
cited by them.
I would reiterate that the facts as evidenced and stipulated hereinbefore is undisputed. The plaintiff
was an allottee of the plot number 281. Although it is not raised by any of the parties, there is no
evidence before me that the said plot was then re-numbered as plot number 305 which is the suit property
and which was first registered in the name of the second defendant and thereafter transferred to the first
defendant without any encumbrances shown thereon. In short, the title documents do not show any
interest claimed by the plaintiff.
The plaintiff has specifically alleged that the suit property was unlawfully registered initially in the
name of the second defendant and thereafter in the name of the first defendant due to fraud, collusion
and/or negligence on the part of the three defendants.
I entirely agree with the submissions made by the counsel for the defendants that the particulars of
those allegations have to be strictly proved and the onus to prove it lies on the party alleging the same
(see Koinange and others v Koinange [1986] KLR 23).
The said principles is trite law of evidence and in this case the burden of proof definitely does not
shift to the defendants.
I respectfully disagree with the plaintiff’s contention that there was fraud or collusion or negligence
on the part of any of the defendants, solely because there is no evidence to even suggest the same.
The second defendant derived a lawful title from the third defendant, which is, in any event,
indefeasible even on the face of fraud and the first defendant was a bona fide purchaser for value without
notice and thus obtained a lawful title in respect of the suit property.
The interest of the plaintiff, even if I do believe the same to be in existence, is an inchoate one and
cannot defeat the registered proprietorship of first and second defendants. Even as per the provisions of
section 143 of the RLA both are entitled to the registration of title in their respective names.
Page 312 of [2007] 1 EA 304 (HCK)

Even if I am wrong on the aforesaid findings, which I hope I am not, the plaintiff has only shown that
he was allotted a plot bearing Land Reference number Nairobi/Block 63/281 and not the suit property
which is Land Reference number Nairobi/Block/305. I do not have any evidence to find that both these
plots are the same.
In the premises I do find that the allocation of the Land Reference number Nairobi/Block 63/281 in
the name of the plaintiff cannot defeat the registered proprietorship of the second defendant and first
defendant, respectively in respect of Land Reference number Nairobi/Block 305.
The plaintiff’s suit fails and is dismissed with costs.
For the appellant:
Information not available
For the respondent:
Information not available

Osero and Company Advocates v Labhsons Limited

[2007] 1 EA 312 (HCK)

Division: High Court of Kenya at Nairobi

Date of judgment: 7 November 2006
Case Number: 160/05
Before: Ochieng and Azangalala JA
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Contempt of court – Conditions that result in contempt of court – Standard and burden of proof in
contempt of court proceedings – Effect of failure of applicant to adhere to procedural requirements.

Editor’s Summary
The respondent had applied for a stay of execution and the court ordered it to file in court a bank
guarantee of KShs 500 000 as a pre-condition to obtaining the said order. The respondent thereafter filed
a letter allegedly from Barclays Bank of Kenya Ltd but this later proved to be a forgery. The applicant
therefore applied for the respondent and Mr Mavinder Singh Sokhi to be cited to be in contempt of court
and to have them fined or committed to jail.
Held – Any person who knowingly procures or causes to be procured a forged document which he then
presents to the court with a view to persuading the court to grant him some orders would be guilty of
contempt for the court. It cannot be over-emphasised that courts are the custodians of law and order.
They are expected to safeguard the legal rights of all persons who appear before them. Therefore, if any
person presents forged documents in court and tries to persuade the court that the said forgeries were the
authentic foundation of his rights, such a person must be deemed to have little or no regard for the
dignity of the court. In the circumstances, whether or not the person presenting the forgeries succeeded in
obtaining the orders he had sought that would be irrelevant to an application against him that he be cited
for contempt of court. In an endeavour to uphold the dignity of the court, such a person would ordinarily
Page 313 of [2007] 1 EA 312 (HCK)

be cited for contempt and then hauled off to serve a jail sentence. It is only by so doing that the court
would be sending a clear message that all persons should at all times not do anything that could lead the
court into disrepute.
The respondent did cause a forged instrument to be filed in court. By doing so, the respondent herein
hoped to persuade the court to issue orders which would have been to its advantage. The act of filing the
forged documents constituted the offence of uttering a false document, provided that it can be proved that
the said action was done knowingly and fraudulently.
By virtue of the provisions of section 5(1) of the Judicature Act, the High Court and the Court of
Appeal shall have power to punish for contempt of court as is for the time being possessed by the High
Court of Justice in England, and that power shall extend to upholding the authority and dignity of
subordinate courts.
The applicant has a duty to satisfy the court that there was a proper and competent application before
it. (Mwangi Wang’ondu v Nairobi City Commission [1988] LLR 1919; Re: Bramblevale Ltd [1970] Ch
128 and Royal Media v Telkom Kenya [2001] 1 EA 210 applied).
As set out in section 5(1) of the Judicature Act, the procedure to be adopted must be that utilised by
the High Court of Justice in England. For that reason, the court has to look to the Supreme Court
Practice. Pursuant to the provisions of Order LII, rule 3(2) of the Civil Procedure Rules applicable in
England, leave to apply for an order for committal would lapse automatically, unless within 14 days after
such leave has been granted, the substantive motion has been entered for hearing. In the case, the
applicant stated that he had been granted leave by the court on 7 February 2006. Thereafter, the
substantive motion was filed on 25 March 2006. In effect the substantive motion was filed long after
leave to do so had lapsed.
The applicant has not complied strictly with the procedural requirements. Therefore, although the
respondents would appear to have conducted themselves in such a manner as would bring the court into
disrepute by procuring and filing forged guarantees, the application for their citation and committal
cannot be sustained. (Ian Leslie Campbell and another v Canadian Hunger Foundation civil application
number Nairobi 56 of 1994 and Nyamodi Ochieng Nyamogo and another v Kenya Posts and
Telecommunications Corporation civil application number Nairobi 264 of 1993 applied).

Cases referred to in ruling

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Mwangi Wang’ondu v Nairobi City Commission [1988] LLR 1919 – AP
Royal Media v Telkom Kenya [2001] 1 EA 210 – AP
Ian Leslie Campbell and another v Canadian Hunger Foundation civil application number Nairobi 56 of
1994 – AP
Nyamodi Ochieng Nyamogo and another v Kenya Posts and Telecommunications Corporation civil
application number Nairobi 264 of 1993 – AP
Page 314 of [2007] 1 EA 312 (HCK)

United Kingdom
Re: Bramblevale Ltd [1970] Ch 128 – AP

Ruling
Ochieng and Azangalala JA: On 13 October 2005, the applicant, Messrs Osero and Company
Advocates, moved this Court by way of a notice of motion, pursuant to the provisions of Order XXIX,
rule 4; Order XIV, rule 1 of the Civil Procedure Rules; as read together with section 3A of the Civil
Procedure Act. By this application the applicant sought the discharge of the temporary orders for stay of
execution, which were issued on 26 August 2005, pending the hearing and determination of substantive
application to set aside the taxation.
It is also the applicant’s prayer, in this application, (dated 13 October 2005) that the orders of 26
August 2005 be reviewed, so that the applicant may be able to proceed with the execution process.
The application is supported by the affidavit of Mr Lewis Ndemo Osero.
The application first came up for hearing on 13 October 2005, before me. On that day, I did certify the
application as urgent, but declined to give any ex parte orders. Instead, I directed that the application be
heard on 18 October 2005.
When the matter came up on 18 October 2005, the applicant was absent from court. And, whilst the
respondent’s advocate was present in court, he informed the court that the application itself had not yet
been served upon him. Consequently, I did adjourn the matter indefinitely.
Thereafter, the respondent, Labhsons Limited, caused its application dated 22 August 2005, to be
listed for hearing on 3 November 2005. The court’s ruling on that application has some significance on
the matter now before me.
In his ruling, the Honourable Waweru J indicated that on 3 November 2005, the advocate (who is the
applicant herein) sought an adjournment. However, the court declined the plea for adjournment. He then
noted that on 26 August 2005, I had ordered that there be a stay of execution. I had also ordered that the
attached goods be released to the respondent (who was the applicant’s client), provided that the
respondent executed a bank guarantee for KShs 500 000.
The Honourable Waweru J noted, from the court records, that the advocate had challenged the bank
guarantee which had been filed by his client, on the grounds that the said bank guarantee was a patent
forgery. Indeed, the advocate had filed this application, seeking a review of the orders made on 26
August 2005.
In those circumstances, the Honourable Waweru J held as follows:
“If it turns out that the client filed a forged guarantee, it will have committed a serious fraud upon the court
and will be in grave contempt of the court. This will not only disentitle it to the equitable orders by Ochieng J
on 26 August 2005, but will also make it liable to severe penal sanctions. It is therefore of great concern to
the court that the pending application by notice of motion dated 13 October 2005 be disposed of first, lest the
client do continue to enjoy the orders of 26 August 2005 that it would otherwise not be entitled to, and
possibly get further benefit from the present application even after possibly committing a fraud on and
contempt of court.”
Page 315 of [2007] 1 EA 312 (HCK)

For those reasons, the court directed that the application dated 22 August 2005 be held in abeyance
pending the disposal of this application dated 13 October 2005. The court also directed that the
proceedings of 3 November 2005, at which the client presented the application dated 22 August 2005, be
set aside.
From the foregoing, it is manifestly clear that the court takes a very serious view of the assertions that
the client may have presented forged documents.
Now, when the application came up for hearing, on 17 January 2006, the applicant notified the court
that it was abandoning prayers 2 and 3 of the application dated 13 October 2005. In order to facilitate a
better understanding of the application, I find it necessary to now set out the orders sought, which are as
follows:
“(1) That this application is urgent and service thereof be dispensed with in the first instance.
(2) That the Honourable Court do forthwith vacate/discharge the temporary orders for stay of execution as
issued on 26 August 2005, pending hearing and determination of this application.
(3) That the Honourable Court be pleased to review the said orders of 26 August 2005 and the applicant
be granted leave to proceed with the Execution of the consent decree herein.
(4) That the Honourable court does make such other orders as it may deem fit taking into account the
circumstances of the matter.
(5) That costs of this application be provided for.”

First and foremost, it is evident that prayer numbered 1 had already been disposed of by the court, when
the matter was certified urgent, and then the applicant was directed to serve it upon the respondent.
Following the applicant’s decision to now abandon the prayers for the discharge of the temporary
orders for stay of execution dated 26 August 2005, as well as the orders seeking a review of the said
orders of 26 August 2005, the only orders then left in the application were for the grant of such orders as
the court may deem fit in the circumstances.
In my understanding, the applicant did abandon the only two substantive prayers it was seeking. I say
so because, in my view, if an applicant asked the court for nothing more than “such orders as the court
may deem appropriate”, the said applicant would certainly be deemed to be very vague. It is the kind of
prayer which the respondent thereto may find very difficult to respond to, as he would not be in a
position to know what exactly the applicant was seeking.
In this case, the applicant explained that he had decided to abandon the two substantive prayers
because of the views expressed by the Honourable Waweru J on the issue of contempt of court.
I have already set out herein the pertinent parts of the ruling by the Honourable Waweru J which was
made on 9 December 2005. To my mind, the views were more likely than not to encourage the applicant
to pursue the application dated 13 October 2005. I therefore do not understand why the applicant opted to
abandon the substantive prayers in his application.
The applicant then pointed out that on 26 August 2005, this Court did grant a stay of execution, of
which order was to take effect upon the provision, by the respondent, of a bank guarantee for
KShs 500 000.
Page 316 of [2007] 1 EA 312 (HCK)

Pursuant to the court order of 26 August 2005, the respondent obtained a document dated 19
September 2005, which was headed “Bank Guarantee.” The said document had, on the face of it been
executed by the Manager and the Accountant of Barclays Bank of Kenya Limited, Karen Branch.
Immediately upon receipt of the purported bank guarantee, Mr Lewis Osero, Advocate, talked to
Messrs Patrick Kamau and Cyrus Mwangi, who were the branch manager and customer service manager
at Barclays Bank, Karen Branch. The two bank officials disowned the purported bank guarantee.
Consequently, the applicant wrote to the bank, on 20 September 2005, drawing its attention to the
telephone discussions which Mr Osero had had with the two bank officials. The said letter was copied to
the court, as well as to the advocates for the respondent herein.
By the said letter, of 20 September 2005, the applicant informed the bank that the incident of the
“forged bank guarantee” had been reported at the Central Police Station.
Thereafter, Barclays Africa Security and Investigative Services issued an undated memo, which was
addressed to Mr Chris Akiwumi, the senior legal counsel at Barclays. By that memo, the Head of
Security and Investigations at Barclays Bank, Mr GA Otieno, indicated as follows:
“We have looked at the Guarantee in question and confirm that it did not originate from BBK Karen branch.
The letter head fonts are totally different from the official letter head template fonts in use at BBK Karen.”

The memo also highlighted the specific differences in (i) the fonts used; (ii) the position of the address,
in the letter head; and (iii) the absence of the eagle on the forged document. It also made it clear that
Barclays Bank did not have any manager by the name Joseph Mwaniki, who had allegedly issued the
forged document.
When faced with all this information, Mr Manvinder Singh Sokhi, who is a director of the respondent
sought to explain that he had not knowingly set out to abuse the process of this Court by filing false
documents, with a view to misleading the court. He asserts that he was cheated to believe that the forged
bank guarantee was authentic.
But the applicant feels that the explanations tendered by the respondent were too far-fetched to be
true. The applicant expressed the view that the respondent must have knowingly been involved in
obtaining the forged guarantee. He therefore asked this Court to compel Mr Manvinder Singh Sokhi to
present himself in court, for purposes of cross-examination.
In answer to that application, the respondent said that it was very strange; as it was neither a dog nor a
cat. In the respondent’s considered view, the applicant had not moved the court appropriately, if its
intention was to slap the respondent with contempt proceedings.
I must say that on that score, I am in agreement with the respondent. The main reason for that is that,
(as I had already indicated herein) the applicant has already withdrawn the only two substantive prayers
which had remained in his application. However, even if the said prayers had not been abandoned, I hold
the view that the applicant had failed to pay heed to any of the rules and regulations which govern the
process of proceedings for contempt of court.
Page 317 of [2007] 1 EA 312 (HCK)

In the circumstances, I find that the applicant’s application for the cross-examination of Mr
Manvinder Singh Sokhi, is not likely to be of any legal benefit in this application, as it cannot be utilised
by the court to mete out appropriate penal sanctions. I therefore decline to compel Mr Manvinder Singh
Sokhi to attend court for cross-examination.
In the same vein, as the applicant had already abandoned all the substantive prayers in the application
dated 13 October 2005, all that remained was a shell. It cannot form the basis for any further orders.
Accordingly, the application is hereby dismissed with costs.
However, I do hereby expressly hold that the dismissal of this application is not a bar to the applicant
bringing an appropriate application which might, if proved to the satisfaction of the court, enable the
court to stamp its authority, by ensuring that its orders are given recognition by being honoured until and
unless they are set aside, discharged, varied or reviewed.
Finally, I do hereby direct the court broker who had attached the applicant’s goods to file in court,
within the next seven (7) days, a report on the status of the execution process. The said report should
include information about the particulars of all the goods attached; the identity of the location at which
the goods are being held; the cost of the storage to date as well as the rate at which the storage charges
continue to be levied; and the auctioneer’s charges. Copies of the said report should thereafter be served
upon both the parties.
In my considered view the information from the court broker will hereafter enable the court to make
more informed decisions, in the best interests of both parties.
For the appellant:
Information not available
For the respondent:
Information not available

Palmer v Palmer and another

[2007] 1 EA 317 (CAU)

Division: Court of Appeal of Uganda at Kampala

Date of judgment: 4 April 2007
Case Number: 33/06
Before: Kikonyogo DCJ, Twinomujuni and Kitumba JJA
Sourced by: LawAfrica
Summarised by: E Dimba

[1] Guardianship – Appointment of guardians – Sections 5, 19(b) and 43 of the Children’s Act –
Sections 14, 32 and 39 of the Judicature Act 2000 – Whether the Children’s Act 1997 ousted the original
jurisdiction of the High Court – Care order obtained unprocedurally – Whether lapse detrimental to
application – Welfare principle and the essence of time in children’s matters – Whether appellants
should be granted guardianship of the infants.

Editor’s Summary
The appellants applied to the High Court for guardianship of the first infant after his mother disappeared
immediately after delivery. Their application was
Page 318 of [2007] 1 EA 317 (CAU)

dismissed on grounds that the care order (“the Care Order”) by the Family and Children’s Court was not
obtained in accordance with the Care Placement Rules (“the Rules”) under the second Schedule to the
Children’s Act whereupon they lodged an appeal to the Court of Appeal.
The second infant too lost his mother soon after delivery and no relatives or guardian or friend of the
family claimed him. The appellants lodged an application for the second infant’s legal guardianship
whereupon the High Court dismissed the same for basing it on defective care order (“the Care Order”)
which was not obtained in compliance with the Rules. An appeal was consequently lodged in the Court
of Appeal.
Held – Rule 5 of the Foster Care Placement Rules sets out the persons who are qualified to foster
children. Under the said rule, a non-Ugandan citizen would only qualify to be a foster parent if resident
in Uganda. The appellants were non-Ugandan citizens and non-residents. Consequently, they would not
qualify to be foster parents.
The appellants failed to comply with the requirements of section 27 of the Children’s Act. The
appellant also had to but failed to comply with the provision of section 57 thereof on admission of
children into homes. The care orders were therefore not obtained in accordance with the law.
An illegal court order is a nullity and the court cannot sanction what is illegal. (Mukula International
Limited v His Eminence Cardinal Nsubuga and another [1982] HCB 11 adopted). The trial Judge was
justified to look into the propriety of the procedures undertaken in obtaining the care orders and acting
upon his finding in the matter.
The failure to obtain the care orders from the Family and Children’s Court was not detrimental to the
applications for guardianship. Even if the care orders were essential, the blame for the defects or
omissions or the flouting of the law is at the door of the authorised persons but not that of the appellants.
Dismissing the applications for mistake of a District Probation and Social Welfare Officer would be
visiting those mistakes on the appellants. Article 126(2)(e) of the Constitution enjoins courts of law to
administer substantive justice without due regard to technicalities.
As the first Appellate Court, the Court of Appeal had a duty to reconsider and evaluate the evidence
and come to its own decision subjecting the evidence to a fresh and exhaustive scrutiny. (Pandya v R
[1957] EA 336, James Nsibambi v Lovinsa Nankya [1990] HCB 81 and Salle v Associate Motor Boat
Company Limited [1968] EA 123 adopted).
The law confers on court’s, jurisdiction to appoint guardians of infants where circumstances so
warrant. Prior to amendment of the Judicature Act 1967, the powers to grant guardianship were rested in
the High Court by section 9(a) of the Act. The provision of section 9(a) of the Judicature Act 1967 were
not reproduced in the Judicature Statute 1996 in terms of the form in the 1967 Act.
The main law concerning children is contained in the Children’s Act of 1997 which consolidated the
customary law best practices, common law and international law on the treatment and welfare of
children. The Children’s Act did not oust the original jurisdiction of the High Court in all matters relating
to children, including guardianship.
Page 319 of [2007] 1 EA 317 (CAU)
Apart from section 5 of the Children’s Act which introduced the concept of de facto guardianship for
all those people lawfully having custody of the children without legal guardianship orders, the Act does
not provide the procedure of obtaining the status of legal guardianship. Guardianship appears to be wider
than foster placement.
There is no provision in the Children’s Act which confers exclusive jurisdiction of matters relating to
guardianship of children to the Family Court. The provisions of section 9 of the Judicature Act 1967
were saved by and incorporated in subsequent enactments under section 16, 35 and 41 of the Judicature
Statute 1996 and reproduced in the revised Judicature Act 2000 under sections 14, 32 and 39 thereof.
Article 139 of the Constitution confers on the High Court unlimited original jurisdiction. Under
section 98 of the Civil Procedures Act, the High Court may invoke its inherent powers to grant remedies
where there are no specific provisions or in appropriate cases. It can also apply common law and equity.
The High Court has jurisdiction to entertain applications for guardianship orders. The appellants’
applications for guardianship orders were hence properly filed in the High Court by way of notice of
motion. The applications for guardianship were not an interlocutory matter and as such the evidence
adduced which was all by affidavit had to be confined to facts within the knowledge of the deponents.
The affidavits thus were to be devoid of matters based on the deponents’ information and belief.
The vulnerability or disability of an infant and his legal incapacity to manage his affairs renders it
essential to give him protection of his person and other interest especially property, hence the need for
the appointment of a guardian ad litem.
The first and second infant (“the Infants”) were not only abandoned soon after birth by their
biological mothers who are unknown. No relative or friend of their family came forward to take them
home and care for them. They had to be institutionalised in a children’s home.
The appellants who were non-Ugandan citizens were ready and willing to provide the Infants with a
home that is ideal. Staying in a children’s home was not the best as the Infants could not possibly get all
the individual attention and parental care they would have had in a family. Non-citizenship per se is not a
bar to obtaining guardianship orders in relation to Ugandan children.
Section 46 of the Children’s Act permits adoption by foreigners in special circumstances and on
conditions stated thereunder. By analogy it is also possible for non-Uganda citizens to obtain
guardianship orders in respect of Ugandan minors.
Guardianship of the Infants granted to the appellants. (In the Matter of an Application for
Guardianship by René Kampmeyer miscellaneous application number 15 of 1992 applied).
Per Twinomujuni JA – A guardian is a person other than a parent who has parental responsibility for a
child. Parental responsibility means rights, duties, powers, responsibilities and authority which by law a
parent of a child has in relation to a child. Where the child has no biological parents or adoptive parents
then a foster parent is the guardian because a foster parent is a person
Page 320 of [2007] 1 EA 317 (CAU)
not being the biological mother, father or relative to the child who assumes parental responsibility of the
child by way of care order.
Where a child has neither parents nor relatives and is placed in custody of a foster parent by way of a
care order, that foster parent becomes the legal guardian of the child. The jurisdiction to grant
guardianship is placed on the Family and Children’s Court on the application of the Probation and Social
Welfare Officer or any other authorised person under section 19(b) of the Children’s Act.
Section 43 of the Children’s Act provides for an alternative method of creating guardianship where
the child has already been placed in the custody of an approved home:
It is the Children’s Court which has the jurisdiction to appoint an approved home or a foster parent as guardian for
the child on the application of:

(i) a District Probation and Social Welfare Officer; or

(ii) an authorised person;
where the child has already been placed in an approved home in accordance with the Act, then the:
(i) probation and social welfare officer; or
(ii) an authorised officer.
In conjunction with the warden of the approved home may place the child under the guardianship of a
foster parent. [Emphasis added.]
The High Court does not have jurisdiction to guardianship under the Children’s Act. Once the
Probation and Social Welfare Officer and the Warden of the approved home apply for and obtain a care
order from the Family and Children’s Court, the home as the foster parent automatically becomes the
legal guardian of the child and it is not necessary to apply to the High Court for the same thing. In fact
the High Court has no jurisdiction to entertain such an application, as it has no jurisdiction to grant
guardianship under the Act.
Under the Children’s Act 1996, the High Court only has jurisdiction on matters of adoption and
appeals vide sections 44 and 105, respectively. All other matters under the Act are left under the
jurisdiction of subordinate courts.
The provisions of article 139 of the Constitution does not give the High Court such jurisdiction. Once
a competent court subordinate to the High Court properly entertains a matter it cannot be entertained by
the High Court on plaint or notice of motion. The matter could only go to the High Court on appeal. The
entire proceedings before the High Court were therefore a nullity.
Even assuming that the High Court had jurisdiction to entertain the appellants’ applications, it was a
serious error to dismiss the application without consideration of the welfare principle and the essence of
the time factor.
Even assuming that the care order of the Infants was granted irregularly the trial Judge was in error to
nullify the proceeding without determining what effect such an order would have had on the Infants.
In giving due weight to the paramountcy of the welfare principle and the essence of time when dealing
with children’s matters, the court will in certain cases disregard certain procedures laid down in the
Children’s Act in order to protect the welfare of the child.
Page 321 of [2007] 1 EA 317 (CAU)
The High Court neglected the welfare principle and the judgment of the trial court should not be
allowed to stand despite any irregularity that might have preceded the grant of guardianship by the
Family and Children’s Court.
Despite some possible irregularities in the application forms or procedures, it would be legitimate for
a Children’s Court to ignore them in order to give full effect to the welfare principle and the essence of
time consideration. The rules and procedures laid down in the Act give guidance to anyone dealing with
children’s matters but they are not cast in stone. They must always be construed in such way as to give
effect to the paramountcy of the child welfare principle.
Kitumba JA Dissenting – No Act of parliament can take away the jurisdiction of the High Court which
is provided in section 139 of the Constitution. (NPART v Kagadu Enterprises Limited civil appeal
number 26 of 1998 applied).
Substantive justice referred to in article 126(2)(e) of the Constitution is not a license to disregard the
law or rules of procedure. (Kasirye Byaruhunga and Company Advocates v Uganda Development Bank
civil appeal number 2 of 1997 (SC) applied).
The care order and whole procedure of obtaining it was riddled with irregularities.
There was neither significant harm nor danger that necessitated the removal of the Infants from the
orphanage illegally. It did not warrant the Family and Children’s Court to make a care order without
following the rules stipulated in the Children’s Act.
The trial Judge correctly found that the provisions of the law relating to the care orders were not
followed.
The welfare of the child differs from child to child as the circumstances warrant. It would have been
in the best interest and welfare of the Infants that possibilities of their placement be first looked for
within the country.
By consideration the welfare and best interest of the child, the court should not ignore all the legal
procedures and rules. (Makula International Limited v His Eminence Cardinal Nsubunga and another
[1982] HCB 11 followed).
Appeal allowed.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
In the Matter of an Application for Guardianship by René Kampmeyer miscellaneous application number
15 of 1992 – AP
Kahumbu v National Bank of Kenya Limited [2003] 2 EA 475
Kasirye Byaruhunga and Company Advocates v Uganda Development Bank civil appeal number 2 of
1997 (SC) – AP
Mukula International Limited v His Eminence Cardinal Nsubuga and another [1982] HCB 11 – A
NPART v Kagadu Enterprises Limited civil appeal number 26 of 1998 – AP
Page 322 of [2007] 1 EA 317 (CAU)

Pandya v R [1957] EA 336 – AD

Salle v Associate Motor Boat Company Limited [1968] EA 123 – AD

United Kingdom
James Nsibambi v Lovinsa Nankya [1990] HCB 81 – AD
Makula International Limited v His Eminance Cardinal Nsubunga and another [1982] HCB 11 – F
Nsibambi v Lovinsa Nankya [1990] HCB 81
Re Jane Namukasa an infant in the matter of an application by Mr and Mrs Stefano and Silvia Lemon
High Court miscellaneous application number 78 of 1991 [1992-1993] HCB 200

Judgment
Kikonyogo DCJ: Both appeals mentioned above are brought against the rulings and the orders of the
High Court sitting at Kampala, delivered on 22 March 2006 in ex parte applications in Family Causes
number 15 and number 15 of 2006.
The background of civil appeal number 33 of 2006 is that, a baby, later named Howard Amani Little,
hereafter to be referred to as the first infant was born on or about 13 August 2005 in ward 5AA Annex
Mulago Hospital. His mother disappeared from the ward immediately after the delivery. The medical
social worker of the hospital was, on 5 September 2005, forced to refer the infant to Amani Baby
Cottage, a babies home in Jinja. That is where the infant was named Howard Little.
Later the appellants, a couple, Mr Kevin Little and Mrs Rebecca Little, both citizens of USA heard
about the infant, developed interest and affection and desired to adopt him as their own child. They
approached the Probation and Social Welfare Officer in Jinja and put in an application for fostering the
infant. Later, on 25 October 2005, they were granted a care order in respect of the infant by the Family
and Children’s Court, Jinja.
Desirous of taking the infant with them back home, to USA, the appellants applied to the High Court
for guardianship of the infant. Their application was dismissed on the ground that the care order by the
Family and Children’s Court relied on as one of the documents was not obtained in accordance with the
Care Placement Rules under the second schedule to the Children’s Act. The appellants aggrieved by the
decision of the High Court, instructed their learned counsel, Ms Betty Munabi to lodge this appeal to this
Court.
This Court, on the same day, heard civil appeal number 32 of 2006 based on similar facts and same
grounds, dismissed by the same court at the same time and date. The appellants, were also a couple, Mr
Noel Adam Palmer and Mrs Michelle Louise Palmer, citizens of USA. The infant is Francis Palmer who
we shall refer to as the second infant. He, too, lost his mother soon after birth at Mulago Hospital and no
relative or guardian or friend of the family claimed him. He was, therefore, also taken to Amani Cottage
Babies Home, Jinja. On 4 November 2005, he was committed to the care of the appellants by the same
Family and Children’s Court sitting at Jinja. Subsequently, the appellants also lodged an application to
the High Court for legal guardianship so that, they too, could travel with the infant back home to USA.
Page 323 of [2007] 1 EA 317 (CAU)

Their application was dismissed for basing it on a defective care order which was not obtained in
compliance with the relevant rules (supra). They, too, lodged an appeal to this Court through the same
counsel, Ms Betty Munabi. For convenience, I propose to take both appeals together.
Both appeals were based on the following three grounds:
(1) The learned trial Judge erred in law when he dismissed the applications without considering them
on their merits.
(2) The learned trial Judge erred in law or fact in finding that the Probation and Social Welfare Officer
flouted the rules relating to obtaining the care order being one of the documents relied upon in the
application for legal guardianship.
(3) The learned trial Judge erred in law and fact in dismissing the application without considering the
welfare and best interest of the child.
In both appeals, which were also ex parte, counsel argued the three grounds separately, but starting with
one, three and lastly two. However, I propose to consider ground two first, followed by grounds one and
three together in the light of the overlap of issues therein.
With regard to ground two, it is argued for the appellants that the learned trial Judge wrongly found
that the Probation and Social Welfare Officer flouted the rules of procedure relating to obtaining of a
care order. The learned trial Judge found that the care orders were not obtained in accordance with the
provisions of sections 27, 28 and 43 of the Children’s Act and the Foster Care Placement Rules
(Schedule 2 to the Act). Counsel submitted, at page 10 paragraph 28 of the written submissions, that the
appellants made applications to foster the children, with the Probation and Social Welfare Officer in
Jinja, which was followed by subsequent applications by the Probation and Social Welfare Officer to the
Family and Children’s Court, Jinja. However, section 43 of the Children’s Act reads as follows:
“Conditions for foster care placements:
(1) Where a child has been committed to an approved home under a care order, the District Probation and
Social Welfare Officer, in conjunction with the warden of the approved home, may place the child
with a person who is willing to undertake the care and maintenance of the child in this part referred to
as a ‘foster parent’.
(2) An application to foster a child shall be made to the District Probation and Social Welfare Officer,
except that a relative of a child without a parent or guardian may foster the child without first applying
to the District Probation and Social Welfare Officer and this part shall not apply to him or her.
(3) A foster parent in whose care a child is committed shall, while the child remains in his or her care have
the same responsibilities in respect of the child’s maintenance as if he or she were the parent of the
child.”

Additionally, rule 5 of the Foster Care Placement Rules sets out the persons who are qualified to foster
children. Under the said rule, a non-Ugandan citizen would only qualify to be a foster parent if resident
in Uganda. It is not a contested fact that the applicants in the instant appeals are non-Ugandan citizens
and non-resident. Consequently, they would not qualify to be foster parents.
The learned trial Judge also ruled that he found no evidence on record to show that the requirements
of section 27 of the Children’s Act, were complied
Page 324 of [2007] 1 EA 317 (CAU)

with. Counsel contested this finding but I am not drawn to evidence on the basis of which to fault the
learned trial Judge’s finding. I do also note the relevance of section 57 of the Children’s Act on
admission of children homes, which had to be complied with. Section 57 provides that:
“An approved home shall only receive children in the following two ways:
(a) In an emergency situation from a policy, a probation and social welfare officer or any other person for
a maximum period of forty eight hours pending production of the child in court;
or
(b) on an interim care order or a care order.”

In the result, I find no evidence to fault the learned trial Judge’s ruling that the care orders were not
obtained in accordance with the law. I shall now turn to grounds one and three jointly. Ground two must,
hence, fail.
On ground one, counsel contended that the learned trial Judge erred in law when he dismissed the
applications without considering them on merit.
In arguing that ground, counsel criticised the learned trial Judge for dismissing the applications on
what counsel referred to as a technicality and for looking into the procedures applied in obtaining the
care orders.
Counsel argued that the care orders having been granted and not set aside. The trial Judge could not
question the propriety of the procedures undertaken in obtaining them. Counsel relied on the case of
Kahumbu v National Bank of Kenya Limited [2003] 2 EA 475 at page 479 in which it was held that a
court order is valid and binding unless and until it is appealed against, amended or set aside. However,
according to the decision in the case of Makula International Limited v His Eminence Cardinal Nsubuga
and another [1982] HCB 11, an illegal court order is a nullity and the court cannot sanction what is
illegal. I am persuaded by the latter case and thus find that the learned trial Judge was justified to look
into the propriety of the procedures undertaken in obtaining the care orders and acting upon his finding in
the matter. On the record before Court, the applications must have failed on.
Still under ground one, counsel submitted that the learned trial Judge did not consider the substance of
the evidence supporting the applications as laid out in the applicants’ affidavits. This submission
overlaps with ground three, wherein counsel contended that the learned trial Judge erred in law and in
fact in dismissing the applications without considering the welfare and best interests of the children. She
argued that even if the care orders were defective, the learned trial Judge should have overlooked the
defects and proceeded with the rest of the supporting evidence of the applications. He should have paid
particular attention to the best interest of the children.
To the learned trial Judge, having dismissed the applications for non-compliance with the relevant
provisions of the Children’s Act, there was no point for him to consider the best interest of the children.
However, as it was rightly submitted by counsel, the learned trial Judge should not have dismissed the
applications. He should have instead set them down for hearing on merit. I shall come back to that as this
issue overlaps with the third issue which I am considering next.
The complaint under the third and last issue is more or less the same as that which arose in the first
two. Specifically, it is argued for the appellants that the
Page 325 of [2007] 1 EA 317 (CAU)

learned trial Judge wrongly found that the Probation and Social Welfare Officer flouted the rules of
procedure relating to the obtaining of a care order. On the construction of sections 27, 28 and 43 of the
Children’s Act and the relevant rules of the Foster Care Placement Rules I am of the view that the failure
to obtain care orders from the Family and Children’s Court was not detrimental to the applications for
guardianship. The appellants had already had the placements from the Probation and Social Welfare
Officer and Warden of the Amani Baby Cottage. It was, hence, necessary for the trial court to investigate,
further, but not only rely on the record.
Further, with regard to the applications for the care orders, even if they were essential, the blame for
the defects or omissions or the flouting of the law is at the door of the authorised persons but not that of
the appellants. Dismissing the applications for mistakes of the District Probation and Social Welfare
Officers would be visiting those mistakes on the appellants. As it was rightly submitted by counsel for
the appellants, article 126(2)(e) of the Constitution enjoins the courts of law to administer substantive
justice without undue regard to technicalities. In the premises I would allow this ground.
As the first Appellate Court, I will now proceed to appraise the evidence on record to decide the
appellants’ applications for guardianship on merit. The duty of a first Appellate Court is now well
settled. It is to reconsider and evaluate the evidence and come to its own decisions. In so doing, it should
subject the evidence to a fresh and exhaustive scrutiny. (See Pandya v Republic [1957] EA 336; James
Nsibambi v Lovinsa Nankya [1990] HCB 81 and Salle v Associate Motor Boat Company 1968 EA 123).
Rule 30(1) of the rules of the Judicature (Court of Appeal Rules) Directions reads as follows:
“On any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court
may:
(a) appraise the evidence and draw inferences of fact.”

In accordance with the holding of Sir Clement VP in Salle v Associate Motor Boat Company (supra) at
page 126, the first Appellate Court should note the following:
“Briefly they are that this Court must reconsider the evidence, evaluate itself and draw its own conclusions
though it should always bear in mind that it had neither seen nor heard the witnesses and should make
allowance in this respect. In particular the court is not bound unnecessarily to follow the trial Judge’s findings
of fact if it appears either that he has clearly failed on some point to take account of particular circumstances
or probabilities materially to estimate the evidence or if the impression based on the demeanour of witness is
inconsistent with the evidence in the case generally.”

On the appellants’ applications, the law, clearly, confers on courts, jurisdiction to appoint guardians of
infants where circumstances warrant so.
Prior to the amendment of the Judicature Act 1967, the powers to grant guardianship were vested in
the High Court by section 9(a) of the Act which provided as follows:
“The High Court shall have powers to appoint and control:
(a) Guardians of infants and the estates of infants;
(b) Keepers of persons and estates of idiots, lunatics and persons of unsound mind who are unable to
govern themselves and their estates.”
Page 326 of [2007] 1 EA 317 (CAU)

The above provisions were not reproduced in the Judicature Statute 1996 in that form. The pertinent
question to ask is who, after the enactment of the Children’s Act which came into force in 1997, has
jurisdiction to grant guardianship orders in respect of children?
As rightly pointed out by my learned brother, Twinomujuni JA in his judgment, the main law
concerning children is contained in the Children’s Act of 1997. It consolidated the customary law best
practices, common law and international law on the treatment and welfare of children.
However, with the greatest respect, I do not agree with the view which holds that the Children’s Act
ousted the original jurisdiction of the High Court in all matters relating to children including
guardianship. In my view, although fostering overlaps with guardianship, in comparison to foster
placement and adoption, the procedure for obtaining guardianship is not very rigorous and there are no
strict procedures. Apart from section 5 of The Children’s Act which introduces the concept of de facto
guardianship, for all those people lawfully having custody of the children without legal guardianship
orders, the Act does not provide the procedure of obtaining the status of legal guardianship. Besides,
guardianship appears to be wider than foster placement. That possibly explains why it is an easy option
for those applicants who do not qualify for adoption or who wish to avoid strict requirements of
adoption, to seek guardianship.
On perusal of the Children’s Act, I was not able to find any provision which conferred exclusive
jurisdiction of matters relating to guardianship of children to the Family Court under the Children’s Act.
According to my interpretation of the law of this country, in my view the provisions of section 9 of the
Judicature Act 1967 were saved by and incorporated in the subsequent enactments, under sections 16, 35
and 41 of the Judicature Statute 1996, and reproduced in the revised Judicature Act 2000, under sections
14, 32 and 39 of the said Act. Further, article 139 of the Constitution confers to the High Court unlimited
original jurisdiction. Additionally, under section 98 of the Civil Procedure Act, the High Court may
invoke its inherent powers to grant remedies where there are no specific provisions or inappropriate
cases. It can also apply common law and equity as can be seen in the chapter on Family Law in
Halsbury’s Laws of England paragraph 533 (4ed) which reads as follows:
“The High Court may appoint a guardian of a minor where (1) the proposed guardian applies for such
appointment and the minor has no parent or guardian of his person and there is no, other person having
parental rights with respect to and other instances.”

As far as I am concerned the High Court has jurisdiction to entertain applications for guardianship
orders. The appellants’ applications for guardianship orders were, hence, properly filed in the High Court
by way of notice of motion. Having settled the issue of jurisdiction, I will next proceed to evaluate the
evidence before court to determine the appellants’ applications on merit.
It is not disputed that the applications are based mainly on affidavit evidence sworn by the appellants
themselves. On examination of the averments contained therein, the court must exercise caution before
acting upon it. The law with regard to the contents of admissible affidavits is set out in Order 19, rule 3
of the Civil Procedure Rules which provides as follows:
Page 327 of [2007] 1 EA 317 (CAU)
“Affidavits shall be confined to such, facts as the deponent is able of his own knowledge to prove, except on
interlocutory applications statements of his belief may be admitted which the grounds thereof are stated.”

The applications for guardianship were, clearly, not an interlocutory matter and as such the evidence
adduced, which was all by affidavit had to be confined to facts within the knowledge of the deponents.
The affidavits must, thus, be devoid of matters based on the deponents’ information and belief.
In light of the above, I agree that the affidavits comprising the evidence in Family Cause number 14 of
2006 and Family Cause number 15 of 2006 and the Adoptive Home Study Report/Resource Family
Assessment annexed thereto, cannot form the sole basis of this Court’s decision in the appeals.
This Court, however, in its wisdom and noting that the proceedings were brought ex parte, asked Mr
HW I Otim, Commissioner for Youth and Children in the Ministry of Gender, Labour and Social
Development, to furnish it with a report relating to fostering children, with particular reference to the
appellants’ applications for guardianship before court. On perusal of the report submitted by Mr Otim, I
find that it has satisfactorily covered the concerns, of this Court, as indicated in the conclusion which
reads as follows:
“After visiting the Children’s Home (sic) in Jinja (sic) to the Probation Officer and the Administrator of
Amani Babies Cottage (sic), I did not discover anything unusual. The case of the two children seem to have
been handled in accordance with the law and taking the principal (sic) of the best interest of the child, the
children are likely to gain than if they remained here. Similar cases have already been handled by the High
Court of Uganda and the children are already in the USA doing well from the annual reports on the progress
of the children sent back to the Probation Officer Jinja. The American Government has very stringent
regulations regarding admission of children into the US. It is still possible to follow the children through our
embassy in the US. Some of the information provided in this report could be verified with the American
Embassy.”

Additionally, Mr Otim annexed other relevant documentary evidence including statistics and other
information.
Further, during the hearing, Rebeca Little, one of the appellants in civil appeal number 33 of 2006,
told Court that she and her husband, did not have biological children on medical grounds. They therefore,
decided to adopt one. They also wanted to assist the first infant as he was in need of care.
I also had the opportunity of observing Rebecca and the first infant when she came with him to the
court. I noticed that they were fond of each other. The first infant, who had been in her care for the last
one year looked healthy and cared for. This explains Rebecca’s intimation to this Court that the infant is
so attached to her that he does not want to stay with any other person except herself.
On the record before court I am satisfied that there is merit in the applications. Clearly, for reasons
not hard to find, the orders sought are essential for the welfare of the infants and would be in their best
interest.
Firstly, the vulnerability or disability of an infant and his legal incapacity to manage his affairs
renders it essential to give him protection of his person and other interests especially property, hence, the
need for the appointment of a guardian ad litem.
Page 328 of [2007] 1 EA 317 (CAU)

Secondly, the plight of both infants in the applications before court speaks for itself. They were not
only abandoned soon after birth by their biological mothers, but worse still the said mothers are
unknown. No relative or friend of their family came forward to take them home and care for them. The
infants had to be institutionalised in a children’s home where they were referred to.
Thirdly, the appellants who are citizens of USA are ready and willing to provide them with a home
which is ideal. Staying in a children’s home is not the best as the infants cannot possibly get all the
individual attention and parental care they would have in a family.
Fourthly, it must be emphasised that both infants have no known parents nor a single relative or a
friend of the family. The children’s homes do a commendable job to care for those abandoned and
destitute children but they cannot offer the same care and attention to the children due to the numbers and
limited resources.
Bearing in mind the requirement to exercise caution when granting intercountry orders relating to
children, the next question to consider is whether the appellants are suitable persons to be appointed
guardians of the infants.
Clearly, the applications before Court are intended to take care of the infants who are of tender age
and in need of care and protection. The aforesaid notwithstanding, it must be conceded that there are
problems which are peculiar to these applications which would have to be resolved before this Court
could grant the orders sought for.
First and foremost, the four appellants are not only foreigners but do not reside in Uganda. As already
noted, they are citizens of USA whilst the infants are Ugandans. With regard to the foreigners,
non-citizenship per se is not a bar to obtaining orders in relation to Ugandan children. In this I am
fortified by the provisions of section 46 of the Children’s Act which permit adoption by foreigners in
special circumstances and on the conditions stated thereunder. I am of the opinion that by analogy it is
also possible for non-Ugandan citizens to obtain guardianship orders in respect of Ugandan minors.
In this respect, I am fortified by some of the decided cases in which guardianship orders were granted
to non-citizens. These include: “In the matter of an Application for Guardianship by Rene Kampmeyer
miscellaneous application number 15 of 1992,” wherein the High Court granted guardianship to Dutch
citizens.
Be that as it may, there are yet other obstacles this Court has to address, namely, the control and
supervision of the guardians since the appellants live out of the jurisdiction of the courts of Uganda.
However, these problems can be solved by imposing precautionary measures on the applicants to
protect the children’s present and future interests. The applicants could, for example, be required to
submit periodical progressive reports. Besides, with modern technology the world has become a global
village. It should be noted, moreover, that unlike in adoption matters, the conditions imposed under
section 46 of the Children’s Act are not mandatory. The discretion is left to the court to impose
conditions it deems appropriate.
With regard to the appellants/applicants in the present applications, I have no reason to doubt their
intentions. I would, however, stress that each case has got to be decided on its own merits. In my view,
these are proper applications in
Page 329 of [2007] 1 EA 317 (CAU)

which to grant the guardianship orders applied for in respect of both infants. They are in the best interest
of both infants.
I also consider both appellants in civil appeal number 33 of 2006, Mr Kevin Little and Ms Rebecca
Little, suitable to be appointed guardians of the first infant, Howard Amani Little. Similarly, I consider
both appellants in civil appeal number 32 of 2006, Noel Adam Palmer and Michelle Louise Palmer,
suitable to be appointed guardians of the second infant, Francis Palmer.
In the result I would allow the appeals and set aside the rulings and orders of the High Court.

Decision of the court

As Amos Twinomujuni JA concurs that both appeals must succeed, by a majority decision of this Court
the said appeals are allowed. The decisions and orders of the High Court in both Family Cause number
15 of 2006 and Family Cause number 14 of 2006 are hereby set aside with the following orders:
“(1) The appellants in civil appeal number 33 of 2006 are hereby appointed legal guardians of the first
infant and the appellants in civil appeal number 32 of 2006 are also appointed legal guardians of the
second infant until the said infants attain the age of 18 years or any other lawful orders of the Court on
the following conditions:
(a) The infants must retain the Citizenship of Uganda until attainment of the 18 years for further
orders of the court.
(b) The appellants in each case are directed to obtain Ugandan passports for the infants and give
the said infants a Ugandan name, in addition to the existing ones.
(c) The appellants in each case are directed to leave all their particulars, addresses, email and
physical residence where the infants will be residing, with the Chief Registrar of the Courts of
Judicature, with copies to the Probation and Social Welfare Officers, Kampala and Jinja,
National Council for Children, Amani Baby Cottage, Jinja, Ministry of Foreign Affairs
Kampala and Uganda Embassy in Washington DC in USA.
(d) The appellants are directed to submit progressive reports of the first infant and the second
infant, respectively, every 6 months to the District Probation and Social Welfare Officers
Kampala and Jinja, Chief Registrar Courts of Judicature, Ministry of Foreign Affairs and the
Uganda Embassy in Washington DC USA. The same report must be sent to Amani Babies
Cottage, Jinja.
(e) In the event of an application for adoption, of the infants or any one of the two, it must be filed
in Uganda failure of which will result in the revocation of the guardianship orders.
(f ) The appellants in both cases are hereby ordered to bring the first and second infants back to
Uganda and produce them before the Chief Registrar of the Courts of Judicature every 5 years
from the date of this decision until the said infants attain the age of 18 years.
(g) Any changes of address must immediately be communicated to the above mentioned
authorities.
(2) The Civil Registry of the Court of Appeal is directed to send copies of the guardianship orders to the
Chief Registrar Court of Judicature, Ministry of Foreign Affairs, The National Council for Children,
the District Probation Officer, Jinja, Uganda Embassy in Washington DC, USA.”

Before we take leave of this matter we have some observations to make.

Page 330 of [2007] 1 EA 317 (CAU)

The proceedings in the High Court and before this Court were ex parte. The appellants who were
interested in getting guardianship of the infants had counsel to represent them. On the contrary, Ugandan
citizens, namely both infants, who are some of the most voiceless of the voiceless, had no one to
represent them whilst they represent the interests of many in their category.
We are of the view that in an application of this nature the Attorney-General or the National Council
for Children, which is vested with legal authority to care for the interest of children, should be
represented. It is worth noting that in contrast to the scenario in the instant appeals, if one of the infant’s
deceased parents had left some property, the Administrator-General would have, by law, come in full
force to super-intend over the administration of the estate of the deceased parents.
These are appeals in which the citizens of another country wished to take away the infants for good
and subsequently adopt them, yet there was nobody in court to see to it that their present and future
interests were protected.
This court takes judicial notice of the fact that failure to follow adequate safeguards and ensure that
children are represented in applications may expose them to the dangers of child trafficking, which is an
increasing phenomenon in the modern world.
There is also a need to re-inforce the legal protection of children by revisiting the law governing
guardianship to bring it to the same level as the law governing fostering and adoption under the
Children’s Act. There should be statutory tests for the evaluation of applicants for guardianship,
especially in cases of intercountry guardianship.
Twinomujuni JA: I have had the advantage of reading the leading judgment written by my honourable
sisters, Honourable Deputy Chief Justice and Honourable Justice Kitumba JA. I agree with the
conclusion and some of the reasoning, of the Honourable Deputy Chief Justice as I propose to show
hereunder. I am, with respect, unable to agree with the Honourable Justice CNB Kitumba for the reasons
outlined in this judgment. The facts of the case, the grounds of appeal and the arguments of counsel are
clearly and ably spelt out in those judgments and I shall not repeat them in this judgment.
The applicants filed a notice of motion in the High Court of Uganda at Kampala stating that they were
seeking orders for legal guardianship in respect of two infants now known as Francis Palmer and Howard
Little. They claimed that they were making the application under the authority of article 139(1) of the
Constitution of Uganda, sections 14, 33 and 39 of the Judicature Act (Chapter 13) and section 3 of the
Children’s Act (Chapter 59). The High Court refused to grant the orders prayed for on the grounds that
the Family and Children’s Court in Jinja which placed the two children into custody of the applicants did
not follow the procedure laid down in the Children’s Act. The applicants appealed to this Court against
that order.
Before I consider the merits of this appeal, I have been wondering why the applicants had to make this
application in the High Court at all.
I will now deal with this matter before I consider the merits of the appeal. The application before the
High Court by notice of motion was ex parte. The matter as to whether the motion was properly before
the High Court was never raised at the trial. However, it is a legal point on the question of jurisdiction of
Page 331 of [2007] 1 EA 317 (CAU)

the High Court and whether it had the powers to entertain the matter of guardianship of the infants
through a notice of motion. Since I entertained doubts on the court’s jurisdiction, I could not ignore
pronouncing myself on it.
So, the question is:
Who has the jurisdiction to entertain matters of guardianship in the laws of Uganda?
The main law concerning children is to be found in the Children’s Act which came into force on 1
August 1997. The purpose of that law was stated in the head note to the Act as follows:
“An Act to reform and consolidate the law relating to children; to provide for the care, protection and
maintenance of children; to provide for local authority support for children; to establish a family and
Children’s Court; to make provision for children charged with offences and for other connected purposes.”

This law is a consolidation of our customary best practices, common law and international law on the
treatment and welfare of children. It is no longer necessary to look anywhere else for the law on children
unless the Act is silent on the question in issue.
Before I deal with jurisdiction on guardianship under the Children’s Act, it is necessary to examine
the definition of some words used in the Act. The relevant words and phrases are:
“Section
(i) Foster care placement’ means the placement of a child with a person who is not his or her parent or
relative and who is willing to undertake the care maintenance of the child;
(j) ‘Foster parent’ means a person not being the biological mother, father or relative of the child who
assumes parental responsibility of the child by way of a care order;
(k) ‘Guardian’ means a person having a parental responsibility for a child;
(n) ‘Parent’ means the biological mother or father or adoptive mother or father of a child;
(o) ‘Parental responsibility’ means all rights, duties, powers, responsibilities and authority which by law a
parent of a child has in relation to the child;”

From these definitions it emerges that a guardian is a person, other than a parent, who has parental
responsibility for a child. Parental responsibility in turn means rights, duties, powers, responsibilities and
authority which by law a parent of a child has in relation to the child. Where the child has no biological
parents or adoptive parents, then a foster parent is the guardian because a foster parent is defined “as a
person not being the biological mother, father or relative of the child who assumes parental responsibility
of the child by way of care order”. [Emphasis mine.]
In my humble judgment, where a child has no parents or relatives and is placed in custody of a foster
parent by way of a care order, that foster parent becomes the legal guardian of the child. It is now
pertinent to ask, who has jurisdiction under the Children’s Act to create a foster parent in respect of any
child?
Section 19(b) of the Act provides:
“On the application of a Probation and Social Welfare Officer or an authorised person, a family and
children’s court may make:
Page 332 of [2007] 1 EA 317 (CAU)
(b) a care order or interim care order, placing the child in the care of a Warden of an approved home or
with an approved foster parent in accordance with the Foster Care Placement Rules in the second
Schedule to this Act.” [Emphasis mine.]

It will be seen from the above that the jurisdiction to grant guardianship is placed on the Family and
Children’s Court on the application of the Probation and Social Welfare Officer or any other authorised
person.
This position is further re-emphasised in section 27 of the Act which states:
“A Family and Children’s Court may on application of a Probation and Social Welfare Officer or an
authorised person, make a care order or an interim care order placing the child in care of the Warden of an
approved home or with a foster parents.” [Emphasis mine.]

Section 43 of the Act provides for an alternative method of creating guardianship where the child has
already been placed in the custody of an approved home. It states:
“(1) Where a child has been committed to an approved home under a care order, the District Probation and
Social Welfare Officer, in conjunction with the warden of the approved home, may place the child
with a person who is willing to undertake the care and maintenance of the child, in this Part referred to
as a ‘foster parent’.
(2) An application to foster a child shall be made to the District Probation and Social Welfare Officer,
except that a relative of a child without a parent or guardian may foster the child without first applying
to the District Probation and Social Welfare Officer, and this part shall not apply to him or her.
(3) A foster parent in whose care a child is committed shall, while the child remains in his or her care,
have the same responsibilities in respect of the child’s maintenance as if he or she were the parent of
the child.
(4) Foster care placements shall be made in accordance with the rules set out in the second Schedule to
this Act.”

My understanding of these provisions is that:

(a) It is the Children’s Court which has the jurisdiction to appoint an approved home or a foster parent
as guardian for the child on the application of:
(i) A District Probation and Social Welfare Officer, or
(ii) an authorised person,
(b) Where the child has already been placed in an approved home in accordance with the Act, then
the:
(i) Probation and social welfare officer, or
(ii) An authorised officer.
In conjunction with the warden of the approved home, can place the child under the guardianship of a
foster parent. [Emphasis mine.]
It is my humble view, that the jurisdiction to grant guardianship under the Children’s Act is a settled
matter as I have endeavoured to be shown above. The High Court does not have such a jurisdiction. Once
the Probation and Social Welfare Officer and the warden of the approved home apply for and obtain a
care order from the Family and Children’s Court, the home or the foster parent automatically become the
legal guardian of the child and it is not necessary to apply to the High Court for the same thing. In fact
the High Court has no jurisdiction to entertain such an application as it has no jurisdiction to grant
guardianship under the Act.
Page 333 of [2007] 1 EA 317 (CAU)

The provisions of the 1967 Judicature Act which gave the High Court jurisdiction over matters of
guardianship of children, were not adopted in the 1996 Judicature Act. This was because at the time the
1996 Judicature Act was passed, the preparation of the Children’s Act which consolidated all laws
regarding children in Uganda was in progress. Under the Children’s Act 1996 the High Court only has
jurisdiction over matters of adoption (section 44) and appeals (Section 105). All other matters under the
Act are left under the jurisdiction of subordinate courts
The provisions of article 139 of the Constitution do not give the High Court such jurisdiction. It is
true that the High Court has unlimited jurisdiction in all civil and criminal matters. However, once a
competent court subordinate to the High Court has properly entertained a matter, it cannot be entertained
by the High Court on plaint or notice of motion. The matter could only go to the High Court on appeal.
What we are dealing with did not go to the High Court on appeal. It was by notice of motion which in my
view was misconceived and therefore incompetent. I would hold that the entire proceedings before the
High Court were a nullity.
I now turn to the merits of this appeal (if any). The first part of this judgment that I have just
concluded should be enough to dispose of this appeal. The trial court entertained a matter that it had no
jurisdiction to deal with. Its proceedings were therefore a nullity. However, if I should be wrong on the
matter, I will briefly deal with the grounds of appeal. I wish to start with the third ground of appeal which
states:
“The learned trial Judge erred in law and in fact in dismissing the application without considering the welfare
and best interest of the child.” [Emphasis mine.]

The child welfare principle is clearly stated in the first Schedule to the Children’s Act. Section 1 of the
Schedules states:
“Whenever a State, a court, a local authority or any person determines any question with respect to:
(a) The upbringing of a child;
(b) The administration of any child’s property or the application of any income arising from it, the child’s
welfare shall be of the paramount consideration.”

Section 2 of the Schedule states:

“Time being of essence
In all matters relating to a child, whether before a court of law or before any other person, regard shall be
had to the general principle that any delay in determining the question is likely to be prejudicial to the welfare
of the child.”

In my view, even assuming that the High Court had jurisdiction to hear the notice of motion that it heard,
it was a serious error to dismiss the motion without consideration of the welfare principle and the essence
of the time factor. The trial court just dismissed the motion but forgot the fact that it was dealing with
children who needed care and protection. In so doing it left the two children without any legal protection,
a matter that could result in irreparable harm to the children. Even assuming that the care order for the
children was granted irregularly, which I do not accept, the trial Judge would be in error to just nullify
the proceedings without determining what effect such an order would have on helpless children as in
these two cases. I must also add that in giving due weight to the paramountcy of the welfare principle and
the essence of time when dealing with children’s matters, the court will, in certain
Page 334 of [2007] 1 EA 317 (CAU)

cases, disregard certain procedures laid down in the Act in order to protect the welfare of the child. In the
instant cases the High Court totally neglected the welfare principle and the judgment of the court should
not be allowed to stand despite any irregularity that might have preceded the granting of guardianship by
the Family and Children’s Court. [Emphasis mine.]

Ground one
The learned trial Judge erred in law when he dismissed the application without considering the
application on merits.
As I have stated above courts of law are enjoined by the Children’s Act to consider the welfare of a
child as a paramount consideration. Even if the High Court had jurisdiction to entertain the matter, it
could not dismiss the suit on mere technicalities because matters of citizenship of the guardians and the
form of affidavits presented by the applicants cannot, in my humble view, override the welfare principle
of the child. To the extent that the learned trial court dismissed the motion without considering its merits
(which is really the welfare of the children), I cannot support such a judgment. I would allow the appeal
on this ground also.

Ground two
The learned trial Judge erred in law and in fact in finding that the Probation and Social Welfare Officer
flouted the rules relating to obtaining the care order being one of the documents relied upon, in the
application for legal guardianship.
In my judgment, I do not see how the Probation and Social Welfare Officer flouted the law. He made
the necessary applications before a competent court. The trial Judge did not get a full report regarding all
the considerations that the Children’s Court took into account in granting guardianship of the children to
the applicants. With respect, he appears to have been in haste to dismiss the motion on technicalities that
other than looking at the application forms, he did not look at the court order or consider whether one
existed. Despite some possible irregularities in the application forms or procedures, it would be
legitimate for a Children’s Court to ignore them in order to give full effect to the welfare principle and
the essence of time consideration. The rules and procedures laid down in the Act give guidance to anyone
dealing with children’s matters but they are not cast in stone. They must always be construed in such
away as to give effect to the paramountcy of the child welfare principle. I would allow this appeal on this
ground also. [Emphasis mine.]
Finally, I wish to mention that after hearing this appeal, we invited assistance and advice of an expert
on children’s matters from the Ministry of Gender, Labour and Social Development, one called Wille
Otim, who is a Commissioner for Youth and Children in that Ministry. He went to Jinja to investigate
these two applications for guardianship and he made a comprehensive report which I wish to adopt in
part as part of my judgment and it should be annexed to this judgment as part of it. The report and the
recommendations are self-explanatory. I will here below only quote concluding recommendation of the
report:
Page 335 of [2007] 1 EA 317 (CAU)
“Recommendation:
After visiting the Children’s Home in Jinja and talking to the Probation Officer and the Administrator of
Amani Babies Cottage, I did not discover anything unusual. The case of the two children seem to have been
handled in accordance with the Law and taking the principle of the best interest of the child, the children are
likely to gain than if they remained here. Similar cases have already been handled by the High Court of
Uganda and the children are already in the USA doing well from the annual reports on the progress of the
children sent back to the Probation Officer, Jinja. The American Government has very stringent regulations
regarding admission of children into the US. It is still possible to follow the children through our Embassy in
the US. Some of the information provided in this report could be verified with the American Embassy Report
compiled by Willie Otim, Commissioner of Youth and Children (MGLSD) 24 August 2006.”

This is an application for guardianship of the two infants. It was lawfully granted by the Children’s Court
in Jinja. The orders of the court were never challenged on appeal. So the guardianship orders still validly
subsist. This report by the Commissioner of Youths and Children re-enforces my belief that it is in the
best interest of the children that the order was made and it should be upheld. The notice of motion to the
High Court was a waste of time, of which time is of essence in this matter. We cannot afford to waste
more time as this may result into irrevocable damage to the children. God has sent to them a gift of
parents which they should be allowed to enjoy.
I am, with respect, not comfortable with the order of the Honourable Deputy Chief Justice on future
citizenship and adoption of the children. Such orders could prove nugatory to efforts to give these
unfortunate children a secure home with loving parents. In my opinion the welfare of the children should
be left with the foster parents, the Probation and Social Welfare Office in Jinja and the Family and
Children’s Court in Jinja. The power to grant any adoption order resides in the High Court of Uganda.
However, in the spirit of compromise and consensus, and in the best interest of welfare of the children, I
concur with orders by the Honourable the Deputy Chief Justice relating to the future management of the
children.
I would allow this appeal.
Kitumba JA: I have had the benefit of reading in draft the judgments of my seniors Justices on the
Coram. The background facts to the appeal and the grounds of appeal are well set out in the lead
judgment of the Honourable Deputy Chief Justice. I will, therefore, not repeat them here.
On the issue of whether the High Court has jurisdiction to entertain applications for guardianship of
infants, I agree with the holding of the Honourable Deputy Chief Justice on that point.
The jurisdiction to entertain guardianship applications is given to the High Court by article 139 of the
Constitution and sections 14, 33 and 41 of the Judicature Act (Chapter 13). I appreciate that the
Children’s Act consolidated all laws concerning children. However, it did not take away the jurisdiction
of the High Court on matters of guardianship. According to the definition as contained in the Children’s
Act “Foster parent” means a person not being the biological mother, father or relative of a child who
assumes parental responsibility of the child by way of a “care order”.
(k) “Guardian” means a person having parental responsibility of a child.
Page 336 of [2007] 1 EA 317 (CAU)
(o) “Parental responsibility” means all rights, duties, powers, responsibilities and authority, which by law,
a parent has in relation to the child.
The Children’s Act gives different definitions to the two terms ‘guardian’ and ‘foster parent’. If both mean the
same, the draftsman would have said so. Parental responsibility is acquired in different ways. A parent gets it
by giving birth to a child, a guardian by appointment of the court and foster parent by way of a ‘care order’.
Having parental responsibility per se does not, in my view, make one a guardian. In law unless the law says
that such a person is a guardian.

I am of the considered opinion that it would not be correct to say that because the Family and Children’s
Court has the jurisdiction under section 19(b) of the Children’s Act to make interim care orders placing
the child in the care of a warden of an approved home or an approved foster parent, the High Court has
no jurisdiction in applications for guardianship. Similarly, it would not be correct to hold that by the
provisions of section 43 of the Act when the District Probation and Social Welfare Officer in conjunction
with the warden of the approved home place a child with a foster parent, that foster parent becomes a
guardian. It would not be quite correct to conclude that the High Court has no jurisdiction in applications
for guardianship of infants.
The law is now settled that no Act of Parliament can take away the jurisdiction of the High Court,
which is provided, in section 139 of the Constitution. In NPART v Kagadu Enterprises Limited civil
appeal number 26 of 1998, this Court considered article 139 of the Constitution and section 16(1) of the
NPART Statute (Now section 14 of the Non-Performing Assets Recovery Trust Act (Chapter 45) which
states:
“The tribunal shall have exclusive jurisdiction to hear and determine all matters arising under this statute or
relating to any non-performing asset transferred to the Trust under this statute.”

This Court was of the unanimous view that no law made by Parliament can oust the jurisdiction of the
High Court provided by the Constitution unless it is a constitutional amendment. Manyindo DCJ (as he
then was), stated thus:
“The Constitution is the Supreme law of this country. Article 139(1) of the Constitution provides as follows:
139 (1) The High Court shall, subject to the provisions of this Constitution, have unlimited original
jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by
this Constitution or other law.”

The same provision is repeated, word for word, in section 16(1) of the Judicature Act, 1996 (now section
14(1) Chapter 13). It is plain from those two provisions that unlike other courts, the High Court enjoys
unlimited original jurisdiction in all matters. But it does not enjoy unlimited appellate and other
jurisdiction. In my opinion, what has been bestowed by the Constitution cannot be taken away by any
other law. It follows that when read together with article 139 of the Constitution and section 16(1) of the
Judicature Statute, the provision in section 16(1) of the NPART Statute can only exclude courts other
than the High Court.
I now turn to the appeal as it was argued before court.
Learned counsel, Ms Betty Munabi, who appeared for the appellants, Mrs Michelle Louise Palmer
and Mrs Rebecca Little and the infants, were present in court during the hearing of the appeal. In her
submissions counsel argued
Page 337 of [2007] 1 EA 317 (CAU)

ground one, three and two consecutively. I shall handle the grounds separately beginning one, two and
three in that order. I now consider ground one, which states:
“The learned trial Judge erred in law when he dismissed the application without considering the application
on its merits.”

On this ground counsel contended that the learned trial Judge did not consider the evidence supporting
the application. He only considered the propriety of getting the care order. When he found that it was
obtained in an improper manner he dismissed the application. Counsel argued that the care order was
valid and binding because it was neither set aside nor varied. She argued that the learned Judge failed to
administer justice without undue regard to technicalities as provided by article 126(2)(e) of the
Constitution.
Article 126(2)(e) of the Constitution provides:
“(2) In adjudicating cases of both a civil and criminal nature, the courts shall, subject to the law, apply the
following principles:
(e) substantive justice shall be administered without undue regard to technicalities.”

Counsel’s arguments regarding the validity of the care order is with respect not tenable. Substantive
justice referred to in article 126(2)(e) of the Constitution is therefore, not a licence to disregard the law or
rules of procedure. (See Kasirye Byaruhanga and Company Advocates v Uganda Development Bank civil
appeal number 2 of 1997 (SC)). The care order and the whole procedure of getting it were riddled with
illegalities. I do not accept counsel’s argument that it was a valid order and the Judge should have let it
pass. That notwithstanding, the Judge should have considered the applications on merit. Ground one
succeeds in part. Counsel’s complaint on ground two is that the learned trial Judge erred in law and in
fact in finding that the Probation and Social Welfare Officer flouted the rules relating to obtaining of the
care order. Submitting on ground two, counsel criticised the Judge for holding that no welfare officer or
any authorised person complied with the procedure provided under sections 27 and 28 of the Children’s
Act and the rules provided in the second Schedule to the Act before the care order was granted to the
appellants. Counsel argued that according to section 43 of the Children’s Act the District Probation and
Social Welfare Officer in conjunction with the five wardens of that home have the powers to place such a
child with a foster parent. This is done according to the Foster Care Placement Rules that are provided in
the second Schedule to the Children’s Act. She further submitted that according to rule 4, a future foster
parent fills forms. It was counsel’s argument that the infants, in the instant appeals, were already in an
approved home. The appellants filled the forms as required by the rules. She argued that the Probation
and Social Welfare Officer took a further and, in counsel’s view, an unnecessary step under section 27
and 28 of the Children’s Act, of getting a care order from the Family and Children’s Court. She
submitted that the Honourable Magistrate of the Family and Children’s Court properly exercised his
discretion. He was guided by the provisions of the Children’s Act and made a care order of placing the
infants under the care of the appellants.
According to counsel no provisions of the law were flouted. Counsel prayed to court to re-evaluate the
evidence and to grant guardianship of the infant to the appellants. The duty is upon us as a first Appellate
Court to re-appraise the
Page 338 of [2007] 1 EA 317 (CAU)

evidence, which was presented during the trial and come to our own conclusion. See rule 30(1)(a) of the
Judicature (Court of Appeal) Rules. The evidence to support the appellants’ (Palmers) application for
guardianship was from the affidavit that was jointly sworn by both appellants in support of their
application. In their joint affidavit they stated that both of them are citizens of the United States of
America and are married. They have three biological children of their own aged 6 years, 4 years and 21
months. They live in Tulsa Oklahoma, USA where they have a permanent home. They were introduced to
Amani Baby Cottage, Jinja in the Republic of Uganda in January 2005 and learned about the baby,
Francis, who was born on 25 May 2004. They further state that Ms Dayne Randolph, the Director of
Amani Baby Cottage, informed them that the infant was abandoned at an antenatal clinic in Mulago
Hospital where her mother died soon after giving birth. They were informed that no one claimed the
infant. The Probation and Social Welfare Officer of Jinja placed him at Amani Baby Cottage.
It is important to quote in full the following paragraphs of their affidavit:
“(4) That about the month of January 2005, we were introduced to Amani Baby Cottage, Jinja in the
Republic of Uganda and eventually learnt about Francis Palmer a child currently of 18 months, having
been born on 25 May 2004.
(5) That we fell in love with the said child Francis Palmer, and have invested a lot of energy, time and
finances into the said child and are desirous of obtaining legal guardianship in respect of the said child
and eventually adopting him.
(6) That we also learnt from Danyne Randolph that the Probation and Social Welfare Officer placed the
child in Amani Baby Cottage on the 30 day of June 2004 where the child was given the name ‘Francis
Palmer’ and that the child has since been cared for materially, health wise, physically, emotionally and
spiritually by Amani Baby Cottage.”

The other appellants (Littles), are a married couple residing in United States of America. Their joint
affidavit reads in part:
“(4) That about the month of July 2005 we were introduced to Amani Baby Cottage, Jinja in the Republic
of Uganda and eventually in the first week August 2005 learnt about Howard Amani Little a child
currently aged four (4) months, having been born on the 13 August 2005.
(5) That we fell in love with the said child Howard Amani Little and are desirous of obtaining legal
guardianship in respect of the said child and eventually adopting him.
(6) That we were informed by Ms Danyne Randolph the Director of Amani Baby Cottage, Jinja which
information we verily believe to be true, that the child Howard Amani Little was abandoned at the
Antenatal Clinic, Mulago Hospital when the child was admitted on the Special Care Unit for
prematurity and that the Mulago Hospital staff gave the child the name ‘Amani’.
(7) That we were further informed by the said Ms Danyne Mulago Hospital authorities made record to the
effect that the mother of the child did not appear on the ward at all, and that they had no more
information on the child hence the principal medical social worker at Mulago Hospital requested the
Probation and social welfare officer, Jinja that the child Howard Amani Little be placed in a babies’
home. Copy of the letter requesting placement is attached hereto and marked ‘First Information’.
(8) That we also learnt from Danyne Randolph that the Probation and Social Welfare Officer Jinja placed
the child Howard Amani little in Amani Baby Cottage on the 8 September 2005 where the child was
given the name ‘Howard’
Page 339 of [2007] 1 EA 317 (CAU)
and that the child has since been cared for materially, health wise, physically, emotionally and
spiritually by Amani Baby Cottage.”

It should be noted that the application for guardianship was a suit that was to determine the matter
finally. It was not an interlocutory application. In that case the appellants were supposed to depone to
facts that were in their knowledge and which they could prove. This is what Order 19, rule 3 of the Civil
Procedure Rules provides. It reads as follows:
“3 (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to
prove, except on interlocutory applications, on which statements of his to belief may be
admitted, provided the grounds thereof are stated.”

The appellants (Palmers), obviously swore on matters concerning the death of the infant’s mother of
which they had no personal knowledge. The Littles swore about the abandonment of the child at Mulago
Hospital about which they had no personal knowledge. Their evidence was hearsay. I shall, however,
consider the appeal for whatever it is worth.
Counsel has correctly relied on section 43 of the Children’s Act, which gives powers to the Probation and
Social Welfare Officer to make a replacement order. The section provides:
“(1) Where a child has been committed to an approved home under a care order, the District Probation and
Social Welfare officer, in conjunction with the warden of the approved home, may place the child with
a person who is willing to undertake the care and maintenance of the child, in this Part referred to as a
‘foster parent’.
(2) An application to foster a child shall be made to the District Probation and Social Welfare officer,
except that a relative of a child without a parent or guardian may foster the child without first applying
to the District Probation and Social Welfare officer, and this Part shall not apply to him or her.”

Nobody in the appellants’ home suffering from any physical or mental illness likely to affect the child as
is required by rule 6(d). Likewise, there is no secretary for children’s affairs or an officer in charge of a
police station in the area who established that in the appellants’ homes there is nobody who had been
convicted of a serious criminal offence, making it undesirable for the infants to associate with that person
as per rule 6(e). It is noted that there is on record a report headed Adoptive Home Study. It was made by
one, Rachel Samuelson who is a licensed social worker by the Oklahoma State. The law is clear. The
report on record is not what the Children’s Act and the rules provide. We should be mindful of the
territorial jurisdiction of our courts.
The appellants are not citizens of Uganda. They are non-residents in the country but were given a care
order contrary to rule 5(3) of the Foster Care Placement Rules. Additionally, all the legal provisions of
the Children’s Act and the rules that had to be observed before such a placement were unfortunately
ignored. There are indeed other provisions of the Act that have to be observed after the infant had been
placed under the care of the foster parents. An example is rule 12 of the Foster Placement Rules, which
provides that the Probation and Social Welfare Officer must visit the foster parent at specified intervals
and make reports. It is highly doubted whether this provision could be complied with, in the appeals
before us.
Page 340 of [2007] 1 EA 317 (CAU)

It is appreciated that section 27(1) of the Act empowers a Family and Children’s Court to make care
orders. However, section 27(2) specifies that a care order may only be made in the following
circumstances:
(a) After all possible alternative methods of assisting the child have been tried without success and the
significant harm from which the child is suffering or is likely to suffer requires his or her removal
from where he or she is living; or
(b) The danger to which the child is exposed is so severe as to require his or her immediate removal
from where he or she is living.
The purpose of a care order is given in section 28 of the Act as follows:
“(a) To remove a child from a situation where he or she is suffering or likely to suffer significant harm, and
(b) To assist the child and those with whom he or she was living or wished to live to examine the
circumstances that have led to the making of the order and to take steps to resolve or ameliorate the
problem so as to ensure the child’s return to the community.”

I appreciate that the infants were in an orphanage. There is no evidence by affidavit or otherwise to show
that the infants were in any danger at Amani Baby Cottage that necessitated their immediate removal
from there. On the contrary, the evidence from the appellants themselves is that the infants were well
looked after at that home. To me there was neither significant harm nor a danger that necessitated their
removal from there illegally. It did not warrant the Family and Children’s Court to make care orders
without following the rules as indicated in the judgment. Counsel’s attack on the learned Judge on
finding that sections 27 and 28 of the Act and rules were flouted, is unjustified. In my view, counsel has
not shown to court how the learned trial Judge erred in law and in fact. I am of the considered view that
the learned trial Judge correctly found that the provisions of law relating to care orders were not
followed. In the premise ground two fails for lack of merits.
I now consider ground three which states:
The learned trial Judge erred in law and in fact in dismissing the application without considering the
welfare and best interest of the child.
Counsel attacked the learned Judge for failing to take into account the welfare and the best interest of
the children as provided, in section 3 of the Children’s Act and the guiding principles stated in the first
Schedule to the same Act. She submitted that according to the affidavit evidence from the appellants, the
infants had no parents. One had lost his mother at birth and since then no one had come forward to claim
him. The other, his mother abandoned him at the hospital. The two were placed in an orphanage. The
appellants found them there and desired to raise and keep them as members of their families. In counsel’s
view, considering the tender age of the infants, it was in their best interest and welfare to be placed under
the guardianship of the appellants. They were ready and willing to give them a home and family where
they would get love, comfort and attention, adequate specialised provisions and parenting other than in
an orphanage. The appellants could not travel with the infants to USA unless they had an order from
court vesting the guardianship of the infants into their care. Counsel argued that the learned trial Judge
failed to consider all that and refused the appellants guardianship of the infants whereas he should have
done so. In support of her submissions she relied on Re Jane Namukasa an infant
Page 341 of [2007] 1 EA 317 (CAU)

in the matter of an application by Mr and Mrs Stefano and Silvia Lemon High Court miscellaneous
application number 78 of 1991 [1992-1993] HCB 200 and Mark Stacy Lucky and Martha Ann Lucky FC
0012/2003 (UR).
I appreciate that welfare of a child must be considered in applications for guardianship. Regarding the
welfare of the child, section 3 provides:
“The welfare principles and children’s rights set out in first Schedule to this Act shall be the guiding
principles in making any decision based on this Act.”

The first Schedule to the Act provides the welfare principles as follows:
“(1) Welfare principle.
Whenever the State, a court, a local authority or any person determines any question with respect to:
(a) the upbringing of a child; or
(b) the administration of a child’s property or the application of any income arising from it, the
child’s welfare shall be of the paramount consideration.
(3) Criteria for decisions.
In determining any question relating to circumstances set out in paragraph 1(a) and (b), the court or
any other person shall have regard in particular to:
(a) The ascertainable wishes and feelings of the child concerned considered in the light of his or
her age and understanding;
(b) The child’s physical, emotional and educational needs;
(c) The likely effects of any changes in the child’s circumstances;
(d) The child’s age, sex, background and any other circumstances relevant in the matter;
(e) Any harm that the child has suffered or is at the risk of suffering;
(f ) Where relevant, the capacity of the child’s parents, guardians or other involved in the care of
the child in meeting his or her needs.”

The welfare of the child differs from child to child as the circumstances warrant. Counsel’s argument
was mainly that the appellants would provide the family and other physical necessities for the infants. It
should be noted that according to article 11(1)(c) of the Constitution the infants in these appeals are
Ugandan citizens. The duty to care for them is first and foremost on the government and the people of
Uganda. I am of the considered view that it would have been in the best interest and welfare of the
infants that possibilities of their placement should first be looked for, within the country. From the
affidavits of the appellants it is evident they got to know of these alleged orphaned infants and started
spending money on them. In case of the Palmers, they got to know of the infant Francis in January 2005
and since then have “invested a lot of energy, time and finances into the said child”. The appellants as it
is clearly shown in their joint affidavits sought for care orders to foster the infants with the aim of
eventually adopting them as their own children. They even gave them their family names. Section 46 of
the Children’s Act provides that inter-country adoption is permitted in exceptional circumstances. The
non-citizen who seeks to adopt a Ugandan child must have stayed in Uganda for at least three years and
should have fostered the child for at least thirty six months under the supervision of a Probation and
Social Welfare Officer. The cases quoted Re Jane Namukasa an Infant in the matter by Mr Stefano and
Silvia Lemon, Mark Stacy Lucky and Martha Anne Lucky (supra) are distinguishable from the appeal
before court. In those cases the applicants were residents in Uganda. The
Page 342 of [2007] 1 EA 317 (CAU)

court granted their applications for guardianship and they were to look after the infants in the country. In
the instant appeal I note the apparent good intentions of the appellants. The appellants are using the easy
way out by applying for guardianship of the infants and later to adopt them. I do not have statutory law
providing as to whom guardianship of the infants should be granted. I am inclined to use the analogy of
section 46 of the Children’s Act which permits inter-country adoption in exceptional circumstances.
I note the report, which was authored by Mr Wille Otim, Commissioner for Youth and Children, in
the Ministry of Labour and Social Development at this Court’s request. He stated that Amani Children’s
Home follows the law and some children have already been taken out of the country by court order. Each
case is considered on its merits. These cases are not before us and it is assumed that they were considered
on merit and the courts gave appropriate orders. In his report the Commissioner stated that it is still
possible to follow the children through our Embassy in the United States.
This Court should take judicial notice of the limitations, especially financial, which our embassies
face abroad. Besides, there is no known arrangement between Uganda and United States whereby
children who are taken by US citizens are supervised. It should be remembered that they are Ugandan
citizens and the government of Uganda has the duty first and foremost to look after them. Expecting the
US government to help is merely at a diplomatic level. I do not have a bilateral arrangement or agreement
with the US, regarding for example, concerning non-return of children from abroad. It should also be
noted that Uganda is not signatory to Hague Conventions on children. I do not have inter-country
corporations with the US judiciary.
I appreciate that in matters concerning children, welfare and interest of the child is paramount. That
notwithstanding, the court has to deal with the matters within the legal framework. I do not think that by
considering the welfare and best interest of the child, the court should ignore all the legal procedures and
rules. In my view, this would result into anarchy. The court of law is not supposed to condone an
illegality. (See Makula International Limited v His Emminence Cardinal Nsubuga and another [1982]
HCB 11). The appellants’ affidavit evidence did not comply with the legal provision as indicated earlier
in this judgment. It is, therefore, suspect. Even if I was to rely on it, the appellant’s have not proved
exceptional circumstances warranting granting guardianship outside this country. As I have indicated, Mr
Otim’s report is no evidence in the instant appeals.
In the premise ground three fails.
Before I take leave of this appeal I would like to make the following comments. The proceedings in
the High Court and before this Court were ex parte. The appellants had counsel to represent them,
whereas Ugandan citizens who, in my opinion, are some of the most voiceless of the voiceless had no one
to represent them and the interest of many others in this category. I am of the view that in an application
of this nature the Attorney-General or the National Council for Children, which is vested with legal
authority to care for the interest of the children, should be represented. It is worth noting that in contrast
to the scenario in the instant appeals, if the infants’ parents who had passed away were known and had
left some property, the Administrator-General,
Page 343 of [2007] 1 EA 317 (CAU)

according to the law of this country, would have been in charge of the administration of the estates of
their deceased parents. The infants were to be taken away for good from their country, and there was
nobody in court to see to it that their present and future interests were protected. During the hearing of
the matter on 28 July 2006, Mrs Palmer told court that she was in this Court on 28 June 2006 when this
appeal was adjourned. She flew into Uganda on the morning we heard the appeals. She appeared to me to
be a visitor indeed as she told court that she had been to Uganda only for three and half weeks in March
last year. She apparently had good intentions. However, she and the director of Amani Baby Cottage
appeared not to know the law on adoption in this country. The Ministry concerned should take more care
in matters of this nature. People who seem to be desirous of helping innocent orphans should be advised
on what the law provides. In case they cannot reside here they would be advised to sponsor willing foster
parents who are able to look after orphans within the legal framework of Uganda. There are organisations
for example, Foster Parents Plan International and Christian Children Fund, which have such
programmes in this country. This court takes judicial notice of the fact that child trafficking is an
increasing phenomena in the modern world, especially in the developing countries like ours. Those who
are engaged in such practices clothe their intentions with philanthropic faces. Courts, the National
Council for Children and all welfare workers should have this in mind when dealing with cases of
inter-country guardianship and adoption. The Children’s Act and the rules were enacted with some of the
aims being to safeguard children against such evils.
In the result, I would dismiss both appeals.
For the appellant:
Ms Betty Munabi
For the respondent:
Information not available

Republic v Chairman Meru North District Land Disputes Tribunal and

others ex parte M’Mailutha
[2007] 1 EA 343 (HCK)

Division: High Court of Kenya at Meru

Date of ruling: 2 March 2007
Case Number: 67/06
Before: Ouko JA
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Judicial review – Jurisdiction of the court to issue writs as opposed to orders.
[2] Jurisdiction – Whether land disputes tribunal can rely on customary law – Notice of adjudication
required to exempt land.
[3] Jurisdiction – Whether land disputes tribunals can determine ownership of land.
Page 344 of [2007] 1 EA 343 (HCK)

Editor’s Summary
The ex parte applicant sought orders of certiorari to quash the decision of the Land Disputes Tribunal,
Meru North District in Land Dispute Tribunal number 72 of 2005.
Held – The application seeks “the writ of certiorari” and the “writ of prohibition”. The court has no
jurisdiction to issue writs of prohibition, certiorari or even mandamus. Under section 8(1) and (2) of the
Law Reform Act, the High Court cannot make what were known in England as prerogative writs. But
instead it can issue orders, as opposed to writs, of mandamus, prohibition and certiorari.
An order of certiorari will issue if the decision complained of is made without or in excess of
jurisdiction or where the rules of natural justice are not adhered to. What the tribunal expressed when
referring to the earlier decision of the Njuri Ncheke Council of elders cannot amount to taking into
account extraneous matters. These are matters which were canvassed before the Tribunal.
The Tribunal is enjoined under section 3(7) of the Act to adjudicate upon a claim and reach its
decision in accordance with recognised customary law. It is not out of order for the Tribunal to rely on
customary law as explained by the officials of Njuri Ncheke who testified before it.
The Tribunal is precluded from dealing with land within an adjudication section declared under the
Land Adjudication Act. Under section 5 of that Act an adjudication section can only be declared by the
adjudication officer by notice. It is a requirement that a separate notice shall be published in respect of
each adjudication section, and in each such notice the area of the adjudication section shall be defined as
clearly as possible. It is therefore not enough to merely state that land falls within an adjudication’s
section. One must go further to demonstrate that indeed the section has been published in a notice by the
adjudication officer as an adjudication section. Again no evidence has been adduced to show that the
land falls within an area where consolidation is in progress. It can therefore be concluded that the land is
agricultural as it is not within a municipality or township.
By entertaining the dispute as to the ownership of the disputed land, the Tribunal acted ultra vires its
powers and its decision is for quashing.
Application allowed.

No cases referred to in ruling

Ruling
Ouko JA: This is a judicial review application in which the applicant is seeking certiorari to quash the
decision of the Land Dispute Tribunal, Meru North District (“the Tribunal”) in Land Dispute Tribunal
number 72 of 2005. The applicant also seeks prohibition of the implementation of the decision of the
Tribunal.
The motion was filed after leave was granted in accordance with Order LIII of the Civil Procedure
Rules. Also filed are the statement and verifying affidavit. It is the applicant’s case that he is the owner
of the land, the subject matter of this application, which was also the subject in dispute before the
Tribunal, measuring over 3000 acres. That the same has neither been adjudicated nor
Page 345 of [2007] 1 EA 343 (HCK)

demarcated. That the land was bequeathed to him by his late father in the 1950’s. That proceedings were
instituted before the Tribunal in case number 72 of 2005 in respect of the suit land. The applicant further
states that the parties to the dispute were heard and the Tribunal visited the disputed land. In its decision,
it was submitted, the Tribunal found that the suit land belonged to the interested party and went further to
order that the same be registered in the name of the interested party. To that extent, the applicant argued,
the Tribunal overstepped its mandate; hence this application. Although the Attorney-General was served
no appearance was entered and no reply to the application filed.
The interested party filed a replying affidavit in which he contends that the application is fatally
defective. That the applicant participated in the Tribunal proceedings and cannot be heard this late to
complain about its jurisdiction. In any case the Tribunal had jurisdiction. I have now considered the
application and take the following view of the same.
First, I have noted that the application seeks what it describes as “the writ of certiorari” and the “writ
of prohibition”. This court has no jurisdiction to issue writs of prohibition; certiorari or even mandamus.
See the Law Reform Act, which is the basis for judicial review law in Kenya. Section 8(1) and (2)
provides as follows:
“8 (1) The High Court shall not, whether in the exercise of its Civil or Criminal jurisdiction, issue any
of the prerogative writs of mandamus, prohibition or certiorari.
8 (2) In any case in which the High Court in England is, by virtue of the provision of section 7 of the
Administration of Justice (Miscellaneous Provisions) Act, 1938 of United Kingdom
empowered to make an order of mandamus, prohibition or certiorari, the High Court shall have
power to make a like order.”

The High Court in Kenya, in terms of the above provision cannot make what were known in England as
prerogative writs. But instead it can issue orders, as opposed to writs, of mandamus, prohibition and
certiorari. I say no on this point.
The application, as should be understood, the description of writ notwithstanding, is clearly seeking
orders of certiorari and prohibition. An order of certiorari will issue if the decision complained of is
made without or in excess of jurisdiction or where the rules of natural justice are not adhered to. The
applicant contends that the Tribunal lacked jurisdiction in the proceedings between him and the
interested party and that in making the decision in question it exceeded its jurisdiction.
The Tribunal is accused of basing its decision on the finding of Njuri Ncheke Council of elders to
which the dispute had been earlier referred by the interested party. The Njuri Ncheke found in favour of
the interested party against one M’Itobi Baitabathi who is alleged to have invaded the suit land. After the
Njuri Ncheke found for the interested party and the said M’Itobi Baitabathi left the land, the applicant,
without any colour of right also invaded the land and a dispute arose when the applicant demolished the
interested party’s house and carried away harvested crops. The interested party referred the matter, once
again, to the Njuri Ncheke but the applicant did not appear.
That is the extent of the Njuri Ncheke’s participation in the dispute. How did the Tribunal deal with
the finding of Njuri Ncheke? First, it is clear from
Page 346 of [2007] 1 EA 343 (HCK)

the proceedings before the Tribunal that the Chairmen representing Njuri Ncheke from Ntonyiri, Igembe
Central, Laare and the Secretary, Njuri Ncheke, Mutuati testified before the Tribunal.
The Tribunal, in its award observed that the issue of ownership was decided by the Njuri Ncheke. It
expressed itself as follows:
“One fact we established was that the plaintiff claimed the disputed land through traditional settlement and
was successfully awarded the land by Njuri Ncheke Council of Elders through a ‘Nthenge’(he goat) oath.”

The Tribunal further found that the decision of Njuri Ncheke was final, unless only by cleansing. In my
view, what the Tribunal expressed in this regard cannot amount to taking into account extraneous
matters. These are matters which were canvassed before the Tribunal. The Tribunal is also accused of
relying on customary law, interpreting sketch plans and adjudicating dispute of land over which it had no
jurisdiction. The basis of the Tribunal’s authority is the Land Disputes Tribunal Act, 1990. Section 3
spells out the Tribunal’s jurisdiction as resolving disputes as to:
(a) division of, or the determination of boundaries to land, including land held in common;
(b) a claim to occupy or work land; or
(c) trespass to land.
The Tribunal is enjoined under section 3(7) of the Act to adjudicate upon a claim and reach its decision
in accordance with recognised customary law. It was not out of order for the Tribunal to rely on
customary law as explained by the officials of Njuri Ncheke who testified before it.
On the sketch plans, section 7 of the Act recognises that other than a claim and an answer, a party can
rely on any other “depositions and documents which have been taken or proved before the Tribunal”.
The crux of the matter is, however, on the issue of whether or not the Tribunal had jurisdiction to
adjudicate the dispute in question. The applicant has argued that the land in question falls within an area
where consolidation is in progress. The other fundamental point is whether the Tribunal had jurisdiction
to order that the interested party be registered as the proprietor of the disputed land. Starting with the first
issue, I have already set out the jurisdiction of the Tribunal with regard to resolving disputes involving
specific type of land. Land is defined in section 2 as follows:
“‘Land’ means ‘agricultural land’ as defined in section 2 of the Land Control Act, whether or not registered
under the Registered Land Act, but does not include land situated within an adjudication section declared
under the Land Adjudication Act or the Land Consolidation Act, or land which is the subject of determination
by the Land Registration Court under the Land Titles Act.”[Emphasis mine.]

“Agricultural Land” is, in turn defined in section 2 of the Land Control Act to mean:
“(a) Land that is not within:
(i) a municipality or township; or
(ii) an area which was on, or at anytime after the 1 July 1952 a Trading Centre under the Trading
Centre Ordinance. (now repealed); or
(iii) a market.”
Page 347 of [2007] 1 EA 343 (HCK)

The Tribunal’s jurisdiction is limited to agricultural land as defined above. The disputed land is generally
described by the bordering landmarks and neighbouring land as it is conceded that it has not been
adjudicated. The Tribunal is precluded from dealing with land within an adjudication section declared
under the Adjudication Act. Under section 5 of the Act an adjudication section can only be declared by
the adjudication officer by notice. It is a requirement that a separate notice shall be published in respect
of each adjudication section, and in each such notice the area of the adjudication section shall be defined
as clearly as possible. It is, therefore, not enough to merely state that land falls within an adjudication
section. One must go further to demonstrate that indeed the section has been published in a notice by the
adjudication officer as an adjudication section. The applicant has not done this.
Does the land fall within an area where consolidation is in progress? Again no evidence was adduced
on this aspect of the matter. It can therefore be concluded that the land is agricultural as it is not within a
municipality or township. The parties before the Tribunal testified of grazing of cattle and cultivation of
crops. According to the Tribunal the land is located in Matinyiru area of Mutuati Division and is not
adjudicated. It is sandwiched between Matinyuru/Kigene hills, Ruongo Rua Mpuria hills, Ilungo and
Maiga ya Tala hills.
The next matter is the order issued by the Tribunal to the effect that:
“… the respondent, his agents and assignees (sic) vacate the disputed land in favour of the plaintiff and that
the disputed land be registered to (sic) the plaintiff to the extent of the attached sketch map once the region is
declared adjudication section.”

Although both the claim and answer are not part of the record before me, it is apparent that both the
applicant and the interested party are claiming ownership of the land. On the one hand, the applicant is
asserting that he inherited the land from his father but was driven away following the shifta menace in
the area. After the shiftas were eradicated he returned to the land, built a house and planted crops. That in
his youth his father lived and grazed on the suit land. On the other hand the interested party is categorical
that the applicant invaded (trespassed) on his land on which he had built a house, grazed cattle and
planted food crops.
It was therefore a dispute as to who was entitled to the ownership of the disputed land. By
entertaining this dispute the Tribunal acted ultra vires its powers. Its decision is for quashing. It is
therefore ordered that the decision of the Land Dispute Tribunal, Meru North in LDT case number 72 of
2005 and subsequent orders are hereby quashed. The applicant sought for prohibition. This relief is not
available as the Magistrate’s Court has already acted on the Tribunal’s decision. Prohibition is issued to
prevent a future event.
Costs of this application is awarded to the applicant.
For the appellant:
Information not available
For the respondent:
Information not available

Research International East Africa Limited v Arisi and others

 [2007] 1 EA 348 (CAK)

Division: Court of Appeal of Kenya at Nairobi

Date of judgment: 27 April 2007
Case Number: 321/03
Before: O’kubasu, Githinji and Onyango-Otieno JJA
Sourced by: LawAfrica
Summarised by: C Kanjama

[1] Civil procedure – Plaint – Verifying affidavit – Sworn by first plaintiff on behalf of other 213
co-plaintiffs – Whether deposition of authority competent in the absence of filed and signed authority by
the co-plaintiffs – Whether the suit would be struck out on the grounds of non-compliance – Factors to
consider in the exercise of the court’s discretion – Order VII, rule 1(2), Order I, rule 12 Civil Procedure
Rules.

Editor’s summary
The 214 respondents filed suit against the appellant for breach of their contractual employment contracts.
The first respondent swore a verifying affidavit deponing to authority from each of the respondents to
verify the averments of the plaint. The appellant argued via preliminary objection and subsequently on
appeal that the verifying affidavit was incompetent and that the verifying affidavit and the suit should be
struck out.
Held – Where one plaintiff performs any pleading or other act on behalf of co-plaintiffs in a suit, the
authority should be in writing signed by the party giving it and should be filed in the case. Where there
are numerous plaintiffs, each plaintiff is required by the rules to verify the correctness of the averments
in the plaint by a verifying affidavit unless and until he expressly authorises any of the co-plaintiffs in
writing and files such authority in the case. Grace Ndegwa and others v Attorney-General civil appeal
228 of 2002 considered and distinguished; Microsoft Corp v Mitsumi Computer Garage [Put EA citation]
considered; Patrick Thinguri and others v Kenya Tea Development Agency Company High Court civil
case 26 of 2004 (UR) disapproved.
The verifying affidavit in this case was filed without the legal authority of the other 213 plaintiffs.
The Superior Court therefore had the discretion to strike out the suit or make other appropriate orders to
allow the plaintiffs to comply with the rules. Since the defendant had already compromised with some of
the defendants, and limitation period was still running, the court would strike out the suit herein and
allow the other plaintiffs to file a fresh complaint suit.
Appeal dismissed.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)
Page 349 of [2007] 1 EA 348 (CAK)
East Africa
Grace Ndegwa and others v Honourable Attorney-General civil appeal number 228 of 2002 (UR) – C
and D
Microsoft Corporation v Mitsumi Computer Garage Ltd and another Milimani Commercial Courts High
Court civil case number 810 of 2001 (UR) – C
Patrick Thinguri and others v Kenya Tea Development Agency Company and another High Court civil
case number 26 of 2004 (UR) – DA

Judgment
O’Kubasu, Githinji and Onyango-Otieno JJA: This is an appeal against the ruling and order of the
Superior Court (GBM Kariuki J) dated 13 March 2003 dismissing the appellant’s application dated 20
May 2003 seeking the striking out of the respondents’ suit.
By a plaint dated 12 May 2003, the 214 plaintiffs (respondents) averred that the appellant who was
their employer, had in breach of the Employment Act and the respective contracts of employment, failed
to provide various employment benefits to wit, fully paid annual leave or pay in lieu of leave, house
allowance, rest on public holidays or pay in lieu thereof, compensation for overtime worked, fully paid
maternity leave in respect of female plaintiffs, one month salary in lieu of notice or one month salary in
lieu of notice in the event of the appellant seeking to terminate the respondents’ employment,
severance/redundancy pay at the rate equivalent to 15 days wage/salary for every year of service and
lastly rest day for every week. The respondents further averred, among other things, that the appellant
had in breach of the terms of service compelled the respondents to convert their permanent employment
into short term contractual employment for periods ranging between 4 days to 31 days. The reliefs sought
in the plaint include, judgment for specified claim of each respondent being the value of the benefits
claimed by each respondent – a total of KShs 109 135 862-50 for all the respondents and a mandatory
order restraining the appellant against terminating the respondents’ employment. There is a verifying
affidavit accompanying the plaint sworn by Julius Arisi, the first respondent.
The defendant (appellant) avers in the defence, inter alia, that it had already terminated the services
of 92 of the 214 respondents on 12 May 2005, which is the same date the suit was filed and of one of the
respondents in April 2003; that it had paid all dues of the 93 employees whose services had been
terminated; that each respondent who had a separate contract with the appellant had not separately
pleaded the terms of respective contract; that the appellant does not owe each respondent the sums
claimed; that the plaint is fatally defective and that the suit is an abuse of the process of the court as the
claims of the 38 specified respondents have been settled and 5 respondents had disowned the suit.
On 20 June 2003, the appellant filed a chamber summons under Order VII, rule 1(2), (3) and (10) and
Order VI, rule 13(a), (c) and (d) of Civil Procedure Rules (CPR) for an order that the plaint be struck out
on the grounds that:
“(a) The plaint is fatally defective as it does not comply with the mandatory provisions of Order VII, rule
1(1). The plaintiffs have not sworn an affidavit to verify the averments in the plaint.
(b) It is not sufficient for the first plaintiff alone to swear the verifying affidavit.
Page 350 of [2007] 1 EA 348 (CAK)
(c) It is doubtful that the first plaintiff has authority from all the plaintiffs to institute the proceedings.
(d) The action is an abuse of the process of the court in so far as some of the plaintiffs have settled any
claims they may have had against the defendant.”

The application was partly brought under Order VII, rule 1(2) and 1(3) which provides:
“(2) The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the
averments contained in the plaint.
(3) The court may of its own motion or on the application of the defendant order to be struck out any
plaint which does not comply with sub-rule 2 of this rule.”

On the question of the alleged fatal defect in the suit for lack of verifying affidavits by each of the
plaintiffs, the Superior Court held, thus:
“Before the introduction of rule 1(2) of Order VII Plaints were filed to commence suits without verifying
affidavits.
The introduction of rule 1(2) did not remove the validity or competence of the suit, if or where a verifying
affidavit was not filed along with the plaint. All it did was to give the court power to strike out the plaint
whose averments had not been verified as correct by the plaintiff through a verifying affidavit. Where as here,
the number of plaintiffs is big, it is permissible, for one or more of the plaintiffs to file a verifying affidavit or
affidavits on behalf of all the plaintiffs. Order VII does not out-law this. It is not mandatory that each one of
the plaintiffs must file a verifying affidavit.
In the instant case, there was verifying affidavit by the first plaintiff who claims to have the authority of the
other plaintiffs to swear it not only on his behalf but also on their behalf. The defendant contends that it is
doubtful, that the first plaintiff has authority to swear the verifying affidavit on behalf of all the plaintiffs. At
this stage of the proceedings, the determination of the question would call for evidence. As pleadings stand,
rule 1(2) of order VII seems, on the face of it, to have been complied with.”

Additionally, the Superior Court rejected the contention that the suit was an abuse of the process of the
court.
There are six grounds of appeal. Mr Kimani Kiragu, learned counsel for the appellant, however,
abandoned the sixth ground and proceeded to argue the remaining five grounds together. The purport of
the five grounds of appeal is that the learned Judge of the Superior Court erred in holding that the first
plaintiff had authority from all the plaintiffs to institute the proceedings; that first plaintiff’s verifying
affidavit was sufficient and in holding that suit was not an abuse of the process of the court.
Mr Kimani Kiragu conceded at the outset that there is no basis for striking out the suit against Julius
Arisi, the first respondent. He submitted in support of the appeal, among other things, that the purpose of
rule 1(2) of Order VII Civil Procedure Rules is to make people assume ownership of their claims; that
each plaintiff had an independent contract with the appellant; that it is only a plaintiff who can verify the
correctness of his claim or expressly authorise the filing of a verifying affidavit; that the first respondent
is not in a position to depone to what each of the plaintiffs is entitled to; that the verifying affidavit of the
first respondent is totally inadequate for the claims of the others and that Order VII, rule 1(2) Civil
Procedure Rules requires that each plaintiff should swear an affidavit.
Page 351 of [2007] 1 EA 348 (CAK)

Mr Amuga, learned counsel for the respondents, on the other hand, submitted, inter alia, that the
concession that the entire suit should not be struck out is a good reason for dismissing the appeal; that
Order VII, rule 1(2) Civil Procedure Rules is silent as to whether each plaintiff should file a verifying
affidavit; that there is no need for filing a verifying affidavit by each plaintiff as what is to be verified is
the correctness of the averments and not their truthfulness; that the truthfulness of the claim is a matter
for the trial; that the verifying affidavit of the first respondent is sufficient and lastly, that the court has
power to order each claimant to file a verifying affidavit instead of striking out the suit.
Rule 1(2) and 1(3) of Order VII Civil Procedure Rules was introduced by Legal Notice number 36 of
2000 of 5 May 2000.
In Microsoft Corporation v Mitsumi Computer Garage Ltd and another Milimani Commercial Courts
High Court civil case number 810 of 2001 (UR), the Superior Court (Ringera J as he then was) quoted a
commentary by JVO Juma J appearing in a publication called Hakimu as to the mischief that the new rule
1(2) and 1(3) of Order VII targeted partly thus:
“It is not uncommon these days to find that a plaintiff is represented by different firms of advocates. This
arises as a result of ambulance chasing.
To try to put a stop to this kind of conduct, Order VII was amended by adding a new sub-rule 1(2).
It is hoped that the plaintiff will therefore, instruct one advocate as he or she will be required to swear an
affidavit …”

That commentary on the purpose of rule 1(2) of Order VII, Civil Procedure Rules is undoubtedly correct
because Juma J was a member of the Rules Committee which promulgated the rule. It seems from the
commentary that the primary purpose of the rule is to avoid claims whether false or not being brought on
behalf of a plaintiff without his express instructions.
The plaint was verified by a five-paragraph affidavit sworn by Julius Arisi, first respondent thus:
“(1) I am one of the plaintiffs herein.
(2) I have been authorised by all my co-plaintiffs to swear this affidavit on behalf of all the plaintiffs
herein.
(3) All the plaintiffs herein have read the contents of the plaint annexed hereto and they have all confirmed
the averments therein to be correct and they have consequently authorised me to swear this affidavit to
confirm that the averments are correct.
(4) Consequently, I make this affidavit to confirm that the averments made in the plaint annexed hereto are
correct.
(5) I make this affidavit conscientiously out of my personal knowledge and out of information given to me
by my co-plaintiffs, believing the same to be true.”

It is true as submitted by the respective counsel that rule 1(2) of Order VII, Civil Procedure Rules is
silent whether each plaintiff in cases where there are numerous plaintiffs should file a verifying affidavit.
Mr Kimani Kiragu, however, contended that since words and expressions in singular include plural and
vice versa as provided by section 3(4) of the Interpretation and General Provisions Act, where there are
numerous plaintiffs, each plaintiff is required to file a verifying affidavit to verify the correctness of the
respective claims. Mr Amuga referred to the case of Patrick Thinguri and others v Kenya Tea
Development Agency Company and another High Court civil case number 26 of 2004 (UR) where the
Page 352 of [2007] 1 EA 348 (CAK)

Superior Court (Nyamu J) in construing rule 1(2) of Order VII Civil Procedure Rules held:
“On the wording of the provision, I see no basis for requiring each plaintiff to verify the plaint because what
is being verified is the correctness of the averments and not the truth. I consider that it is sufficient if one
plaintiff verifies as has happened in this matter. The other plaintiffs may have to individually verify the truth
in court but this is a different matter which does not arise here.
As regards the application of Order 1, rule 12 I see no basis for each plaintiff to have given authority to the
first plaintiff because the first plaintiff is not appearing, pleading or acting for the others. It is only where one
or more of the plaintiff (sic) is doing any of the three functions is authority required under provisions of Order
12, rule (1) from each of the others. This is not the case here because they all have one advocate who is
performing all the functions.”

Rule 12(1) of Order I Civil Procedure Rules referred to, inter alia, permits anyone or more of the several
plaintiffs to authorise any other of them to appear, plead or act for such other in the proceedings. But rule
12(2) of Order I emphatically provides:
“(2) The authority shall be in writing signed by the party giving it and shall be filed in the case.”

We deal first with the ground of non-compliance by the second to 214th respondents with rule 1(2) of
Order VII Civil Procedure Rules. We observe at the outset that the suit filed by the respondents is not a
representative suit. That is to say that it is not a suit filed by Julius Arisi, the first respondent, on behalf
of or for the benefit of the other 213 persons. Had this been a representative suit, then, there would be no
doubt that Julius Arisi would be perfectly entitled to take any action in the suit on behalf of the other
interested persons. Rather, the suit is filed by all the 214 persons through their advocate as authorised by
Order I, rule 1 Civil Procedure Rules. In that case, each of the plaintiffs is personally responsible for the
conduct of his own suit. In our view, none of the 214 plaintiffs has any right to take any steps in the suit
on behalf of any other plaintiff without an express authority in writing. Thus, Julius Arisi cannot take any
step in the suit on behalf of all the other plaintiffs including filing a verifying affidavit unless he has been
expressly authorised by any of the plaintiffs to so act as provided by Order 1, rule 12(1) Civil Procedure
Rules. In this case, Julius Arisi deposes in the verifying affidavit that he has been authorised by all the
co-plaintiffs to swear the verifying affidavit on their behalf and purports to verify the correctness of the
averments in the plaint on behalf of the co-plaintiffs.
The appellant doubted that such an authority indeed existed. The learned Judge was of the view that
the determination of the question whether Julius Arisi had authority from the other co-plaintiffs would
involve calling for evidence. He accepted on the face value the statement of Julius Arisi that he had been
authorised by all the co-plaintiffs. In our respectful view, the learned Judge overlooked rule 12(2) of
Order I Civil Procedure Rules which requires that the authority, if granted, should be in writing and
signed by the person giving it and, further that such written authority should be filed in the case. In the
absence of such a written authority in the case file, the learned Judge erred in holding in effect that Julius
Arisi had sufficiently verified the correctness of the averments in the plaint with the authority of and on
behalf of the second to 214th plaintiffs. The present case can be distinguished from the case of Grace
Page 353 of [2007] 1 EA 348 (CAK)

Ndegwa and others v Honourable Attorney-General civil appeal number 228 of 2002 (UR). In that case,
Grace Ndegwa swore the verifying affidavit on behalf of about 1484 plaintiffs. It was contended in Grace
Ndegwa’s case that the verifying affidavit was defective because there was no authority signed by other
plaintiffs authorising her to act on their behalf. There was however a document signed by most of the
plaintiffs in that case authorising Grace Ndegwa and seven other persons to deal with the advocates for
the plaintiff. This Court found that document to be sufficient authority to Grace Ndegwa by the persons
who had signed it.
In our view, the true construction of rule 1(2) of Order VII, Civil Procedure Rules is that even in cases
where there are numerous plaintiffs, each plaintiff is required to verify the correctness of the averments
by a verifying affidavit unless and until he expressly authorises any of the co-plaintiffs or some of them
in writing, and, files such authority in the case, to file a verifying affidavit on his behalf in which case
such a verifying affidavit would be sufficient compliance with the rule. Moreover, the Grace Ndegwa’s
case (supra) and rule 12(1) of Order I Civil Procedure Rules leave no doubt that one or more of the
co-plaintiffs can validly file an affidavit verifying the correctness of the averments of the plaint on behalf
of the other co-plaintiffs with their authority in writing.
Having come to the conclusion that the verifying affidavit of Julius Arisi was filed without authority
of the other 213 plaintiffs, it follows that the other 213 respondents have not complied with mandatory
provisions of rule 1(2) of Order VII Civil Procedure Rules and that their suit was liable to be struck out
by the Superior Court under rule 1(3) of Order VII Civil Procedure Rules.
The Superior Court however had a discretion. It had jurisdiction instead of striking out the plaint to
make any other appropriate orders such as giving the plaintiffs another opportunity to comply with the
rule.
This Court has jurisdiction to make any order that the Superior Court could have made. We have
considered whether the 213 respondents should be given another opportunity to comply with the rule. We
have perused the pleadings. The appellant pleads that it has terminated the services of 93 of the plaintiffs
and that it has paid 42 of them their dues. The appellant further pleads that the claims of 38 of the
plaintiffs has been settled and that about 5 of them have confirmed in writing that they have no claims
against the appellant. The appellant exhibited payment vouchers to verify that the claims of 42 of the
respondents have been settled. We have also taken into account the fact that the limitation period in
respect of the respondents’ claims being based on contract has not apparently expired. In the
circumstances, it would be prejudicial and costly to the appellant to allow the suit to be prosecuted in the
present form. It is in the interest of justice that the plaintiffs’ advocates now on record should streamline
the claims by filing a fresh suit.
The ground that the suit is an abuse of court process has no merit. The fact that the claims of 38 of the
respondents have been settled and that 5 of the respondents have withdrawn their claims after the
institution of the suit does not render the suit an abuse of the court process. If the suit in respect of some
of the respondents has been adjusted wholly by a lawful compromise, the appellant could have made an
appropriate application in the Superior Court under Order XXIV Civil Procedure Rules.
Page 354 of [2007] 1 EA 348 (CAK)

Regarding the costs of this appeal, it is manifest that the predicament that has befallen the 213
respondents was caused by the mis-apprehension of the law by the respondents’ former advocates. The
213 respondents are not to blame. In the circumstances, the court should not overburden them with costs.
For the foregoing reasons, we allow the appeal in respect of the second to 214 respondents. The order
of the Superior Court dated 13 October 2003, dismissing the appellant’s application dated 20 May 2003,
for striking the suit is set aside and substituted with an order allowing the application to the extent that
the suit of the second to 214th respondents is struck out. The suit of the first respondent is left intact.
There will be no order for costs of this appeal in respect of the second to 214th respondents and the costs
of the appellant’s application dated 20 May 2003. The appeal against the first respondent is dismissed
with costs.
For the appellant:
Mr Kimani Kiragu
For the respondent:
Mr Amuga

Sanghani Investment Limited v Officer in Charge Nairobi Remand and

Allocation Prison
[2007] 1 EA 354 (HCK)

Division: High Court of Kenya at Nairobi

Date of judgment: 2 March 2007
Case Number: 99/06
Before: Wendoh J
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Judicial review – Disputes over land ownership – Whether judicial review to determine land
ownership disputes – Applications where viva voce evidence required.
[2] Judicial review – Filing of affidavits – Whether leave required before filing additional affidavits –
Effect of filing additional affidavits without leave.
[3] Judicial review – Heading in judicial review proceedings – Whether failure to use requisite heading
defective.

Editor’s Summary
The applicant filed a judicial review application seeking orders of certiorari and prohibition against the
respondent in relation to Land Reference number 209/8335. The applicant argued that it was registered as
the owner of the land in 1985 and that it could not vacate the premises since the order to vacate issued by
the respondent was based on the findings of the Ndungu Report which had no force of law. Further, it
argued that it had in any event adversely acquired the land and if the government wanted to acquire it had
to follow the procedure in the Land Acquisition Act.
The respondent however filed a preliminary objection on the grounds that the main application was
fatally defective and bad in law.
Page 355 of [2007] 1 EA 354 (HCK)

Held – Order LII, rule 4(1) provides that the affidavit(s) and statement to be relied upon in support of the
notice of motion are those filed with the chamber summons at the time leave was granted. Under Order
LIII, rule 4(2) of the Civil Procedure Rules, in order to file any further affidavits, leave of the court must
be sought.
The statement and verifying affidavit which accompanied the chamber summons are dated 20
February 2006 and filed in court on 2 February 2006. The applicant’s counsel never made reference to
these two documents at all. The applicant’s affidavit dated 7 March and filed in court on the same date
and which counsel made reliance on in support of the notice of motion was filed without the leave of the
court. It is improperly on record and offends Order LIII, rule 4(1) and (2) of the Civil Procedure Rules
and is struck off. It is noteworthy that once the notice of motion is served on the other parties with the
statement and affidavit(s) filed with the chamber summons, the applicant need not file any other
documents with the notice of motion.
Judicial review orders are issued in the name of the Republic. The intention is to ensure that public
authorities, officials and tribunals treat individuals who come to them fairly and adhere to the law and the
power conferred upon them. This being judicial review proceedings governed by procedure laid down in
Order LIII of the Civil Procedure Rules, it is strictly observed. Hence this notice of motion is not
properly intituled and there is no applicant to move the court for judicial review orders and the
application is incompetent and fatally defective and must be struck out. (Farmers Bus Service and others
v Transport Licensing Appeal Tribunal [1959] EA 719; R v The Chairman of the Electoral Commission
of Kenya ex parte Jotham Mulati Welamondi miscellaneous application number 81 of 2002; Kenton
Kijabe Hill Farmers Co-operative Society v DO Naivasha miscellaneous application number 280 of
1996; The National Governing Council of Africa Peer Review Mechanism v Honourable Professor
Anyang’ Nyong’o and others miscellaneous application number 1124 of 2005 followed).
Section 8 of the Law Reform Act specifically sets out the orders that the court can issue in judicial
review proceedings. The orders are mandamus, certiorari and prohibition. A declaration does not fall
under the purview of judicial review for the simple reason that the court would require viva voce
evidence to be adduced for the court to determine the case on the merits before declaring who the owner
of the land is. Judicial review, on the other hand, is only concerned with the reviewing of the decision
making process and the evidence is found in the affidavits filed in support of the application. (The
Commissioner of Lands v Hotel Kunste Limited [1995] LLR 2588 (CAK) applied).
The underlying dispute herein is ownership of land. Judicial review proceedings is not a forum where
such a dispute can be adjudicated and determined as there would be need for viva voce evidence to be
adduced on how the land was acquired and came to be registered in the name of the applicant; whether
the title is genuine or not. Even if the respondent had filed documents they would be copies that would
not be sufficient to establish authenticity of the title. The original documents would need to be produced
at a full hearing where oral evidence would be adduced. (R v ex parte Karia miscellaneous application
number 534 of 2003 applied).
To buttress the fact that this is indeed a dispute over the ownership of land, the applicant’s counsel
invoked section 38 of the Limitation of Actions Act and
Page 356 of [2007] 1 EA 354 (HCK)
contends that even if the land belonged to the respondent, the applicant has acquired prescriptive rights
by way of adverse possession since the applicant has been in an uninterrupted possession of the land for
over 20 years. One claiming adverse possession would need to prove that allegation by adducing viva
voce evidence but not by way of judicial review. In any event, if the land in question is government land,
the doctrine of adverse possession would not apply because section 41 of the Limitation of Actions Act
provides that the Act does not apply to government land and so section 38 of the Limitations of actions
Act would not apply.
It may indeed be true that the notice that is impugned is irregular or unlawful and an order of
certiorari would be deserved, but it is not in every case that the court will grant an order of judicial
review even though it is deserved. Judicial review being a discretionary remedy will only issue if it will
serve some purpose. So that in this case even though this application was properly before this Court and
the application had merit, the court may not have granted an order of certiorari because it would not be
the most efficacious remedy in the circumstances. Even if the notice under challenge is quashed, the
issue over the ownership of the land still stands. It will still require determination by way of filing
pleadings and viva voce evidence at another forum preferably civil courts.
In obiter – The notice under challenge in these proceedings gave the applicants 14 days to vacate the
disputed land. The letter (notice) was written based on the findings of the Ndung’u Report on land. These
recommendations have not acquired any statutory form. They are mere recommendations and have no
force of law. It is doubtful whether the said Report can be a basis for issuance of such a notice as the one
under attack in this application. (John Mureithi and others v The Honourable Attorney-General
miscellaneous application number 158 of 2005 followed).
Application struck out.

Cases referred to in judgment

East Africa
Farmers Bus Service and others v Transport Licensing Appeal Tribunal [1959] EA 719 – F
John Mureithi and others v Honourable Attorney-General miscellaneous application number 158 of 2005
–F
Kenton Kijabe Hill Farmers Co-operative Society v DO Naivasha miscellaneous application number 280
of 1996 – F
R v ex parte Karia miscellaneous application number 534 of 2003 – AP
R v The Chairman of the Electoral Commission of Kenya ex parte Jotham Mulati Welamondi
miscellaneous application number 81 of 2002 – F
The Commissioner of Lands v Hotel Kunste Limited [1995] LLR 2588 (CAK) – AP
The National Governing Council of Africa Peer Review Mechanism v Honourable Proffessor Anyang’
Nyong’o and others miscellaneous application number 1124 of 2005 – F
Page 357 of [2007] 1 EA 354 (HCK)

Judgment
Wendoh J: This is an application for judicial review brought under Order LIII, rule 3 of the Civil
Procedure Rules. The applicant, Sanghani Investments Limited moved the court seeking the following
orders:
(1) That the Honourable Court do issue an order of certiorari to bring up into the High Court and
quash the order given by the Officer in Charge, Nairobi Remand and Allocation Prison to the
applicant to vacate from its property known as Land Reference number 209/8335 situate in
Nairobi;
(2) That the Honourable Court do issue an order of prohibition directed at the Officer in Charge,
Nairobi Remand and Allocation Prison, its officers, servants and or agents from entering,
removing, demolishing or in any way trespassing on all that parcel of land known as Land
Reference number 209/8335 being the property of the applicant pursuant to an order issued by the
Officer in Charge Nairobi Remand and Allocation Prison dated 9 November 2005 or in any other
manner howsoever enforcing the order against the applicant.
(3) That the Honourable Court do issue a declaration that all that parcel of land known as Land
Reference number 209/8335 situate in Nairobi is legally and rightfully registered in the name of
the applicant.
(4) The Honourable Court do issue a declaration that the property known as Land Reference number
209/8335 in Nairobi was lawfully and legally acquired by the applicant.
(5) That the costs of the application be borne by the respondent.
The above prayers are sought against the Officer in Charge, Nairobi Remand and Allocation Prison. The
application is supported by the affidavit of Vasant D Sanghani dated 7 March 2006. The grounds upon
which the application is based are that the order of the Officer in Charge Remand and Allocation Prison
is unlawful; he acted in excess of his jurisdiction; he flouted principles of natural justice by denying the
applicant a hearing.
It is the applicant’s case that the applicants purchased the suit land from one Rosemary Angaine and
had it registered in their name in 1985 and the applicant has had an uninterrupted occupation of the land
since. The applicants have put up two buildings on the plot which are leased to several tenants. It is on 9
November 2005 that the applicant received a letter from the Officer in Charge of the Industrial Area
Remand and Allocation Prison asking the applicants to vacate the land for reasons that the land had been
acquired irregularly.
The said letter is said to be null and void as it is based on the findings of the Ndungu Report, which
report has no force of law. The applicant claims having adversely acquired the land since they have been
on the land for over 12 years. See section 38(1) of Limitation of Actions Act. It was Mr Okundi’s
submission that if the Government wants to compulsorily acquire the land, then it must follow procedure
under section 6 of the Land Acquisition Act, Chapter 295. Otherwise, the applicant contends that the land
is registered under the Registration of Titles Act and their title is conclusive and indefeasible and can
only be challenged under section 23 of the Registration of Titles Act on account of fraud and
misrepresentation to which the applicant must have been a party.
Page 358 of [2007] 1 EA 354 (HCK)

The notice of motion was opposed and Mr Rotich, counsel for the respondents, relied on a notice of
preliminary objection he had filed and whose grounds of objection are as follows:
(1) That the application is fatally defective and bad in law;
(2) That the application is mis-conceived and incompetent;
(3) The applicant’s supporting affidavit is fatally defective and improperly on record.
Before considering the merits of this application it is proper that I do consider the points raised by the
respondent in the preliminary objection.
The first point that Mr Rotich took up was that the affidavit filed in court on 7 March 2006 and upon
which the notice of motion is predicated is improperly on record and offends Order LIII, rule 4(1) and (2)
of the Civil Procedure Rules as it was filed without the leave of the court and should be struck off. It
therefore leaves the notice of motion naked and there is nothing for the court to look at and consider as
evidence.
In reply, Mr Okundi said that they never filed further affidavits but an affidavit in support of the
notice of motion. The chamber summons herein is dated 20 February 2006 and filed in court on 22
February 2006. It was accompanied by a verifying affidavit of Vasant Devji Sanghani sworn on 20
February 2006 and a statement of the same date.
The notice of motion was filed on 7 March 2006 and was supported by an affidavit of Vasant Devji
Sanghani dated 7 March 2006 and filed in court on same date. In his submissions Mr Okundi said that the
notice of motion is supported by the applicant’s affidavit sworn on 7 March 2006.
I think it is important to set out the provisions of Order LIII, Civil Procedure Rules to appreciate what
documents are supposed to be relied upon by the applicant at the hearing of the motion.
Order LIII, rule 4(1) and (2) provide as follows:
“Copies of the statement accompanying the application for leave shall be served with the notice of motion,
and copies of any affidavits accompanying the application for leave shall be supplied on demand and no
grounds shall, subject as hereafter in this rule provided, be relied upon or any relief sought at the hearing of
the motion except the grounds and relief set out in the said statement.
(2) The High Court may on the hearing of the motion allow the said statement to be amended, and may
allow further affidavits to be used if they deal with new matter arising out of the affidavits of any other
party to the application and where the applicant intends to be allowed to amend his statement or use
further affidavits, he shall give notice of his intention and of any proposed amendment of his statement
and shall supply on demand copies of any such further affidavits.
(3) ...”

Clearly, Order LIII, rule 4(1) provides that the affidavit(s) and statement to be relied upon in support of
the notice of motion are those filed with the chamber summons at the time leave was granted. In this
case, the statement and verifying affidavit which accompanied the chamber summons are dated 20
February 2006 and filed in court on 2 February 2006. The applicant’s counsel never made reference to
these two documents at all.
Page 359 of [2007] 1 EA 354 (HCK)

Under Order LIII, rule 4(2) Civil Procedure Rules, in order to file any further affidavits, leave of the
court must be sought. The affidavit of the applicant dated 7 March 2006 and filed in court on the same
date and which counsel made reliance on in support of the notice of motion was filed without the leave of
the court. It is improperly on record and offends Order LIII, rule 4(1) and (2) Civil Procedure Rules and
is hereby struck off. It is noteworthy that once the notice of motion is served on the other parties with the
statement and affidavit(s) filed with the chamber summons, the applicant need not file any other
documents with the notice of motion.
The other objection raised by the respondents is that the application is brought in the name of the
Sanghani Investment Limited as the applicant but not the Republic as required by law. Sanghani
Investment Limited is the ex parte applicant. Can they also be the applicant? Mr Rotich urged that there
is no applicant before the court and hence no judicial review application before the court. Mr Okundi in
reply to that objection said that the same is raised late in the day and cannot be allowed. Besides, counsel
said that the respondent is a Government Officer, represented by the Attorney-General and thirdly the
court has wide discretion to ensure justice is done. There is a wealth of authority on who should bring
judicial review proceedings before the court. The leading case on this issue is the case of Farmers Bus
Service and others v Transport Licensing Appeal Tribunal [1959] EA 719 where the Court of Appeal of
Eastern Africa held that judicial review applications should be brought in the name of the crown. By the
time of that decision in 1959, prerogative writs (now judicial review orders) were issued in the name of
the crown. On 12 December 1964, upon Kenya’s assumption of Republican status, the place of the crown
was taken over by the Republic and the judicial review orders are now made in the name of the Republic.
Why are these orders issued in the name of the Republic (Crown)?
The intention was to ensure that public authorities, officials and tribunals treat individuals who come
before them fairly and adhere to the law and the power conferred upon them.
The State or Republic has set up a system/mechanism of checking itself and its officials’ excesses.
The Farmers case set out the format which a judicial review application should take. The Farmers Bus
case decision was followed in the case of R v The Chairman of The Electoral Commission of Kenya ex
parte Jotham Mulati Welamondi miscellaneous application 81 of 2002, in which Justice Ringera held
that an application for judicial review has to be brought in the name of the Republic at the instance of the
person affected by the action or omission in issue and the court set out the format as was set out in the
Farmers Bus case. (See Also Kenton Kijabe Hill Farmers Co-Society v DO Naivasha miscellaneous
application 280 of 1996; The National Governing Council of Africa Peer Review Mechanism v
Honourable Proffessor Anyang Nyong and others miscellaneous application 1124 of 2005). There are
many other decisions in which the courts have upheld that position and this being judicial review
proceedings governed by procedure laid down in Order LIII Civil Procedure Rules, it is strictly observed.
I do therefore uphold the respondent’s objection that the notice of motion is not properly intituled. There
is no applicant to move the court for judicial review orders and the application is incompetent and fatally
defective and must be struck out.
Page 360 of [2007] 1 EA 354 (HCK)

The third objection raised by the respondent is that the court has no jurisdiction to grant declarations
that are sought by the applicants in the notice of motion. Prayers 3 and 4 of the notice of motion seek
declarations to the effect that the suit land belongs to the applicant and that the same was lawfully
acquired by the applicant.
In the case of The Commissioner of Lands v Hotel Kunste Limited [1995] LLR 2588 (CAK), the Court
of Appeal described the judicial review jurisdiction as a special jurisdiction which is neither civil nor
criminal and the Civil Procedure Act does not apply. It is governed by sections 8 and 9 of the Law
Reform Act being the substantive law and Order LIII Civil Procedure Rules being the procedural law.
Section 8 of the Law Reform Act provides:
“(1) The High Court shall not, whether in the exercise of its civil or criminal jurisdiction issue any of the
prerogative writs of mandamus, prohibition or certiorari;
(2) In any case in which the High Court in England is, by virtue of the provisions of section 7 of the
Administration of Justice (Miscellaneous Provisions) Act, 1938, of the United Kingdom empowered to
make an order of mandamus, prohibition or certiorari, the High Court shall have power to make a like
order.”

Section 8 of the Law Reform Act specifically sets out the orders that this Court can issue in judicial
review proceedings. The orders are, mandamus, certiorari and prohibition. A declaration does not fall
under the purview of judicial review for the simple reason that the court would require viva voce
evidence to be adduced for the court to determine the case on the merits before declaring who the owner
of the land is. Judicial review on the other hand is only concerned with the reviewing of the decision
making process and the evidence is found in the affidavits filed in support of the application.
The notice that is under challenge in these proceedings gave the applicants 14 days to vacate the
disputed land. The letter (Notice) was written based on the findings of the Ndungu Report on land. As
observed by Justice Nyamu in the case of John Mureithi and others v Honourable Attorney-General
miscellaneous application 158 of 2005, the recommendations in the Ndungu Report have not acquired
any statutory form. They are mere recommendations and have no force of law. It is doubtful whether the
said Report can be a basis for issuance of such a notice as the one under attack in this application.
Mr Rotich urged that the notice raised issues of land ownership, whether the land belongs to the
applicants or the respondent. The applicants exhibited a title and other documents as proof that the land
is registered under the Registration of Titles Act and that title is therefore sacrosanct and indefeasible
unless challenged on grounds of fraud or misrepresentation under section 23 of the Registration of Titles
Act. The respondents did not file any reply nor did they attempt to prove that the land belongs to the
respondent.
Be that as it may, I do agree with the respondents that the underlying dispute herein is ownership of
land. Judicial review proceedings is not a forum where such a dispute can be adjudicated and determined
as there would be need for viva voce evidence to be adduced on how the land was acquired and came to
be registered in the names of the applicant; whether the title is genuine or not. In the case of Rep v ex
parte Karia miscellaneous application 534 of 2003, Justice Nyamu, Justice Ibrahim and Justice
Makhandia held that in cases where the
Page 361 of [2007] 1 EA 354 (HCK)

subject matter or the question to be determined involves ownership of land, and the rights to occupy land,
namely occupation, and disposition, there would be need to allow viva voce evidence and
cross-examination of witnesses which is not available in judicial review proceedings. Even if the
respondents had filed documents, they would be copies that would not be sufficient to establish
authenticity of the title. The original documents would need to be produced at a full hearing where oral
evidence would be adduced.
To buttress the fact that this is indeed a dispute over ownership of land, the applicant’s counsel
invoked section 38 of Limitation of Actions Act Chapter 22 Laws of Kenya, and contends that even if the
land belonged to the respondent, the applicant has acquired prescriptive rights by way of adverse
possession since the applicant has been in an uninterrupted possession of the land for over 20 years. One
claiming adverse possession would need to prove that allegation by adducing viva voce evidence but not
by way of judicial review. In any event, if the land in question is Government land, the doctrine of
adverse possession would not apply because section 41 of the Limitation of Actions Act provides that the
Act does not apply to Government land and so section 38 of the Limitations of Actions Act would not
apply.
It may indeed be true that the notice that is impugned is irregular or unlawful and an order of
certiorari would be deserved, but it is not in every case that the court will grant an order of judicial
review even though it is deserved.
Judicial review being a discretionary remedy will only issue if it will serve some purpose. Halsbury’s
Law of England (4ed) Volume II page 805 paragraph 1505, says of the order of certiorari:
“certiorari is a discretionary remedy which a court may refuse to grant even when the requisite grounds for its
grant exist. The court has to weigh one thing against another to see whether or not the remedy is the most
efficacious in the circumstances obtaining. The discretion of the court being a judicial one must be exercised
on the basis of evidence and sound legal principles.”

So that in this case, even though this application were properly before this Court and the application had
merit, the court may not have granted an order of certiorari because it would not be the most efficacious
remedy in the circumstances. Even if the notice under challenge is quashed, the issue over the ownership
of the land still stands. It will still require determination by way of filing pleadings and viva voce
evidence at another forum preferably the Civil Courts.
In sum, the notice of motion as filed is incompetent and fatally defective. It is hereby struck out. In
addition this Court has no jurisdiction to grant declarations that have been sought nor is the application
merited. Each party to bear its own costs.
For the appellant:
Mr Okundi
For the respondent:
Mr Rotich

Sanitam Services (EA) Limited v Rentokil (K) Limited and another

[2007] 1 EA 362 (CAK)
 Division: Court of Appeal of Kenya at Nairobi
Date of ruling: 28 July 2006
Case Number: 228/04
Before: Bosire, Waki and Deverell JJA
Sourced by: LawAfrica
Summarised by: E Ongoya

[1] Intellectual property – Law governing the subject in Kenya and internationally – Patents – Breach
of patents – Burden of proof of breach – Remedies available for breach of patent.

Editor’s Summary
On 21 January 1999, M/s Sanitam Services (EA) Limited filed suit before the Superior Court against two
defendants, namely, M/s Rentokil (K) Limited and Kentainers Limited. Sanitam claimed in its suit that it
designed and invented a foot operated litter/sanitary disposal bin in 1997 for use in the hygienic storage
and disposal of sanitary towels, tampons, surgical dressings, serviettes and other waste material. It
resolved that it would register a patent for the invention since it was a novelty in the local market. On 4
September 1997, it submitted an application for registration to the Kenya Industrial Property Office
(KIPO) and the application was acknowledged by that office on 7 November 1997. By the time the suit
was heard and determined, KIPO had not processed the application for issuance of the patent. However,
Sanitam had also made an application for registration with the African Regional Industrial Property
Organisation (ARIPO) on 4 September 1998 and on 25 October 1999, they were notified by ARIPO that
a patent number AP773 had been granted on 15 October 1999 to have effect in Botswana, Kenya,
Uganda, Zambia and Zimbabwe. Rentokil denied that the foot-operated bin was a patentable invention
and averred that the same had been in the market for many years before Sanitam claimed its invention.
Kentainers too maintained that there was nothing new in the foot operated bins claimed as an invention
since foot operated bins had been in the market for nearly two decades and it was not patentable. The
High Court found that Sanitam was the holder of a patent number AP773 and it was registered by ARIPO
on 15 October 1999. As regards infringement by Rentokil and Kentainers, the Judge found that there was
no infringement. Sanitam appealed from these findings.
Held – The current trend is to galvanise the international community to move in tandem in protecting all
creations of the human mind by giving the creators property. That way human intellectual creativity will
be stimulated and the fruits of such creativity will be available to the human race, while international
trade in goods and services will be allowed on the basis of a smoothly functioning system of harmonised
law.
An appeal in the Court of Appeal from a trial by the High Court is by way of a re-trial and the principles
upon which the Court of Appeal acts in such appeal are that the court must reconsider the evidence,
evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither
seen
Page 363 of [2007] 1 EA 362 (CAK)

nor heard the witnesses and should make due allowance in that respect – Selle v Associated Motor Boat
Company [1968] EA 123 adopted.
The burden of proof in matters relating to infringement of industrial property rights lie with those who
claim their rights have been infringed. One reason for this position of the law is that, although the
protection of intellectual property rights is imperative to provide an incentive to inventors to develop new
knowledge and thus, over time, confer dynamic gains to society from introduction of new products, it
must be balanced against the danger of reducing current competition through market exclusivity
conferred by the protection and therefore lead to a static distortion in the allocation of resources in the
economy.
An unpublicised application for registration of a patent made to the Kenya Industrial Property
Organisation (KIPO) is not sufficient to protect the applicant for such right.
The most natural relief against infringement of a lawful patent is an injunction. In addition, the owner
of the patent ought in his pleading, to make an election as to the nature of damages desired to be
obtained. It is improper to seek damages and at the same time for an account of the profits made by the
person in breach. (Brooke Bond v Chai Limited [1971] EA 10 followed).
The remedies available for breach of a patent have now been conveniently spelt out in the new Act
and are awardable by an Industrial Property Tribunal or the High Court on appeal.
Appeal partly allowed.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Brooke Bond v Chai Limited [1971] EA 10 – F
Jiwaji v Sanyo Electrical Company Limited [2003] 1 EA 98
Peters v Sunday Post Limited [1958] EA 424
Selle v Associated Motor Boat Company [1968] EA 123 – A

United Kingdom
Dobbs v Grant Junction Waterworks Company [1883] 9 AC 49
Lever v Goodwin [1887] 36 Ch
United Horse-shoe and Nail Company Limited v John Stewart and com [1888] HL 401
Watson Laid law and Company Limited v Pott Cassels and Williamson [1914]

Judgment
Bosire JA: The appeal before us focuses on a branch of law which has scanty litigation and therefore
minimal jurisprudential corpus in this country, but which has exploded on the world stage since the end
of the 19th century when the international community formed two international unions to promote it –
Page 364 of [2007] 1 EA 362 (CAK)

Intellectual Property. The Paris Convention of 1883, sought protection of Industrial Property while the
Berne Convention of 1886 sought protection of literary and artistic works. A secretariat was then
established to administer those conventions and has operated under various names but is currently the
World Intellectual Property Organisation (WIPO). The trend is to galvanise the international community
to move in tandem in protecting all creations of the human mind by giving the creators property rights.
That way human intellectual creativity will be stimulated and the fruits of such creativity will be
available to the human race, while international trade in goods and services will be allowed on the basis
of a smoothly functioning system of harmonised laws. As a member of the international community
Kenya subscribes to the two conventions and has enacted laws for the protection of property rights; the
Trade Marks Act of 1955 (Chapter 506), the Copyright Act, of 1966 (Chapter 130) and the Industrial
Property Act of 1989 (Chapter 509). In the last two decades however, international policies towards
protecting intellectual property rights have seen profound changes and Kenya responded in 2001 by
repealing the Industrial Property Act, and the Copyright Act, and enacting new and comprehensive Acts;
number 3 of 2001 and number 12 of 2001, respectively. The Trade Marks Act, and the regulations
thereunder, were also amended extensively by Act number 4 of 2002 and Legal Notice number 146 of
2003. We are concerned in this matter with the Industrial Property Act and by events that took place in
1997 although the determination of the matter did not come until the judgment of the Superior Court was
delivered on 22 May 2002. The new Act was however enacted on 27 July 2001 and became operational
by Legal Notice number 38 of 2002 on 1 May 2002. It is the original Act therefore that governed the
dispute before the Superior Court and will be applied before us.
On 21 January 1999 M/s Sanitam Services (EA) Limited (Sanitam) filed suit before the Superior
Court against two defendants: M/s Rentokil (K) Limited which had lawfully changed its name in 1998 to
Rentokil Initial Kenya Limited (Rentokil), and Kentainers (K) Limited, which protested that its proper
name was Kentainers Limited (Kentainers). Rentokil in Kenya is one of the 38 or so companies operating
in the world under the parent multinational company Rentokil Initial PLC. It offers various services
including pest control, hygiene and health care. Under its health care division it provides sanitary
disposal services and offers a wide range of sanitary disposal units. These include a step-on unit or foot
operated bin for executive washrooms and hotels. Kentainers on the other hand were in the business of
manufacturing a wide range of bins and containers of different sizes and shapes in accordance with
instructions and moulds received from their customers. Rentokil was their customer and they
manufactured the outer shell of a foot-operated bin christened “Sanitact”.
Sanitam claimed in its suit, through its Managing Director Samson Kamau Nganga, that it designed
and invented a foot-operated litter/sanitary disposal bin in 1997 for use in the hygienic storage and
disposal of sanitary towels, tampons, surgical dressings, serviettes and other waste material. It resolved
that it would register a patent for the inventions since it was a novelty in the local market. On 4
September 1997, it submitted an application for registration to the Kenya Industrial Property Office
(KIPO) and the application was acknowledged by that office on 7 November 1997. It was advised to
continue working on the invention and to make similar applications to other countries. By the
Page 365 of [2007] 1 EA 362 (CAK)

time the suit was heard and determined, KIPO had not processed the application for issuance of the
patent. But Sanitam had also made an application for registration with the African Regional Industrial
Property Organisation (ARIPO) on 4 September 1998 and a year later; on 25 October 1999 they were
notified by ARIPO that a patent number AP773 had been granted on 15 October 1999 to have effect in
Botswana, Kenya, Uganda, Zambia and Zimbabwe. The patent was for a “Foot operated
Sanitary/disposal bin comprising a container (1) closable by a cover (2) with a disposal lid (3) at the top,
with the disposal lid being displaceable, by a foot operated pedal (4) and top, with the (4) and a lift lever
(5), to move between open and closed positions. The bin is defined (sic) such that the user cannot see the
contents of the container (I), waste scavengers cannot have access to the contents, emissions of
unpleasant odour is reduced and the contents cannot spill out if the bin is overturned.”
Sanitam then applied for and was granted leave to amend its plaint to implead the registration of the
patent. The cause of action pleaded in the plaint amended on 16 December 1999 was that:
“6A The defendant during the pendancy of this registration and perpetually after the grant of the said
patent, by themselves, their servants and/or agents have and are wrongfully and without any reasonable
excuse continued to manufacture, supply and pass off to consumers bins similar if not identical to these
patented by the plaintiff.
7A The said acts and conduct of the defendant were and are all material times calculated to deceive and
have in fact deceived and misled at the trade and the general public into the believe (sic) that the said
bins are the plaintiff’s and into buying the defendants said bins as and for (sic) the plaintiff, thus
depriving the plaintiff the right of exclusive use and enjoyment of the said invention.
7B The defendants have threatened and intend, unless restrained by this Honourable court, to repeat their
acts, and conducts aforesaid, and to continue to sell the said bins and to pass them off as such as being
those of the plaintiffs which are not in fact the plaintiffs but those of the defendants.”

It pleaded loss and damage and sought various reliefs as follows:

“(a) A permanent injunction restraining the defendant (sic) from manufacturing and/or using the foot
operated sanitary bin and/or holding out to consumers the use of the bin.
(a)(sic) (i) Permanent injunction to restrain the defendant (sic) whether by themselves their servant’s
agents and/or otherwise however (sic) from:
(ii) Trading in Kenya in any manner likely to cause the business of the defendants to be
confused with the business of the plaintiffs.
(iii) Trading in any manner which does not sufficiently differentiate or distinguish the
defendants business from that of the plaintiffs.
(iv) Using the Patent referred to in paragraph 5A hereof or any other calculated to confuse the
goods sold by the defendants as being goods manufactured or provided by and on behalf of
the plaintiffs or otherwise infringing any of the plaintiffs registered patent.
(v) Otherwise passing off the business of the defendants as and/or the plaintiffs business.
Page 366 of [2007] 1 EA 362 (CAK)
(b) (i) An inquiry as to the damages caused by the defendants acts of passing off/or at the defendants
option, an amount of profits and payment of the sum due thereunder.
(c) Delivery up, repossession and destruction on oath all aforesaid sanitary bins and/or all. (sic).
(d) General damages in addition.
(e) Cost (sic) of the suit.
(f ) Interest thereof (sic) an (sic)(d) at court rates.
(g) Any other of (sic) further relief that the court deems fit.”

Rentokil in its defence denied that the foot-operated bin was a patentable invention and averred that it
had been in the market for many years before Sanitam claimed its invention. Indeed, they pleaded, its
sister company in Malaysia (Rentokil Singapore PTE Limited), had in February 1995 obtained a patent
for the same device in the UK and Malaysia and it was the device imported by Rentokil to combine with
the shell manufactured by Kentainers in order to make and supply foot-operated bins in Kenya. If any
patent was granted to Sanitam therefore, it was erroneous and Rentokil had applied to KIPO for its
revocation. Rentokil sought in a counter-claim that an injunction be issued to stop Sanitam from
manufacturing or using the foot-operated sanitary bin. That counter-claim was however withdrawn
shortly before the hearing of the suit and it was further clarified that the Malaysia company (above), had
obtained a “Certificate of Registration of a design” and not a patent, for the pedal-bin which was the part
imported by Rentokil from Malaysia. The top section of the bin or flap was also imported.
For their part Kentainers maintained that there was nothing new in the foot-operated bin claimed as an
invention since foot-operated bins had been in the market for over two decades and it was not patentable.
It denied the manufacture, supply or sale of any bins contrary to any patent held by Sanitam and sought
the dismissal of the suit.
Upon hearing all the parties, the Superior Court, Onyango-Otieno J (as he then was), found that
Sanitam was the holder of a patent number AP 773 and it was registered by ARIPO on 15 October 1999.
It was not for the court to question the validity of the patent once granted unless an aggrieved party
challenges its issuance through the technical bodies, KIPO and ARIPO, which are charged with the duty
of investigating the invention and certifying its qualification for patent registration. The learned Judge
also noted:
“I have also seen the bin that the plaintiff says it did invent. It is true that it has at least one unique difference
with the other bins and that is that it has a flap opening to receive the waste and covering the contents inside
so that whoever is foot-operating it cannot see the contents inside even when using it and also the odour is
minimised by the invention. There were other bins shown to me but the subject bin was as far as that aspect is
concerned different. I do feel it represented a solution to specific problems and falls under section 6(1) of the
Chapter 509 Laws of Kenya.”

Those findings have not been challenged and do not therefore fall for consideration in this appeal.
The learned Judge further considered whether there was infringement of the said patent by Rentokil
and Kentainers or either of them and found there was not. The suit was dismissed with costs.
Nevertheless, the Judge made findings, and properly so, on the quantum of damages, if any, awardable if
he had found
Page 367 of [2007] 1 EA 362 (CAK)

that there was infringement of the patent. He found there was insufficient evidence to prove any loss and
therefore no basis for making any finding on the monetary loss awardable in the matter. He could only
award KShs 1000 in general damages in the circumstances.
Sanitam was aggrieved by those findings and so filed the appeal before us.
The memorandum of appeal sets out some six grounds but they were argued as two grounds by
learned counsel for the appellant, Mr Robert Mutiso. The grounds are as follows:
“(1) That the learned Judge erred in law and in fact, having accepted and taken cognizance of the
appellant’s patent number AP773 dated 15 October 1999 failed to enforce the appellant’s rights
against the defendants bestowed by such patent.
(2) That the learned Judge erred in law in failing to take into consideration the effect of the appellants
patent registration and consequently failed to enforce the rights emanating therefrom as set out by the
Industrial Property Act Chapter 509.
(3) That the learned Judge erred in law and in fact in holding that on the evidence and documents before
him the appellant had not established breach of patent by the defendant.
(4) That the learned Judge erred in his interpretation of the provisions of section 35(1) and section 36 of
the Industrial Property Act to the facts of this case.
(5) The learned Judge erred in law and in fact in seeking to question whether or not the appellant’s subject
product was an invention and patentable which obligation is placed not on the court but on intellectual
Property Organisations namely KIPO or ARIPO.
(6) The learned Judge erred in failing to grant the relief’s sought by the appellant and in particular on the
issue of quantum of General Damages in failing to rely on the documents of contracts produced.”

In consolidating grounds one, two, three and four Mr Mutiso submitted that there was an admission by
Rentokil and Kentainers in pleadings and in their evidence, that they were manufacturing parts, importing
others and using the foot-operated bin long after Sanitam had applied for registration of the patent. Such
admission fell within the rights of the owner of a patent under section 36 of the Industrial Property Act
(the Act) and is an infringement of them. The section states, inter alia:
“36 The owner of the patent shall have the right to preclude any person from exploiting the protected
invention by any of the following acts:
(a) When the patent has been granted in respect of a product:
(i) Making, importing, offering for sale, selling and using the product; or
(ii) Stocking such product for the purposes of offering it for sale, selling or using the product.”
In Mr Mutiso’s submissions, the rights of the owner do not commence after grant of the patent but on the
date when the application is made for registration. That is so because section 35 of the Act provides in
relevant part:
Page 368 of [2007] 1 EA 362 (CAK)
“35 (1) The applicant or the owner of the patent shall have the following rights.
(a) To be granted the patent, where the relevant requirements under this Act are fulfilled;
(b) After the grant of the patent and within the limits defined in section 16, to preclude any
person from exploiting the patented invention in the manner referred to in section 36.”
The two provisions, he further submitted, tie up with section 39, which in relevant part states:
“39 (1) Subject to sub-section (2), (relating to extension) a patent shall expire at the end of the seventh
year after the date of the filing of the application and may be extended for ten years.”

So that although the patent to Sanitam was granted in October 1999, an application had been made to
KIPO as early as 4 September 1997 which, in his view, was the operative date. The respondents were
however found using the patented bin in September 1998 and they do not deny that they were producing
and supplying it between the date of the application and the date of registration of the patent. Mr Mutiso
further submitted that there were contracts signed with customers on both sides of the case, which
established when the bins were supplied to customers and there was expert evidence called by Sanitam
through Moses Frank Oduori (PW2), a senior lecturer at the department of Mechanical Engineering
University of Nairobi confirming that the sanitary bins exhibited on both sides were of the same type.
The learned Judge therefore, in Mr Mutiso’s submissions, incorrectly evaluated the evidence and in the
process made an erroneous conclusion that there was no infringement of the appellant’s patent rights.
The second ground combined in grounds five and six was that the reliefs sought in the amended plaint
were not considered and further that the refusal to grant damages as sought was erroneous in fact and in
law. Mr Mutiso submitted that the remedy of injunction is a natural relief flowing from a finding of
breach of patent rights and it ought to have been granted. The respondents had continued to market the
product in issue since the filing of the suit in the absence of an interim injunction and the court should
have granted a permanent injunction after establishing that the appellant had a patent. As for damages, he
submitted that there was a prayer for an inquiry as to damages and it was open to the court to make such
an order. There was also evidence from a Consultant Economist, John Anyango Waka (PW3), on the loss
of business arising from the breach of the appellant’s patent rights which was dismissed for inadequacy
on the erroneous view that there was an arithmetic formula for calculation of such damages. Citing
persuasive authority from the House of Lords in two cases:
(1) Watson Laidlaw and Company Limited v Pott Cassels and Williamson [1914], illustrated official
journal (patents) Volume XXXI;
and

(2) The United Horse-shoe and Nail Company Limited v John Stewart and Company [1888] HL 401.
Mr Mutiso submitted that damages in such matters are a matter of fact and that the measure was the
amount of profit which the appellants would have made if they had themselves effected the sales of the
products, deducting a fair percentage in respect of sales due to the particular exertions of the respondents.
The
Page 369 of [2007] 1 EA 362 (CAK)

learned Judge therefore erred in finding that there was no basis for assessment of damages.
For his part, learned counsel for Rentokil, Mr Musyoka agreed with the finding that there was no
infringement of the patent since any infringement ought to be reckoned from the date of registration of
the patent. There would be no rights to protect before such registration and section 39 could not have
been meant or construed to cover third parties who have no knowledge of applications made for
registration. It would be an unjust extension of the provisions of that section. As there was no evidence
from the appellant that the respondents dealt with any of the products in issue after registration of the
patent there was no basis for granting injunctory relief. Furthermore, there was no basis laid for an award
of general damages, that is to say, proof of financial loss by the appellant, and the learned Judge cannot
therefore be faulted for declining to make any award.
Learned counsel for Kentainers, Mr Mogeni similarly supported the learned Judge in his findings on
the two issues raised. In his view, section 9 of the Act can only be read subject to the provisions of
sections 35 and 36. Section 9 relates to an inventive step in relation to the date of filing the application.
The rights of the owner cannot arise on the date of the application but on the date of registration and it
would be a strained construction of the provision to find otherwise. In the amended pleadings, the cause
of action arose during the pendency of registration of the patent (paragraph 6A) and there was no
evidence that Kentainers continued to manufacture any items thereafter. At any rate, he submitted, the
sworn evidence of Kentainers was that they only provided a shell for the bins while the rest of the parts
and devices are imported. There was no patent on the shell and therefore no basis for condemning
Kentainers on any of the alleged activities of passing off, sale, importation or threats to do so. There was
no infringement by the second respondent. As for damages, Mr Mogeni submitted that the common
practice was for the parties to send out interrogatories before the trial to assist the court as to the extent
of infringement. An assessment cannot conveniently be conducted at the trial in court without a record on
the state of affairs before, during and after the infringement. The appeal against Kentainers should
therefore be dismissed.
We have anxiously considered the entire record of appeal and the submissions of counsel. We thank
them for their assistance in the matter which we must say is not without difficulty. The lack of
authoritative case law on the issues raised also means that they will be considered and decided on first
principles.
Our task as an Appellate Court has been restated many times before and we take it from Sir Clement
De Lestang VP in Selle v Associated Motor Boat Company [1968] EA 123 at page 126.
“An appeal to this Court from a trial by the High Court is by way of a re-trial and the principles upon which
this Court acts in such appeal are well settled. Briefly put, they are that, this Court must reconsider the
evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has
neither seen nor heard the witnesses and should make due allowance in that respect. In particular, this Court is
not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed
on some point to take account of particular circumstances or probabilities materially to estimate the evidence,
or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case
generally.”
Page 370 of [2007] 1 EA 362 (CAK)

Subject to those principles, this Court will not lightly differ from the Judge at first instance on a finding
of fact. That was underscored in Peters v Sunday Post Limited [1958] EA 424 at page 429, thus:
“It is a strong thing for an Appellate Court to differ from the finding, on a question of fact, of the Judge who
tried the case, and who has had the advantage of seeing and hearing the witness.
But the jurisdiction ‘(to review the evidence)’ should be exercised with caution: it is not enough that the
Appellate Court might itself have come to a different conclusion.”

We must therefore examine whether the conclusions reached by the learned trial Judge were based on no
evidence, or a misapprehension of the evidence or on application of the wrong principles.
The first issue raised in this appeal was whether there was an infringement of the appellant’s patent
and so when and by whom. In arriving at the conclusion that there was no infringement, the learned
Judge considered the applicable law on the onus of proof and cited section 116 of the Act which
provides:
“116 The burden of proof in matters relating to infringement of industrial property rights shall lie with those who
claim their rights have been infringed and any proceedings using a reversal of the burden of proof shall be
null and void under the provisions of this Act.”
He held the view that the appellant was duty-bound to prove on a balance of probability that there was
infringement and the time it occurred, particularly when the evidence tendered by the respondents was
that they were using or manufacturing similar bins long before the patent was issued. The Judge also
considered the provisions of sections 35 and 36 of the Act, which are reproduced above, and construed
them as affording protection to a person who has been granted a patent in respect of his product. The
patent in this matter was granted on 15 October 1999 which was, on the evidence and the pleading in
paragraph 6A (above), long after the product in issue had hit the market. The suit was filed in January
1999. There could not therefore have been an infringement of a non-existent patent.
The learned Judge then considered whether there was an infringement on basis of the application
made by the appellant for grant of the patent. The evidence is that the application was made to KIPO in
September 1997 and was acknowledged in November 1997. The appellant as found by the Judge, had not
established when the offending products first appeared in the market or were first manufactured. The
Judge however examined the various contracts exhibited by the appellant to show that he was already
supplying his invention, the foot-operated bin which he christened “Monny Bin”, to various organisations
and companies when he discovered late in 1998, that the respondents’ offending product was also in the
market. The earliest of those contracts was in March 1997. On that evidence the learned Judge concluded
as follows:
“These (contracts or agreements) were all for the supply of “Monny Bins” the bin which is now the subject of
this suit. These agreements prove that Monny bin was in the market way back in 1997 long before Patent was
secured to protect the invention. The effect of that is that at that time when it was in the market without any
Patent, any other competitor including the defendants was at liberty to reproduce their own version of a bin
and if the same was similar to “Monny” it could not be said to have infringed any patent as no patent existed
then. Neither could one say it had gone against any application for registration of a patent as the application,
in cases of some agreements, was made later.”
Page 371 of [2007] 1 EA 362 (CAK)

Even if it was material to consider the infringement on the basis of the application therefore, there would
be no infringement of a product which had been exposed to the whole world. In sum, there was no
evidence to establish which product came into the market first, the appellants’ or the respondents’. It
appeared to the learned Judge that the appellant had failed to legally secure what he thought was a
novelty and instead attempted to stop a clear competition that was already in the market at the relevant
time.
We have carefully examined the record of the evidence before us and considered the reasoning and
findings of the learned trial Judge on that issue and we respectfully defer to his conclusions. There must
have been a good reason why Parliament expressly pronounced where the burden of proof lay in matters
of alleged infringement of a patent. One is perhaps that, although the protection of Intellectual Property
rights is imperative to provide an incentive to inventors to develop new knowledge and thus, overtime,
confer dynamic gains to society from introduction of new products, it must be balanced against the
danger of reducing current competition through the market exclusivity conferred by the protection and
therefore lead to a static distortion in the allocation of resources in the economy. That is why the period
of protection for patents has an optimal.
Whatever the reason for that express provision, it is clear that there was no requirement for the
respondents in this matter to prove anything and the learned Judge cannot be faulted for seeking
satisfactory evidence from the appellant to support the averment made in its pleadings. We may observe
that in the new Act there is no provision similar to section 116. On the contrary, section 110 of the new
act appears to have reversed the burden of proof but only where the subject matter involves “a process
for obtaining a product”.
As correctly observed by the learned Judge, the appellant did not prove when the breach of its patent
occurred. The pleading is that it was “during the pendency of registration of the patent.” The evidence is
that the first application to KIPO was made on 4 September 1997 and was acknowledged on 7 November
1997. There is no averment or evidence that the application was publicised to the world in any way and
apparently there was no requirement under the Act that it should be. As we shall shortly see, that
anomaly has now been rectified in the new Act. The first letters written to Rentokil and Kentainers were
dated 11 December 1998 informing them about the application to KIPO and asserting that the two were
manufacturing a similar product. Their reaction, in the pleadings affidavits and oral evidence which the
Superior Court accepted was that their product the “sanitact” bin was in the market long before the
appellant made its application. There were at least eight agreements between Rentokil and various
entitles for supply of the bins which predate the appellant’s application for patent. It was also evident that
the technology Rentokil borrowed from the Malaysian design was in existence since 1994. In the absence
of specific evidence on the date of entry of the product into the market, we have no reason to depart from
the finding by the Superior Court that the respondent’s product was indeed in the market long before the
application made in September 1997. So was the appellant’s product. In the agreements exhibited by the
appellant, there are at least four agreements that predate its application for a patent going back to March
1997. The appellant was marketing the goods without any protection and we say with the Superior
Page 372 of [2007] 1 EA 362 (CAK)

Court that it did so at its own peril. No infringement could be pleaded at that period in time.
The application made to KIPO in September 1997 and acknowledged in November that year was the
last the appellant heard about the matter. There is no evidence, and it is admitted, that KIPO had not
granted any patent before the suit was determined. Could it be said that by dint of section 35 of the Act
there was protection of a patent when none was granted four years after the application or not granted at
all? We think it would be a strained construction of the section to so find and we reject the contention
that the unpublicised application made to KIPO was sufficient to protect the appellant. The section in our
view affords protection to the owner of a patent after grant. Consequently, there could not have been an
infringement of a patent at that period in time either.
The second application for a patent was made to ARIPO on 4 September 1998. It was application
number AP/P/98/01372. That information is in the certificate of grant of patent number AP 773 dated 25
October 1999 but the appellant did not disclose the application made through ARIPO when it filed the
original plaint on 21 January 1999. Instead it sought an injunction against the respondents on the basis of
the earlier application made through KIPO. That injunction was rejected by the court on 16 April 1999
and the rejection was not challenged on appeal at the time or at all. The status quo between the parties
therefore remained until the appellant sought another injunction after amendment of the plaint in January
2000. That application was also rejected by the court on 4 March 2000 and there was no challenge to the
rejection at the time or at all. Once again the status quo between the parties remained until the suit was
determined on 22 May 2002. Can it be said that the infringement of the appellant’s patent was effective
even when unchallenged court orders dismissing injunctory reliefs were operative? We think not.
We said earlier that the applications for a patent were not publicised as we think it should be the case
if any person or entity is to be held responsible for infringements. We are fortified in this view by the
elaborate provision introduced by the new Act in 2001 which clearly addressed a wanting situation. Part
V of the new Act regulates in considerable detail the making of applications, the grant and refusal of
Grant of Patent, and section 42 thereof provides:
“(1) The Managing Director shall publish the application as soon as possible after the expiration of
eighteen months from the filing date or, where priority is claimed, the date of priority.
(2) For the purposes of sub-section (1), in the case of applications claiming priority, the term of eighteen
months shall be construed from the original filing date and in the case of applications with two or more
priority claims, the period shall be construed from the earliest priority dates.
(3) The publication of the patent application shall be effected by publishing the particulars set out in the
regulations, in the Kenya Gazette or in an Industrial Property Journal.” [Emphasis mine.]

The same applies to international applications under Part VI whose publication is covered under section
52, thus:
“Publication under article 21 of the Patent Co-operation Treaty, an international application in which Kenya
is designated for a national patent shall be treated as publication in terms of the provisions of section 42.”
Page 373 of [2007] 1 EA 362 (CAK)

We have said enough, we think, to show that the evidence relating to infringement of the appellant’s
patent in the manner pleaded in its case was tenuous and was properly discounted by the Superior Court.
We have found no proper basis to differ from those findings except on one aspect which we now deal
with.
We stated earlier that there was no cross-appeal on the finding made by the Superior Court that the
appellant had obtained a valid patent from ARIPO in October 1999. The grant of the patent was,
however, neither brought to the attention of the respondents nor pleaded until 16 December 1999 after
leave of the court was obtained. In our view, the appellant would have been entitled to a temporary
injunction to protect the patent until the determination of the suit but we are told one was sought and
refused by the Superior Court at that stage. Ultimately however, the court found for the appellant on that
issue and it was logical that injunctory relief which the appellant sought in the amended plaint should
have been given. In concluding that ground of appeal therefore, we would grant an injunction to last the
life of the patent with effect from 16 December 1999, in terms of prayer (a)(i), (ii), (iii), (iv) and (v) of
the amended plaint. That order accords with the provisions of section 36 of the Act. It is evident from
what we have said that if there was any infringement of the appellant’s patent, then it could only have
occurred after 16 December 1999. Did the appellant, who has the sole onus of proof, place evidence
before the Superior Court to establish the infringement? We are afraid not, and once again we cannot
fault the learned Judge for so finding.
Having so found on the issue of infringement, it becomes unnecessary to examine the hypothetical
issue relating to damages. Suffice it to say that, in principle, the most natural relief against infringement
of a lawful patent is an injunction. In addition, the owner of the patent ought in his pleading, to make an
election as to the nature of damages desired to obtain. It is improper to seek damages and at the same
time for an account of the profits made by the person in breach. As this Court stated in Brooke Bond v
Chai Limited [1971] EA 10 per Spry AP at page 15:
“As I understand it, it has for many years been held that these are alternative remedies. The general rule seems
to be that a successful plaintiff can exercise an election. In Lever v Goodwin [1887] 36 ChD 1 Cotton LJ said:
It is well known that, both in trade-mark cases and patent cases, the plaintiff is entitled, if he succeeds in
getting an injunction, to take either of two forms of relief, he may either say, ‘I claim from you the damage I
have sustained from your wrongful act, or I claim from you the profit which you have made by your wrongful
act’.”

There was no election made in this case. As for the profits recoverable in a successful action, this Court
held in Jiwaji v Sanyo Electrical Company Limited [2003] 1 EA 98 that the profits recoverable are “net
profits” and not “gross profits.” That conclusion flowed from the definition of profit thus:
“The difference between what a thing costs and the larger sum it sells for is not profit if the buying and selling
are attended with expense to the trader, Dobbs v Grant Junction Waterworks Company [1883] 9 AC 49: and
The word ‘profit’ generally speaking means the excess of returns over outlay, but in commercial
agreements its meaning may be and often is restricted to annual pecuniary profits or such profits as would
ordinarily appear in a profit and loss account see “words and phrases defined volume 4.”
Page 374 of [2007] 1 EA 362 (CAK)

We may also add that the remedies available for breach of a patent have now been conveniently spelt out
in the new Act and are awardable by an Industrial Property Tribunal or the High Court on appeal. (See
Part XVI and XVIII of the new Act).
For the reasons we have attempted to set out above, we find no sufficient reason to disturb the
decision of the Superior Court except to the extent stated above and we order that this appeal be and is
hereby dismissed. As the appellant has been partially successful, we order that each party bears its own
costs of the appeal, and in the court below.
For the appellant:
Mr Robert Mutiso
For the first respondent:
Mr Musyoka
For the second respondent:
Mr Mogeni

Shah v Prime Bank Limited

[2007] 1 EA 374 (CCK)

Division: Milimani Commercial Court of Kenya at Nairobi

Date of ruling: 30 October 2006
Case Number: 345/06
Before: Ochieng JA
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Civil procedure – Differences in amount demanded by the defendant.

[2] Securities law – Replacement Charge – Whether this requires to be attested.
[3] Criminal procedure – Factors for the court to consider before ordering a retrial.

Editor’s Summary
The plaintiff filed an application for an interlocutory injunction seeking to restrain the sale of his
property known as Land Reference number 209/4/6 citing among others the fact that the notification of
sale cited an outstanding sum of KShs 115 million while the defendants had only demanded KShs 42
million; the defendant’s statutory power of sale is founded on an invalid security ie a “Replacement
Charge” and that the original title, and therefore the charge instrument, had lapsed. Further the applicant
state that the charge instrument did not have an advocate’s certificate and it had not been executed. He
also stated that he had resigned from Steel Enterprises Ltd, the principal debtor, and thus when the
defendant lent more funds to the company that caused him to be discharged from liability under the
charge instrument and the personal guarantee.
Held – While it is true that the demands for different amounts by the defendant’s advocates and
auctioneers could have caused confusion to the plaintiff, the plaintiff could have sought clarification if he
was so minded. He could even have attempted to remit payment of the lesser sum, in the name of
redemption. Had he done so, and that the defendant persisted in its efforts to sell off the
Page 375 of [2007] 1 EA 374 (CCK)

security. The court would have readily granted an injunction to restrain the defendant. As the plaintiff
has only pointed out the inconsistency without satisfying the court about the manner in which it
prejudiced him, the inconsistency alone would have been insufficient to persuade the court to grant an
injunction.
The figures cited in the notification of sale, which is a creature of rule 15(d) of the Auctioneer Rules,
would appear to be of no consequence in any event (Komassai Plantations Limited v Bank of Baroda
Kenya Limited [2003] 2 EA 539).
It is common ground that the learned Judge issued an order which enabled the Deputy Registrar of the
High Court to execute the Replacement Charge. In making that order, the court was persuaded that the
registered owners of the suit property had declined to execute the security. As the execution of the
Replacement Charge was done pursuant to an order of the court, the plaintiff cannot be allowed to
challenge its validity through this case.
The learned Judge gave the Deputy Registrar authority to sign the Replacement Charge. The said
Judge did not direct that the Deputy Registrar would have to comply with the provisions of section 58 of
the Registration of Titles Act.
In so far as section 58 of the Registration of Titles Act makes reference to “every signature on an
instrument requiring to be registered”, it would appear that the signature of the learned Deputy Registrar
on the Replacement Charge fell within the scope of section 58. The defendant would have to discharge
the burden of proving that the Replacement Charge was an exception to the provisions of section 58(1) of
the Registration of Titles Act. This is even more so when it is considered that by virtue of the provisions
of section 58(3) of the Act, the requirement of attestation is excused only on documents executed by the
President or those executed either under a common seal of a company or those executed by a company to
which Part X of the Companies Act applies.
In this case the defendant obtained an order of the court empowering the Deputy Registrar to execute
the Replacement Charge. That, the Deputy Registrar did. On the face of it therefore, the execution by the
Deputy Registrar has legal sanction and it would therefore appear that by asking another court to
adjudicate on the legality or otherwise of the Replacement Charge may ultimately lead to an assessment
of the decision by the Honourable Ransley J. supposing the court were to go through with that assessment
and possibly hold that it was not in agreement with the decision of the other Judge, would not right
thinking people be entitled to conclude that justice had fallen into disrepute? (Hunter v Chief Constable
[1981] 3 All ER 727 applied).
Until and unless the plaintiff’s application seeking to set aside the earlier orders is finalised, the decision
by the Honourable Ransley J is at the moment at the point where it could either stand or fall. Meanwhile,
there is no doubt that the fact that the validity of the Replacement Charge is at the centre before the court.
Therefore, as that issue is very much alive, the plaintiff has made out a case to warrant an interlocutory
injunction. There is need to safeguard the subject matter of the suit whilst the parties take steps to try and
persuade the court about the validity of the Replacement Charge. It would make no sense to allow the
defendant to proceed to realise the security, whereas the very foundation of the defendant’s statutory
power of sale was being put to test. The most serious ground upon which the said test is based is the
question as to if and how
Page 376 of [2007] 1 EA 374 (CCK)
the security continued to have a life during the period between 2003, when the first title lapsed and the
year 2005 when a new title was issued. (ECCON Construction and Engineering Limited v Giro
Commercial Bank Limited and another [2003] 426 applied).
Application allowed.

Cases referred to in ruling

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
ECCON Construction and Engineering Limited v Giro Commercial Bank Limited and another [2003]
426 – AP
Komassai Plantations Limited v Bank of Baroda Kenya Limited [2003] 2 EA 535

United Kingdom
Hunter v Chief Constable [1981] 3 All ER 727 – AP

Ruling
Ochieng JA: The plaintiff is seeking an interlocutory injunction to restrain the defendant from selling,
disposing of, alienating, transferring, advertising for sale and/or any other dealing with his property
known as Land Reference number 209/4/6.
The grounds upon which the applications are founded are as follows:
(a) The notification of sale cites the outstanding sum as KShs 115 715 174 whilst the defendant’s
advocates had only demanded KShs 42.0 million.
(b) The defendant is purporting to exercise a statutory power of sale, which is founded on an invalid
security. The said security is a “Replacement Charge”, which is neither known in law, or if it does
exist, was not valid in any event herein as it came into being after the original title vested in the
plaintiff had lapsed. The said original tile lapsed in 2003, and the plaintiff avers that the charge
instrument lapsed too, for there was then no title to which it could found an existence.
By the time that a new title was issued in 2005, the plaintiff contends that he never executed any
charge instrument in relation thereto.
(c) In any event, the charge instrument, which the defendant has invoked so as to realise the security,
was said to be invalid not only because the plaintiff had not executed it, but also because it did not
contain an advocate’s certificate pursuant to the provisions of section 69(1) of the Transfer of
Property Act.
(d) Meanwhile, the plaintiff did notify the defendant in 1997 that he was no longer a director of Steel
Enterprises Limited, who was the principal debtor. He had also told the defendant that his property
would no longer be security for lending to that company. Therefore, when the defendant later lent
more funds to the company, the plaintiff submits that that caused him to be discharged from
liability, both under his personal guarantee, as well as under the charge instrument.
Page 377 of [2007] 1 EA 374 (CCK)

Those grounds have been summarised by me, from the submissions made by the plaintiff’s advocates,
and I sure hope that the summary has done justice to counsel’s industry.
There is no dispute about the fact that in May 1995, a company called Steel Enterprises Limited
applied for and was granted banking facilities for a sum of KShs 42 million. It is also common ground
that the security for the said facilities was a legal charge registered over the property Land Reference
number 209/4/6, which will hereinafter be cited as “the suit property.”
The suit property had been registered to the plaintiff and his brother, Pravinchandra Narshibhai Shah,
as tenants in common, with equal shares. The title was in the nature of a long-term lease of 99 years,
from the Government of the Republic of Kenya, commencing from 1904. In effect, the title which the
plaintiff and his brother had, expired in 2003.
It is for that reason that the plaintiff submitted that the title lapsed in 2003, together with the legal
charge.
When a new title instrument was issued in 2005, the defendant moved to court and obtained orders
which enabled the Deputy Registrar of the High Court to execute the Replacement Charge. In other
words, the plaintiff and his brother did not execute the Replacement Charge Instrument. There is no
dispute about that fact or about the fact that there was no attestation to the signature of the learned
Deputy Registrar.
Apart from those shortcomings, as perceived by the plaintiff, the defendant thereafter lent more funds
to the company, Steel Enterprises Limited. Due to that development, the plaintiff says that even if the
Replacement Charge were deemed valid, the action of giving more funds to the company, without his
knowledge or authority served to discharge both the guarantee as well as the Replacement Charge.
It was on those grounds that the plaintiff sought an injunction.
In response to the application, the defendant first took issue with regard to the plaintiff’s legal status.
It was submitted that as one-half of the persons registered as tenants in common, the plaintiff lacked
authority to bring this suit in his sole name. Regrettably, the defendant thereafter failed to provide me
with any material to back its contention that the plaintiff had no legal right to bring this suit alone, (as
opposed to doing so together with his brother). I will therefore not express any definitive views on the
matter, for now, and do leave the issue for adjudication by the trial court.
However, suffice it to say that the provisions of section 22(4)(b) of the Registration of Titles Act,
appears to recognise the rights of each person to a tenancy in common, to a separate certificate for his
undivided share. Whether or not that would also entitle him to bring a suit, in his own name, in relation
to the property to which he was one of the tenants in common, is not at the moment clear to me.
As the defendant is the one that was trying to persuade me in that regard, I must and do hold, that for
now, it has not satisfied me that the plaintiff lacked the requisite authority to bring this action in his own
name.
As regards the inconsistencies in the sums demanded by the statutory notice and by the notification of
sale, it is clear that the same could easily cause a
Page 378 of [2007] 1 EA 374 (CCK)

charger to be confused. He would not know whether to pay the sum of KShs 42 million as demanded by
the chargee’s advocates, or the sum of KShs 115 million as demanded by the auctioneers.
When it is borne in mind that both the advocates as well as the auctioneers were purportedly
instructed by the defendant, it is easy to understand why a chargee would not be sure about the sums
which he needed to pay, if he was minded to redeem the security.
However, the plaintiff herein could have sought clarification, if he was so minded. He could even
have attempted to remit payment of the lesser sum, in the name of redemption. Had he done so, and then
the defendant persisted in its efforts to sell off the security, I would like to think that the court would
have readily granted an injunction to restrain the defendant.
As the plaintiff has only pointed out the inconsistency, without satisfying the court about the manner
in which it prejudiced him, I hold the view that the inconsistency alone would have been insufficient to
persuade the court to grant an injunction.
In Komassai Plantations Limited v Bank of Baroda Kenya Limited [2003] 2 EA 535 at page 539, the
Honourable Nyamu J held as follows:
“The Auctioneers Act number 5 of 1996 has expressed its general purpose as follows –’An Act of Parliament
to consolidate and amend the law relating to auctioneers, to provide the licensing and regulations of the
business and practice of the business and practice of auctioneers and for related purposes.’ In the face of
this very clear objective of the Act, I hold that providing in the subsidiary legislation made under the
Auctioneers Act for 45 days’ notice before the sale, is ultra vires the Auctioneers Act and its general purpose
as expressed above, and therefore rule 15(d) of the Auctioneers Rules made under the Act is a clog on the
power of sale, and violates section 69A and 69B of the Transfer of Property Act, and section 65 and 74 of the
Registered Land Act (Chapter 300) in so far as it purports to provide for an additional notice under the
Auctioneers Act.”[Emphasis mine.]

The learned Judge went ahead to declare rule 15(d) of the “Auctioneers Rules” void and a “nullity”.
For those reasons, the figures cited in the notification of sale, which is a creature of rule 15(d), would
appear to be of no consequence, in any event.
Meanwhile, as regards the absence of the plaintiff’s signature on the Replacement Charge, the
defendant sees absolutely nothing wrong with it, because the instrument was executed by the learned
Deputy Registrar, pursuant to an order issued by the Honourable Ransley J in High Court civil case
number 529 of 2005.
It is common ground that the learned Judge issued an order which enabled the Deputy Registrar of the
High Court to execute the Replacement Charge. In making that order, the court was persuaded that the
registered owners of the suit property had declined to execute the security.
As the execution of the Replacement Charge was done pursuant to an order of the court, the defendant
submitted that the plaintiff cannot be allowed to challenge its validity through this case.
Having given due consideration to the issue, I must say that it was taxing. However, I have come to
the conclusion that the defendant is right. I say so, firstly because the Honourable Ransley J was at the
time he made the orders in High Court civil case number 529 of 2005, a Judge of concurrent jurisdiction.
Page 379 of [2007] 1 EA 374 (CCK)

He was asked to give orders through which the Deputy Registrar could derive authority to execute the
Replacement Charge. Having considered the matter, the learned Judge gave to the Deputy Registrar,
authority to sign the Replacement Charge. In my understanding, the said learned Judge did not direct that
the Deputy Registrar would have to comply with the provisions of section 58 of the Registration of Titles
Act.
For that reason, the defendant submits that the Deputy Registrar was right to have executed the
Replacement Charge, as he did, without it being attested.
Section 58(1) of the Registration of Titles Act provides, in the part relevant to this matter, that:
“Every signature to an instrument requiring to be registered and to a power of attorney whereof a duplicate or
an attested copy is required to be deposited with the registrar shall be attested by one of the following
persons.”

Insofar as the section makes reference to “every signature on an instrument requiring to be registered”, it
would appear to me that the signature of the learned Deputy Registrar, on the Replacement Charge, fell
within the scope of section 58. Therefore, although I do not purport to be making a final decision on the
matter, it does appear to me that the defendant would have to discharge the burden of proving that the
Replacement Charge was an exception to the provisions of section 58(1) of the Registration of Titles Act.
I believe that that is even more so when it is considered that by virtue of the provisions of section 58(3)
of the Act, the requirement for attestation is excused only on documents executed by the President or
those executed either under a common seal of a company, or those executed by a company to which Part
X of the Companies Act applies.
In arriving at the foregoing finding, I have not in any way whatsoever cast any aspersions on the
integrity of the decision of the Honourable Ransley J. Indeed, as I have already intimated, I have no
jurisdiction to purport to revisit that decision.
In the case of Hunter v Chief Constable [1981] 3 All ER 727 at 729, Lord Diplock expressed himself
thus:
“My Lords, this is a case about the abuse of the process of the High Court. It concerns the inherent power
which any court of justice must possess to prevent misuse of its procedure in a way which, although not
inconsistent with literal application of its procedure rules, would nevertheless be manifestly unfair to a party
to litigation before it, or would otherwise bring the administration of justice into disrepute among
right-thinking people. The circumstances in which abuse of process can arise are very varied; those which
give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were
to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of
circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.”

Having given consideration to the matters which were before the House, Lord Diplock went on to hold as
follows, at page 733:
“The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice
for the purposes of mounting a collateral attack on a final decision against the intending plaintiff which has
been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff
had a full opportunity of contesting the decision of the court by which it was made.
Page 380 of [2007] 1 EA 374 (CCK)
The proper method of attacking the decision by Bridge J … would have been to make the contention that
the Judge’s ruling that the confession was inadmissible had been erroneous, a ground of appeal …”

In this case, the defendant did obtain an order of the court, empowering the Deputy Registrar to execute
the Replacement Charge. That, the Deputy Registrar did. On the face of it therefore, the execution by the
Deputy Registrar has legal sanction. And it would therefore appear that by asking another court to
adjudicate on the legality or otherwise of the Replacement Charge, may ultimately lead to an assessment
of the decision by the Honourable Ransley J.
Supposing I were to go through with that assessment, and possibly hold that I was not in agreement
with the decision of my learned brother, would not right-thinking people be entitled to conclude that the
administration of justice had fallen into disrepute? I am sure they would.
But then again, it has to be appreciated that Lord Diplock’s views were made in relation to decisions
made after the intending plaintiff in the subsequent proceedings, had had a full opportunity of contesting
the decision, in the court by which it was made.
It is common ground that in this case the plaintiff has mounted a challenge against the decision of the
Honourable Ransley J. Indeed, the defendant had, on 5 July 2006, filed an application to stay the
proceedings in this case, on the grounds that the plaintiff had already lodged an application to set aside
the orders made in High Court civil case number 528 of 2005 (OS).
In the circumstances, until and unless the plaintiff’s application, seeking to set aside the earlier orders
is finalised, the decision by the Honourable Ransley J is at the moment at the point where it could either
stand or fall.
Meanwhile, there is no doubt about the fact that the validity of the Replacement Charge is at the
centre of the case before me. Therefore, as that issue is very much alive, it is my considered view that the
plaintiff has made out a case to warrant an interlocutory injunction.
In the case of ECCON Construction and Engineering Limited v Giro Commercial Bank Limited and
another [2003] EA 426 at page 432, the Honourable Njagi J said:
“The validity of this mortgage instrument is a very serious matter which goes to the very root of the entire
transaction. For, if the instrument is invalid for whatever reason and it falls, all the transactions fall with it.”

Those words apply with equal force to this case. It is for that reason that I believe there is need to
safeguard the subject matter of the suit, whilst the parties take steps to try and persuade the court about
the validity of the Replacement Charge. It would make no sense, in my view, to allow the defendant to
proceed to realise the security, whereas the very foundation of the defendant’s statutory power of sale
was being put to the test. And to my mind, the most serious ground upon which the said test is based, is
the question as to if and how the security continued to have life during the period between 2003, when
the first title lapsed; and the year 2005 when a new title was issued.
I say that that is the most serious issue mainly because the defendant did not respond to it when
opposing the plaintiff’s application.
Page 381 of [2007] 1 EA 374 (CCK)

For the reasons spelt out above, I do now grant an injunction to restrain the defendant from selling,
disposing of, alienating, transferring, advertising for sale or in any other manner dealing with the suit
property Land Reference number 209/4/6. This order shall remain in force until either this suit is heard
and determined or alternatively until such time as High Court civil case number 529 of 2005 (OS) is
determined, whichever is earlier. By linking the order to the other case, I do appreciate the fact that if the
order by the Honourable Ransley J were to be upheld, that would have some bearing on this case, but
would not necessarily resolve all the issues raised herein.
For that reason, but without making any orders in that regard, the parties are invited to consider
whether or not it might be appropriate to consolidate the suits, at some point in time.
For now, the costs of the application dated 28 June 2006 are awarded to the plaintiff.
For the appellant:
Information not available
For the respondent:
Information not available

Tanzania Standard (Newspapers) Ltd v Ling’ande

[2007] 1 EA 381 (CAT)

Division: Court of Appeal of Tanzania at Dar-Es-Salaam

Date of judgment: 2 February 2005
Case Number: 99/02
Before: Nsekela, Msoffe and Kaji JJA
Sourced by: LawAfrica
Summarised by: H Majamba

[1] Labour law – Summary dismissal – Whether respondent’s claim for general damages was proper –
Whether trial Judge made proper assessment of quantum.

Editor’s Summary
The respondent was summarily dismissed from employment by the appellant. He filed a suit claiming for
a declaration for wrongful dismissal and damages. The respondent conceded that the termination was
unlawful. The High Court awarded the respondent TShs 50 000 000 as claimed but noted that the amount
was low due to the devaluation of the Tanzanian shilling.
The appellant appealed arguing that the High Court Judge did not apply the correct principle in
awarding general damages.
Held – The predominant principle in awarding damages is restitutio in integrum - restoration to the
previous condition or the status quo. The court held further that a claim of general damages may not have
to be specifically pleaded. In law, only special damages should be specifically claimed and proved. This
being a claim for general damages, a specific amount did not have to be pleaded and proved. Thus, the
Judge was not duty bound to tie himself down to the claimed sum of TShs 50 000 000 in assessing
damages. It was presumptuous to assume that the respondent could have worked or lived to retirement.
Respondent is entitled to nominal wages, the equivalent of three year’s salaries on the
Page 382 of [2007] 1 EA 381 (CAT)

basis of his monthly salary at the time of removal from office. Zuberi Augustino v Mugabe [1992] TLR
137; Jewelowski v Propp (3) [1994] 1 All ER 483 and Southern Highlands Tobacco v Mc Queen [1960]
EA 490 referred to.
Appeal allowed.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Southern Highlands Tobacco v Mc Queen [1960] EA 490
Zuberii Augustino v Mugabe [1992] TLR 137

United Kingdom
Jewelowskii v Propp (3) [1944] 1 All ER 483
Valentine M Eyakuze v The Editor of Sunday News and others [1974] LRT

Judgment
Msoffe JA: The respondent was employed on 8 August 1983 by the appellant corporation as a Clerk
Grade 1. By 1996 he had risen to the position of an Acting and Circulation Manager. On 11 July 1996, he
was summarily dismissed from the employment. Following the dismissal he filed a suit in the High Court
claiming:
(i) A declaration that the dismissal was wrongful; and
(ii) Damages for wrongful dismissal.
The High Court, Kyando, J held that the dismissal was wrongful in that the respondent was not given the
opportunity to be heard before being dismissed. As for damages, the learned Judge held as follows:
“As for the relief of damages; the plaintiff has claimed TShs 50 million. To my mind this is low in view of the
plummeting value of our shilling. The plaintiff was only in his 30’s when he was wrongfully dismissed and no
clear valid reason has been shown or established for the dismissal. That is why I say the TShs 50 million he
claims is low. However, a party is bound by his own pleadings. I award him this amount of TShs 50 million
damages for wrongful dismissal from employment.”

This is an appeal against the above quoted findings and conclusions of the trial Judge. There are two
grounds of appeal which read as follows:
(1) That the High Court erred in law and fact in holding that the respondent’s claim for TShs 50
million is low in view of the plummeting value of our shilling; and
(2) The High Court erred in applying a wrong principle of law in awarding general damages in the
sum of TShs 50 million which is inordinately high.
In as far as the appeal is concerned, there is no doubt that liability is not disputed. The appellant admits
liability. The crucial question lies on the quantum. The appellant’s feeling is that the award of the sum of
TShs 50 million is on the high side indeed; This was the thrust of the oral submission made before us by
Mr Fungamtama, learned advocate for the appellant. On the other hand,
Page 383 of [2007] 1 EA 381 (CAT)

Mr Kalolo Bundala learned advocate for the respondent, was of the strong view that the above award is
fair. According to him the award was based on principles known in law, He did not elaborate on what
those principles are. Also, he went on to urge that the award reflected the truth regarding the appellant’s
age and the low value of the shilling.
There is also no doubt that the respondent’s employment with the appellant was one of contract.
Clause 7 of the letter of employment which was signed by both parties on 20 August 1983, and
eventually exhibited in court, read as follows:
“Termination of your appointment during the probationary period will require one month’s notice on either
side, or one month’s salary in lieu of notice. After confirmation, such termination will require one month’s
notice or one month’s salary in lieu.”

It will be clear here, therefore, that either party could terminate the contract subject, of course, to the
above clause. Also, although the contract did not say so in so many words, it was expected that the
respondent’s termination would also be subject to being given the opportunity to be heard in line with the
principles of natural justice. The parties to this appeal are well aware of this principle and that was why
Mr Fungamtama submitted before us that there was no dispute that the respondent’s dismissal was
wrongful in that the said respondent was not given the opportunity to be heard.
Yet again, there is no dispute that although the suit was based on contract, the respondent suffered,
and was therefore entitled to damages. It is no wonder Mr Kalolo had this to say on the point:
“This was a claim in contract but the plaintiff had suffered damages.”

Likewise, Mr Fungamtama said as follows:

“We concede that the appellant was wrongly dismissed. Respondent is thus entitled to some damages, but
damages which will only put him in the position as he was before termination. To me nominal damages of 1
million would be adequate.”

As correctly observed by Kyando J in the judgment, the subject of this appeal, the usual remedy for
wrongful termination, retirement, or dismissal (as was the case here) is damages. Indeed, section 73 of
the Law of Contract Ordinance, Chapter 433, is, to a certain extent, underscoring this same point. The
section reads:
“73 (1) When a contract has been broken, the party who suffers by such breach is entitled to receive,
from the party who has broken the contract, compensation for any loss or damage caused to him
thereby, which naturally arose in the usual course of things from such breach, or which the
parties knew, when they made the contract, to be likely to result from the breach of it;
(2) Such compensation is not, to be given for any remote and indirect loss or damage sustained by
reason of the breach;
(3) When an obligation resembling those created by contract has been incurred and has not been
discharged, any person injured by the failure to discharge is entitled to receive the same
compensation from the party in default as if such person had contracted to discharge it and had
broken his contract;
(4) In estimating the loss or damage arising from a breach of contract, the means which existed of
remedying the inconvenience caused by the non-performance of the contract must be taken into
account.”

We may also add here that the predominant principle in awarding damages is restitutio in integrum.
Page 384 of [2007] 1 EA 381 (CAT)

Before deciding on the respondent’s entitlement in the matter we wish to make one observation. A
look at paragraph 3 of the plaint, and the prayers thereof, will show that the plaintiff (respondent herein)
specified the amount which he claimed as damages. The plaint, which we may mention here in passing
that it was drawn and filed by counsel, ought not to have specified so. A mere statement of a claim of
damages would have served the purpose. In the case of Valentine M Eyakuze v The Editor of Sunday
News and others [1974] LRT number 49 at page 218.
Mfalila J (as he then was) quoted a passage from Gatley On Libel and Slander paragraph 1008 at page
452 thus:
“The plaintiff should close his statement of claim (in the plaint) simply with the words ‘and the plaintiff
claims damages against the defendants and each of them’. The plaintiff is not bound to specify the amount
which he claims as damages, nor should he do so, if he claims a small sum he is exposed at the trial to the
suggestion that he does not value his character highly while if he claims a large sum, there is room for the
taunt that he is after money.”

We may also mention here that the claim of damages in the suit was in the nature of general damages. In
Black’s Law Dictionary (7ed) at page 394 general damages are defined as follows:
“Damages that the law presumes follow from the type of wrong complained of. General damages do not need
to be specifically claimed or proved to have been sustained.” [Emphasis mine.]

Thus, the claim of general damages in this matter did not have to be specifically pleaded and proved, as
already stated above. In law, only special damages would be required to be specifically claimed and
proved.
As already stated, the cardinal principle in awarding damages is restitutio in integrum. In the above
mentioned law dictionary the above principle is defined at page 1315 thus:
“restoration to the previous condition or the status quo.”

The crucial question in this appeal calling for our consideration and decision, is whether the reasoning of
the Judge was sound in awarding the sum of TShs 50 million. Put differently, was the award too high, or
just enough, to restore the respondent’s status and position in life both of which were damaged by the
wrongful dismissal?
In justifying the claim of TShs 50 million the respondent testified and stated:
“I am demanding 50 million because I was terminated from work when I was only 32 years. I could have
worked and earned more than that. I have also been stigmatised and my family has also been affected because
they were depending on me. I have been stigmatised and I am not able to work, My record shows that I was
summarily dismissed.”

It will follow from the above piece of evidence that although the respondent did not have to particularise
his claim of damages, he mainly based the claim on two factors ie age and stigma.
There are two other points which could be mentioned in relation to the above evidence:
One, assuming age was an important point it was never pleaded, in the first place. A look at the plaint
will bear testimony to this fact. Thus it was uncalled
Page 385 of [2007] 1 EA 381 (CAT)

for to introduce the point in evidence. In the same vein, it was unnecessary for the Judge to take the point
into account in determining damages.
Yet again, even assuming that the point was an important one, there was no guarantee that the
respondent could have worked and/or lived to retirement age. It was therefore too presumptuous on the
part of the Judge to assume that the respondent could have worked for another 16 years or so.
Two, the question of stigma could be discerned from a reading of paragraph 12 of the plaint in which
the respondent claimed to have suffered “loss of esteem and serious injury and anguish” as a result of the
wrongful dismissal. And at the trial he led evidence on stigma as shown in the above quoted passage.
Thus, the Judge was in error in not considering the point in the judgment. In the circumstances, we are
entitled to re-appraise the evidence under rule 34(1) and draw inferences of fact. On our re-evaluation of
the evidence we are satisfied that the respondent established the point. In any case, he was not
contradicted by the appellant on the issue of stigma.
We now move forward to consider the other points mentioned by the Judge in determining damages,
we start with the issue of the plummeting value of the shilling. We think that the Judge ought not to have
considered it in the context and manner in which he did. We say so because the point was not pleaded. In
that regard no evidence was led in court on the point. We appreciate Mr Kalolo’s point that the point is
an important one in the light of this Court’s decision in Zuberii Augustino v Mugabe [1992] TLR 137
where it was stated, inter alia, as follows:
“We hold it as a fact needing no proof that the value of our shilling has been going down very fast.”

We hope Mr Kalolo will agree with us that Mugabe’s case is distinguishable from the present one in that
in the former the point was pleaded. Indeed, in that case an amount of TShs 1 000 000 was pleaded ”to
off-set the devaluation of the shilling.”
The other point is the assertion by the Judge that there was nothing he could do to disturb the claim of
damages of TShs 50 million because “a party is bound by his own pleadings”. We agree with the Judge
that under normal circumstances a party is bound by his/her own pleadings. However, as already stated,
this being a claim of general damages a specific sum did not have to be pleaded and proved. Thus, the
Judge was not duty bound to tie himself down to the claimed sum of TShs 50 million in assessing
damages. He could have awarded any amount he deemed fit and just in the circumstances of the case.
There is yet another important point in this matter. This relates to the whole question of mitigation of
damages. Apparently, the point did not feature in the evidence. And neither did the Judge consider it in
the judgment.
The respondent did not lead any evidence to show whether he took any steps to mitigate damages by
seeking employment elsewhere. At best, he simply said that he was self-employed, without more. With
respect, he ought to have gone further and state whether he tried to mitigate damages by seeking
alternative employment elsewhere after the dismissal. In the case of Jewelowskii v Propp (3) [1944] 1 All
ER 483 (quoted in Southern Highlands Tobacco v Mc Queen [1960] EA 490 at page 494) it was stated,
inter alia, as follows:
“That in a case of wrongful dismissal the injured person cannot sit and twiddle his thumbs and claim damages
from the person who has wrongfully dismissed him. He
Page 386 of [2007] 1 EA 381 (CAT)
must seek employment elsewhere, and if he obtains it elsewhere, he must reduce the damages claimed from
the person who has to pay and the duty of a person to minimise his damages is a proposition which is well
known and cannot be controverted ...”

In the end, we have to decide on what amount of damages we think is the respondent’s entitlement in the
matter. Taking into account that it was presumptuous to assume that the respondent could have worked
and/or lived to retirement age; and the stigma resulting from the wrongful dismissal; we think, and
accordingly hold that his entitlement is nominal damages in which we order a payment of the equivalent
of three years salaries pegged on his monthly salary at time of dismissal.
The above sum will carry interest at court rate from the date of delivery of this judgment to the date of
payment in full. Given the nature of the case, we are not making an order for costs.
We accordingly allow the appeal to the above extent.
For the appellant:
Mr Fungamtama
For the respondent:
Mr Kalolo Bundala

Thande v Housing Finance Company of Kenya Limited

[2007] 1 EA 386 (CCK)

Division: Milimani Commercial Court of Kenya at Nairobi

Date of ruling: 17 November 2006
Case Number: 336/03
Before: Ochieng JA
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Civil procedure – Appellate jurisdiction of the court – Whether an application for setting aside an
injunction order invokes the appellate jurisdiction of the court.

Editor’s Summary
On 5 July 2000, this Court delivered a ruling issuing an injunction to restrain the defendant from
realising the security pending the hearing and determination of the plaintiff’s intended appeal. The
defendant however filed this application seeking to discharge the orders for injunction. The plaintiff also
filed a preliminary objection arguing that the defendant’s application was fatally defective as the court’s
jurisdiction was invoked in error. The defendant argued that when the court granted the injunction
pending the intended appeal, the court was exercising an appellate jurisdiction. Hence when the
defendant thereafter brought the application for discharge of the injunction through the court’s original
jurisdiction, the application was rendered fatally defective.
Held – The party who invoked the preliminary objection has not satisfied the court that the preliminary
objection was well founded.
Page 387 of [2007] 1 EA 386 (CCK)

An appeal would ordinarily be lodged in a court whose jurisdiction was superior to that of the court
which passed the verdict that was being challenged. In effect, the High Court would ordinarily constitute
an Appellate Court over decisions emanating from courts subordinate to it and also from courts-martial.
It is therefore difficult to comprehend how the defendant would have been expected to invoke the court’s
appellate jurisdiction in relation to a decision of a Judge of concurrent jurisdiction. One Judge could not
sit on an appeal over another Judge of concurrent jurisdiction, or over his own decision.
It would therefore be erroneous for any party to entertain the notion that by seeking to discharge an
injunction, he or any party seeking the said discharge was invoking the court’s appellate jurisdiction. If
the court were to be persuaded to discharge such orders as it may have granted earlier, the court’s
authority to do so would emanate from Order XXXIX, rule 4 of the Civil Procedure Rules.
When seeking the discharge, or variation or setting aside of an injunction, the party who is dissatisfied
with it is told that he can do so by making an application. The rule does not state that he has to lodge an
appeal. Therefore, when the court is asked to adjudicate on such an application, the court would not be
constituting itself as an Appellate Court. Furthermore, it would be expected that the party who is asking
that the injunction be discharged or varied or set-aside would not be challenging the validity of the order
itself. If he were to assert that the court which gave the injunction erred in doing so, the party may be
deemed to be proceeding as if he were appealing against the decision to award the injunction. So if the
said party could not show that he was seeking a review (in such circumstances) it might be possible for
his efforts being curtailed by the kind of objection which was raised herein. But the defendant does not
purport to challenge the accuracy of the decision to grant the injunction. Instead the defendant appears to
be doing no more than drawing the court’s attention to the failure by the plaintiff to fulfill the terms and
conditions which formed the foundation for the injunction.
Preliminary objection overruled.

No cases referred to in ruling

Ruling
Ochieng JA: On 5 July 2006, this Court delivered a ruling on an application which had been lodged by
the plaintiff. By the said ruling, the court issued an injunction to restrain the defendant from realising the
security pending the hearing and determination of the plaintiff’s intended appeal.
The defendant has now brought an application, through which it seeks the discharge of the injunction
which was granted on 5 July 2006.
In the face of this application, the plaintiff has filed a notice of preliminary objection. This ruling is in
relation to that preliminary objection.
When canvassing the objection, the plaintiff submitted that the application was fatally incompetent, as
the defendant was trying to invoke this Court’s jurisdiction, in error. Therefore, it was contended that the
application dated 15 September 2006 constituted an abuse of the process of the court.
Page 388 of [2007] 1 EA 386 (CCK)

It is the plaintiff’s submission that when the court granted an injunction pending the intended appeal,
the court was exercising an appellate jurisdiction. Therefore, when the defendant thereafter brought the
application to discharge the injunction, through this Court’s original jurisdiction, that rendered the
application fatally defective. I was thus asked to strike out the application.
In answer to the objection, the defendant expressed the view that the plaintiff’s contentions were
misplaced. The reason for the defendant so saying is that by virtue of the provisions of Order XXXIX,
rule 4 of the Civil Procedure Rules, the court had the requisite jurisdiction to set aside or discharge an
injunction which it had issued earlier.
The defendant also said that Order XLI of the Civil Procedure Rules did not have any specific
provisions, for the discharge of injunctions which may have been made conditional. Therefore, the
defendant holds the view that the court would be entitled to invoke the provisions of section 3A of the
Civil Procedure Act, so as to clothe itself with the necessary jurisdiction.
As soon as the plaintiff concluded making his submissions, I asked if he had any authorities to
back-up the submissions. I did so because I had never before come across any contentions such as those
which the plaintiff placed before me. Mr Simiyu, advocate for the plaintiff assured me that he would
provide the court with an authority, which would support the plaintiff’s contention. However,
notwithstanding the fact that the case was adjourned for a couple of days, solely for purposes of enabling
the plaintiff’s advocates to provide the authorities which he had promised, none was forthcoming.
On my part, too, I failed to unearth any authority that would support the point of law that was
canvassed by the plaintiff.
Therefore, my starting point, in the analysis of the preliminary objection, is that the party who
invoked it has not satisfied me that it was well founded. However, I think that it would be too simplistic
to leave the issue at that point.
In my understanding, an appeal would ordinarily be lodged in a court whose jurisdiction was superior to
that of the court which passed the verdict that was being challenged. In effect, the High Court would
ordinarily constitute an Appellate Court over decisions emanating from courts subordinate to it and also
from courts-martial. Therefore, I was unable to comprehend how the defendant would have been
expected to invoke the court’s appellate jurisdiction in relation to a decision of a Judge of concurrent
jurisdiction. I say so because I have always been of the persuasion that one Judge could not sit on an
appeal over another Judge of concurrent jurisdiction, or over his own decision.
Therefore, I hold that it would be erroneous for any party to entertain the notion that by seeking to
discharge an injunction, he or any party seeking the said discharge, was invoking the court’s appellate
jurisdiction.
In my humble view, if the court were to be persuaded to discharge such orders as it may have granted
earlier, the court’s authority to do so would emanate from Order XXXIX, rule 4 of the Civil Procedure
Rules. The said rule provides as follows:
“Any order for an injunction may be discharged, or varied, or set aside by the court on application made
thereto by any party dissatisfied with such orders.”

When seeking the discharge, or variation or setting aside of an injunction, the party who is dissatisfied
with it is told that he can do so by making an application. The rule does not state that he has to lodge an
appeal. Therefore, I hold
Page 389 of [2007] 1 EA 386 (CCK)

the view that when the court is asked to adjudicate on such an application, the court would not be
constituting itself as an Appellate Court.
Furthermore, it would be expected that the party who is asking that the injunction be discharged, or
varied or set aside, would not be challenging the validity of the order itself. If he were to assert that the
court which gave the injunction erred in so doing, the party may be deemed to be proceeding as if he
were appealing against the decision to award the injunction. So, if the said party could not show that he
was seeking a review (in such circumstances) it might be possible for his efforts being curtailed by the
kind of objection which was raised herein.
But, as I understand it, the defendant herein does not purport to challenge the accuracy of the decision
to grant an injunction. Instead, the defendant appears to be doing no more than drawing the court’s
attention to the failure by the plaintiff, to fulfil the terms and conditions which formed the foundation for
the injunction.
To my mind, the exercise being sought by the defendant could not constitute an appeal. And therefore,
I hold that the defendant need not invoke this Court’s appellate jurisdiction before it can prosecute the
application dated 15 September 2006.
Accordingly, the preliminary objection dated 11 October 2006 is overruled, with costs to the
defendant.
For the appellant:
Information not available
For the respondent:
Information not available

Turungi v Republic
[2007] 1 EA 389 (CAK)

Division: Court of Appeal of Kenya at Kisumu

Date of judgment: 23 March 2007
Case Number: 166/06
Before: Omolo, Waki and Deverell JJA
Sourced by: LawAfrica
Summarised by: R Rogo

[1] Criminal law – Robbery with violence – Elements to be proved in charge of robbery with violence –
Effect of putting the elements together in one charge.
[2] Criminal procedure – Failure to state the count of conviction in judgment – Whether duty to write
judgment on plea of guilty.

Editor’s Summary
The appellant, together with other two named persons, was charged with two counts of robbery with
violence contrary to section 296(2) of the Penal Code. While in count one he is alleged to have been in
the company of others and used actual violence, in count two he allegedly was armed with dangerous
weapons. The appellant pleaded guilty to the two counts on two separate days. He also admitted the facts
but only qualified to say that he was not in the
Page 390 of [2007] 1 EA 389 (CAK)

presence of his co-accused. He was accordingly convicted and sentenced to death. He later appealed to
the High Court but lost. He further appealed to arguing that his plea was equivocal, that the judgment did
not meet the legal requirements and that the sentence did not disclose the count on which he was
convicted and sentenced.
Held – A capital robbery is robbery carrying with it the death penalty upon conviction. It is committed if
and only if at the time of its commission the offender is armed with a dangerous or offensive weapon or
instrument or in company with one or other person or persons or at or immediately before or immediately
after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to the victim
of the robbery. Any of these three alternatives or a combination of them would be sufficient for a charge
under section 296(2) of the Penal Code and it seems that in count one the prosecution chose to go under
alternative two combined with alternative three, while in count two the prosecution chose to proceed
under alternative one. There cannot be much quarrel with that.
It is true that the Magistrate did not specifically record that he was convicting the appellant on count
one or count two. But it is clear from the Magistrate’s record that he read out to the appellant each of the
two counts and recorded the plea of the appellant on each count. The facts as narrated by the prosecutor
dealt with both counts. In the context of the record, the appellant was convicted on both counts.
There was no need for a judgment to comply with section 169 of the Criminal Procedure Code
because the appellant admitted all issues and none were left for the Magistrate to determine. On the
contrary, the case fell for consideration under section 207 of the Criminal Procedure Code. This is one of
those rare cases in which it was in no sense improper for the trial Magistrate to accept the appellant’s
plea of guilty to the two charges against him. It is not to be forgotten that the best evidence a court could
ever have in proof of guilt is the free and voluntary admission of the offence by the person charged.
The Magistrate having convicted the appellant on two counts and since the only sentence provided by
law for each of the two counts was death, the Magistrate ought to have sentenced the appellant only on
one count and need not have imposed another sentence of death on the second count. It is not possible to
hang one man twice over.
Appeal dismissed.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Boit v Republic [2002] 1 KLR 815
Rex v Changwony Arap Kisang [1946] Volume X111 153
Page 391 of [2007] 1 EA 389 (CAK)
Judgment
Omolo, Waki and Deverell JJA: On 8 September 2004, Richard Nyariki Turungi, the appellant herein,
together with two other named persons appeared before a Principal Magistrate at Kisii charged with two
counts of robbery, with violence contrary to section 296(2) of the Penal Code. The other two people
charged with the appellant were Oscar Moruri Nyamuta (accused number 2) and Alfred Nyariki Olango
(accused number 3). The particulars contained in the two counts were different. In count one, the
particulars were that:
“On the 2 September 2004 at Ichuni Sub-location in Nyamira District within Nyanza Province, jointly robbed
Cosmas Mose of one Yashika camera and cash KShs 1 200 and that immediately before or immediately after
the time of such robbery used actual violence to the said Cosmas Mose (sic).”

The particulars in the second count were that:

“On the 2 September 2004 at Ichuni Sub-location in Nyamira District within Nyanza Province, jointly while
armed with dangerous weapons namely Somali sword, robbed Elkana Nyabusia of cash KShs 3 800.”

It is not quite clear to us why the language in the two counts was different; in count one the appellant and
his colleagues were not armed with dangerous or offensive weapons but it was apparently being alleged
that they were three people in number and they used actual violence on the victim of the robbery in that
count, namely Cosmas Mose. In count two, it was apparently being alleged that they were armed with a
dangerous weapon, namely a Somali sword, at the time they robbed Elkana Nyabusia; but they did not
use any form of violence against Elkana. A capital robbery, ie robbery carrying with it the death penalty
upon conviction is committed if and only if at the time of its commission the offender is:
Either
(a) armed with a dangerous or offensive weapon or instrument;
or
in company with one or other person or persons;
or
at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or
uses any other personal violence to the victim of the robbery.
Any of these three alternatives or a combination of them would be sufficient for a charge under section
296(2) of the Penal Code and it seems to us that in count one, the prosecution chose to go under
alternative two combined with alternative three, while in count two the prosecution chose to proceed
under alternative one. We think there cannot be much quarrel with that.
The record of the trial Magistrate shows that when the appellant and his colleagues first appeared in
court, there was present, the Magistrate himself, a Chief Inspector of police called Akumu as the
prosecutor and a court clerk called Mwebi who was translating the proceedings from the English
language to “Ekegusii” and from “Ekegusii” to “English”. The two charges were read out to the three of
them and they are recorded as answering the Magistrate as interpreted from Ekegusii as follows:
Page 392 of [2007] 1 EA 389 (CAK)
“Count one: Accused one: It is true PGE
Accused two It is not true PNGE
Accused three: It is not true PNGE
Count two: Accused one: It is true PGE
Accused two: It is not true PNGE
Accused three: It is not true PNGE”

We take the acronyms PGE and PNGE to mean “Plea of Guilty Entered” and “Plea of Not Guilty
Entered”, respectively. The trial Magistrate was clearly of the view that the sentence “It is true” in
respect of each count meant that the appellant, unlike his two colleagues, was pleading guilty to the two
charges. The Magistrate then proceeded as follows:
“Court: The first accused is duly warned that the charge he is facing carry (sic) a mandatory death
sentence. The charge shall be read to him again. Accused be brought back tomorrow. All
RIC.”

Again the acronym “RIC” appears to be “Remanded in Custody”.

On the following day, the three of them appeared before the Magistrate. The Magistrate once again
read the charges to the three of them and the appellant is once again recorded as telling the Magistrate on
each count:
“It is true.”

The other two persons charged with the appellant maintained their pleas of not guilty. The Magistrate
then called upon the prosecutor to state the facts on which the prosecution relied to support the two
charges. The prosecutor narrated those facts as follows:
“On 2 September 2004 at Ichuni sub-location in Nyamira District, the first complainant was going house (sic)
from work. He had a Yashika Camera and KShs 1 000. He met with the first accused and his colleagues who
were dressed in jungle jackets. They stopped him and introduced themselves as police officers. He was
slapped by the first accused who took his camera. He was searched and KShs 1 200 taken. He was kicked and
ordered to run away. As he went away he met the second accused who said he had been robbed of
KShs 3 800. When the accused said [saw?] the two together they started chasing the complainants who ran
away in different directions while raising an alarm. Members of the public came and managed to arrest the
first accused who had a jungle attire and military boots. He was thoroughly beaten. He was then escorted to
the police with a Somali sword. On interrogation the first accused mentioned the co-accused. They were
arrested and a parade conducted where the two accused were identified. All the three accused persons were
charged.”

The Magistrate next asked the appellant to comment on the facts stated by the prosecutor. The appellant
is recorded as telling the Magistrate:
“Accused 1: The facts are correct but I was not with my co-accused.”

It was after this that the Magistrate convicted the appellant and sentenced him to death. His first appeal to
the High Court (Kaburu Bauni and Warsame JJ) was dismissed on 24 March 2006 with the learned
Judges holding:
“The trial court had no alternative and on our part we have no option in view of the expression (sic)
admission by the appellant. The trial court did not convict him the first day when he pleaded guilty. The
matter was adjourned to enable him to change his position, which was detrimental to his interest and the usual
warning was administered on him in a language he understands. The appellant had a satisfactory trial which
we are reluctant to disturb...”
Page 393 of [2007] 1 EA 389 (CAK)

The appellant now comes before us by way of a second appeal and that being so this Court is only
entitled to deal with the matter on issues of law.
Mr Carilus O Nyawiri urged the appellant’s appeal before us. In his memorandum of appeal dated 2
November 2006 and lodged in the court’s Sub-Registry at Kisumu on 15 November 2006, Mr Carilus O
Nyawiri raised three complaints, namely:
“(1) The learned Honourable Judges erred in law by failing to notice and appreciate that the appellant made
equivocal plea of guilty.
(2) The learned Honourable Judges erred in law by failing to recognise and/or appreciate that the
particulars of the charge do not support the charge as to require any plea by the appellant.
(3) The learned Honourable Judges erred in law by failing to find, recognise and/or to notice that the
judgment made and delivered by the trial (lower) court did not meet the requirements of section 169 of
the Criminal Procedure Code (Chapter 75) Laws of Kenya.”

These were the first three grounds of appeal. Then on 13 December 2006, Mr Carilus O Nyawiri filed a
“Supplementary Memorandum of Appeal” containing only one ground, namely:
“That the learned Honourable Judges erred in law by failing to recognise, notice and/or appreciate that the
sentence against the appellant did not and/or does not disclose the count on which the appellant was
convicted, and sentenced.”

When he commenced his submissions before us, Mr Carilus O Nyawiri told us on behalf of the appellant
that he would abandon grounds one and two in the original memorandum of appeal and only argue
ground two thereof together with the only ground in the supplementary memorandum of appeal. On those
two grounds, Mr Carilus O Nyawiri told us that the Magistrate did not specify on which count he
convicted the appellant and on which count he sentenced the appellant to death and it appeared to us
learned counsel was contending this was a fatal omission which entitles the appellant to an acquittal by
this Court. Mr Musau, learned State counsel, opposed this submission.
It is true the Magistrate did not specifically record that he was convicting the appellant on count one
and count two. But it is clear from the Magistrate’s record that he read out to the appellant each of the
two counts and recorded the plea of the appellant on each count. The facts narrated by the prosecutor
dealt with both counts; the first complainant met the appellant and two other people; the appellant and
those two people were dressed in jungle jackets and military boots. They stopped the first complainant,
told him they were police officers and the appellant slapped him and took away the camera. The pocket
of the first complainant was searched and KShs 1 200 taken therefrom. The first complainant was then
kicked and told to go away. On the way, the first complainant met the second complainant and the second
complainant narrated to the first how he had also been robbed of his KShs 3 800. When the two were
thus talking, the appellant and his group once again came upon the two complainants and they were
ordered to run away. The two complainants ran away but at the same time raised an alarm and were
joined by members of the public who chased the appellant, caught him, beat him thoroughly and
delivered him to the police. He had a Somali sword. The appellant gave to the police the names of the
other two who were subsequently arrested. The appellant, as we have seen, admitted all these facts only
denying that he had been with his co-accused persons. The facts admitted by the appellant proved the two
counts of
Page 394 of [2007] 1 EA 389 (CAK)

robbery as charged and it cannot matter that the facts showed that the first complainant had only
KShs 1 000 in his pocket while the particulars in the charge alleged he had been robbed of KShs 1 200.
One is no less guilty because one has been shown to have robbed more than could have been possible to
rob, unless it be shown that there was in fact nothing which could have been taken away. If there was no
money to be taken away from Cosmas Mose, the appellant took away from him his Yashika camera.
Clearly the appellant pleaded guilty to both counts and the Magistrate’s record:
“Guilty on plea and convicted” must, in the context of the record, mean he was convicted on both
counts. We agree with Mr Carilus O Nyawiri that the Magistrate should have specified on which count
the sentence of death was being imposed, but that is a matter which we can and will in due course put
right.
In the case of Boit v Republic [2002] 1 KLR 815 this Court remarked as follows at pages 816 to 817:
“...As far as we are aware there is no law in Kenya which would prevent a person charged with an offence
punishable by death from pleading guilty to such a charge. As long ago as 1946, the then Court of Appeal for
Eastern Africa had this to say on that subject:
This is one of those rare cases in which it was in no sense improper for a Judge to accept a plea of guilty to
murder. The accused was represented by counsel and must have understood what he was charged with and the
consequences of his plea. There is no statutory provision invalidating such a plea – see Rex v Changwony
Arap Kisang [1946] Volume X111 153.
We think the same position still obtains to this day. There is no statutory provision to the effect that a
person charged with an offence the penalty for which is death cannot plead guilty to such a charge. But as the
court remarked in Kisang’s case, such cases are rare. They are indeed the exception rather than the rule. That
being so, the courts have always been concerned that before a plea of guilty to such a charge is accepted and
acted upon by any court certain vital safe-guards must be strictly complied with and it must appear on the
record of the court taking the plea that those safe-guards have been strictly complied with and those
safe-guards are...”

In the present appeal, the appellant was not represented by counsel, but as we have pointed out, he was
not alone. He heard the others plead not guilty to the charges and the record of the Magistrate specifically
shows that he was warned about the consequences of his pleading guilty. The Magistrate even adjourned
the matter to the following day so as to enable the appellant think over the matter. When he returned the
following day, he still persisted in pleading guilty to the charges. There was nothing else the Magistrate
could have done in the circumstances but to accept the plea. Learned counsel for the appellant now tells
us that despite the appellant’s plea of guilty, despite his unqualified admission of the facts relevant to the
charges, the trial Magistrate nevertheless ought to have written a judgment so as to comply with the
provisions of section 169 of the Criminal Procedure Code which set down the requirements to be
complied with in composing a judgment. With the greatest possible respect to Mr Carilus O Nyawiri,
there was no need for a judgment to comply with section 169 of the Criminal Procedure Code because
the appellant admitted all the issues and none was left for the Magistrate to determine. On the contrary,
the case fell for consideration under section 207 of the Criminal Procedure Code. Like in the case of
Kisang in 1946 we are, like the old Court of Appeal for Eastern Africa, satisfied that this is one of those
rare cases in which it was in
Page 395 of [2007] 1 EA 389 (CAK)

no sense improper for the trial Magistrate to accept the appellant’s plea of guilty to the two charges
against him. It is not to be forgotten that the best evidence a court could ever have in proof of guilt is the
free and voluntary admission of the offence by the person charged.
The Magistrate having convicted the appellant on two counts, and since the only sentence provided by
law for each of the two counts was death, the Magistrate ought to have sentenced the appellant only on
one count and need not have imposed another sentence of death on the second count. As we have
repeatedly pointed out it is not possible to hang one man twice over. Accordingly, while we do and
hereby dismiss the appeal against the conviction on each of the two counts, we set aside the second
sentence of death imposed by the Magistrate on count two. The sentence of death on count one, however,
remains. Those shall be our orders in this appeal.
For the appellant:
Information not available
For the respondent:
Information not available

Uganda v Besigye
[2007] 1 EA 395 (CCU)

Division: Constitutional Court of Uganda at Kampala

Date of ruling: 25 September 2006
Case Number: 20/05
Before: Kikonyogo, Okello, Bahigeine, Kitumba and Byamugisha JJA
Sourced by: LawAfrica
Summarised by: E Dimba

[1] Constitution – Interpretation – Literal Rule of Interpretation – Application of the rule to article
23(6) of the Uganda Constitution.
[2] Criminal procedure – Bail pending appeal – Whether High Court has discretion to grant or to
refuse to grant bail – Article 23(6) of the Uganda Constitution – Factors to be considered in an
application for bail.

Editor’s Summary
The respondent and others arrested before him were jointly charged with treason contrary to section
23(1)(c) of the Penal Code Act. The respondent who was also charged with rape contrary to section 123
of the Penal Code Act applied for bail to the High Court under article 23(6)(a) of the Constitution of
Uganda. The DPP opposed the bail application on two grounds namely that whereas the court had
discretion to grant or not to grant the bail application and that in the case of the respondent, there were no
exceptional circumstances as stipulated under section 15 of the Trial on Indictments Act (Chapter 23),
which would warrant the exercise of the court’s discretion in the respondent’s favour. Secondly, the High
Court had given conflicting interpretations of article 23(6)(a) of the Constitution thus leading to serious
confusion in the lower courts which are bound by the High Court’s decisions.
The respondents was granted “interim bail” whereupon the trial Judge referred to the Constitutional
Court by way of reference under article 137(5) of
Page 396 of [2007] 1 EA 395 (CCU)

the Constitution the following question, inter alia, to be resolved by the court, namely whether under
article 23(6) of the Constitution, courts have the discretion to grant or not to grant bail.
Held – Article 23(6)(a) gives the accused a right to apply for bail and the court has a discretion to grant
or to refuse to grant bail.
It is a cardinal principal of constitutional interpretation that when interpreting an article or clause
thereof, all articles bearing upon that subject matter under discussion have to be brought into purview
and read or construed together as one whole so as to bring out the greatness effect of the document.
Applying the literal rule of interpretation therefore, the context of article 23(6)(a) confers discretion
upon the court whether to grant or not to grant bail. Bail is not an automatic right.
The word “may” is not defined in the Constitution but implies permissive, optional or discretional and
not mandatory. The word “may” is the opposite of “shall” which is generally imperative as mandatory.
Under article 23(6)(a) the accused is entitled to apply for bail. The word “entitled” creates a “right” to
apply for bail and not a right to be granted bail. The word “may” creates discretion for the court to grant
or not to grant bail. The context in which the word “may” is used does not suggest otherwise.
Under article 23(6)(b) and (c) the court has no discretion to grant or not to grant bail after the accused
has shown that he/she has been on remand custody for 60 days before trial or 80 days before committal to
the High court.
Under article 23(6)(b) where the accused has been in custody for 60 days before trial for an offence
triable by the High Court as well as a Subordinate Court, that person shall be released on bail on such
conditions as the court considers reasonable. Here the court has no discretion. It has to grant bail because
of the use of the phrase “shall be released on bail” appearing therein. This is the opposite of the phrase
“may be released on bail” as appears in article 23(6)(a). The word “shall” is imperative or mandatory. It
denotes obligation.
Under article 23(6)(c), where the accused has been in custody for 180 days on an offence triable by
the High Court only and has not been committed to the High Court for trial, that person shall be released
on bail on reasonable conditions. Like in article 23(6)(b) the court has no discretion to refuse to grant
bail to such a person..
Under both article 23(6)(b) and (c) the court has discretion to determine conditions of bail.
Where the accused is charged with an offence only triable by the High Court but has not spent the
statutory period of 180 days in custody before committal, the court may refuse to grant bail where the
accused fails to show to the satisfaction of the court exceptional circumstances under section 15(3) of the
Trial on Indictments (Amendment) Act number 9 of 1998 (Chapter 23). These circumstances are
regulatory. They are:
(1) grave illness certified by a medical officer of the prison or other institution or place where the
accused is determined as being incapable of adequate medical treatment while the accused is in
custody;
(2) a certificate of no objection signed by the Director of Public Prosecution; or
(3) the infancy or advanced age of the accused.
Page 397 of [2007] 1 EA 395 (CCU)
The Trial on Indictments (Amendment) Act number 9 of 1998 (Chapter 23) is a 1998 Act which came
into force, well after the 1995 Constitution. Its sole purpose was to operationalise article 23(6)(c) for
accused persons desirous of applying for release on bail before the expiry of the constitutional time limit
of 180 days. It does not fall under the general situation covered under article 23(6)(a) where a
Subordinate Court might be tempted to or arm-twisted into entertaining such an application when the
accused person appears for further remands.
There was nothing inherently wrong with the order for “interim bail” made by the trial Judge.
Obiter – While considering a bail application, the court would need to balance the constitutional rights
of the applicant. The needs of society to be protected from lawlessness and the considerations which flow
from people being remanded in prison custody which affects their welfare and that of their families and
not least the effect on prison remand conditions if large numbers of convicted people are remanded in
custody.
Various factors have to be borne in mind such as the risk of absconding and interference with the
course of justice.
Where there is substantial likelihood of the applicant failing to surrender up for trial, bail may only be
granted for less serious offences. The court must weigh the gravity of the offence and all the other factors
of the case against the likelihood of the applicant absconding. Where facts come to light and it appears
that there is substantial likelihood of the applicant absconding while on bail, it would be inadvisable to
grant bail to such a person.
Where there is substantial likelihood of interference with witnesses, this would normally be relevant
when the alleged offence is comparatively serious and there is some other indication of violence or
threatening behaviour by the accused, this would be a very strong ground for refusing bail.
Bail should also be refused according to the status of the offence and the stage in the proceedings. The
extent to which evidence pointing to proof of guilt or innocence of the applicant would seem to be one of
degree in the circumstances of a particular case. There is no such rule that such evidence cannot be
placed before court. An investigating officer giving evidence of arrest would often be able to connect the
applicant sufficiently with the offence, as much as to claim that he or she may fail to surrender for trial.

Cases referred to in ruling

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Layan Yahaya v Uganda High Court miscellaneous criminal application number 96 of 2005
Page 398 of [2007] 1 EA 395 (CCU)
Ruling
Kikonyogo JA: This matter was placed before this Court by way of Reference under article 137(5) of the
Constitution which states that:
(5) Where any question as to the interpretation of this Constitution arises in any proceedings in a court
of law other than a Field Court Martial, the court:
(a) may, if it is of the opinion that the question involves a substantial question of law; and
(b) shall, if any party to the proceedings requests it to do so, refer the question to the
Constitutional Court for decision in accordance with clause (1) of this article.
It was referred to this Court by the Honourable J Ogoola, Principal Judge, at the request of Ms Ddamali
Lwanga, the Assistant DPP that the following issue be resolved by this Court, namely:
“Whether under article 23(6) of the Constitution Courts have the discretion to grant or not to grant bail.”

At the hearing, Mr Michael Wamasebu, the Assistant DPP appeared for the DPP, the petitioner, while Ms
Robina Rwakoojo, Principal State Attorney with Ms Sophie Masagazi, State attorney, represented the
Attorney-General.
Mr David FK Mpanga and Mr Kiyemba Mutale were for the respondent, Col (RTD) Dr Kiiza
Besigye.
The background
The respondent, and 22 others who had been arrested before him around March 2003, were jointly
charged with treason, contrary to section 23(1)(c) of the Penal Code Act. The respondent who was also
charged with rape contrary to section 123 of the Penal Code Act applied for bail to the High Court, vide
miscellaneous application number 228 of 2005, under article 23(6)(a) of the Constitution.
(10) The DPP opposed the bail application on two grounds, namely that:
(a) the court had discretion to grant or not to grant the bail application, pointing out that,
however, in the case of the applicant there were no exceptional circumstances as stipulated
under section 15 of the Trial on Indictments Act (Chapter 23), which would warrant the
exercise of the court’s discretion in the applicant’s favour.
(b) secondly, the High Court had given conflicting interpretation of article 23(6)(a) of the
Constitution thus leading to serious confusion in the lower courts which are bound by the
High Court decisions.
The learned Principal Judge, however, on 24 November 2005, granted the applicant “interim bail” and
referred the question of law aforesaid to this Court, under article 137(5), for determination.
The assistant DPP’s submissions on the reference
Mr Wamasebu pointed out that some Judges were of the view that under article 23(6), they had discretion
to grant or to refuse to grant bail while others held that bail was an automatic right. Their Lordships were
so divided on this issue, he asserted. By way of example, the learned Assistant DPP cited Layan Yahaya
v
Page 399 of [2007] 1 EA 395 (CCU)

Uganda High Court miscellaneous criminal application number 96 of 2005 where Lugayizi J held:
“In other words, since under article 28(3)(a) of the Constitution a suspect in a criminal case is presumed
innocent until he or she is proved guilty or until he or she pleads guilty it makes sense to say that when such
suspect applies for bail a court of law would act unconstitutionally if it refused to grant him or her bail. A
refusal to grant bail would contradict the suspect’s inherent right of innocence and indirectly suggest that the
law presumes the suspect guilty of the offence he or she is charged with unless he or she proves otherwise. All
in all, this Court remains of the settled view that bail is a Constitutional right that flows from the presumption
of innocence under article 28(3)(a) of the Constitution.”

Mr Wamasebu submitted that the above interpretation was clearly erroneous and illustrated the confused
situation in the High Court.
The Assistant DPP pointed out that the use of the word “may” in article 23(6)(a) connotes discretion
on the part of the court whereas “shall” as used in 23(6)(b) and (c) takes away that Court’s discretion on
the applicant showing he/she has been in custody for the prescribed time limit. He contended that it was
the literal rule of interpretation that had to be applied to these matters. The word “may” simply means
that the court has discretion to be exercised in the matter before it. To hold otherwise would be absurd. It
would lead to an influx of thugs and fugitives from justice congesting our surroundings and dismantling
our security. He prayed to Court to hold that article 23(6)(a) gives the court discretion whether to grant
or not to grant bail.
Ms Robina Rwakoojo for the Attorney-General associated herself with the submission of the Assistant
DPP and remarked that she had nothing useful to add.

Mr David FK Mpanga’s submission

The respondent’s answer to the reference was “yes” in respect of article 23(6)(a). The court has
discretion, he maintained. This however, did not apply to article 23(6)(b) and (c) where the word “shall”
is used, he argued. Here, the court has no option but to grant bail.
Elaborating on article 23(6)(a), Mr Mpanga pointed out that the article must be read in conjunction
with the Constitution as a whole. It has to be married with article 28(3) enshrining the applicant’s right to
the presumption of innocence together with article 23(1) protecting his/her right to personal liberty. The
objects of granting bail were threefold, namely, to ensure that the accused attends court to have the
matter resolved by the court, to ensure that he/she does not interfere with witnesses and to prevent the
accused from re-offending. He stated that there were no circumstances where the court has no discretion
under article 23(6)(a). Everybody is entitled to apply for bail. When the application is made, it is for the
prosecution to make out objections to bail being granted and for the accused to reply and discharge the
evidential burden.

The assistant DPP’s reply

Mr Wamasebu agreed that under article 23(6)(b) the court has no discretion once the applicant has shown
that he has been in custody for the statutory period before trial.
Page 400 of [2007] 1 EA 395 (CCU)

However, his view on article 23(6)(c) was that the applicant cannot be released once he has been
committed to the High Court, regardless of the custody time limit.

Mr Mpanga’s contention on 23(6)(c)

Mr Mpanga, who had ignored this point, countered that after committal, bail is not automatic but if it
takes long for the trial to take off, the applicant would be entitled to bail.
Ms Rwakoojo herself sided with the Assistant DPP on this point.
It is thus clear that both counsel agreed on the interpretation of article 23(6)(a) and (b). We agree with
this position. Article 23(6)(a) gives the accused a right to apply for bail and the court has a discretion to
grant or to refuse to grant bail.
Provisions of Relevant articles:
“23 (1) No person shall be deprived of personal liberty except in any of the following cases:
Article 23(6) as amended by the Constitution (Amendment) Act 11 of 2005 reads:
(6) Where a person is arrested in respect of a criminal offence:
(a) the person is entitled to apply to the court to be released on bail and the court may grant
that person bail on such conditions as the court considers reasonable;
(b) in the case of an offence which is triable by the High Court as well as by a Subordinate
Court, if that person has been remanded in custody in respect of the offence for sixty days
before trial, that person shall be released on bail on such conditions as the court considers
reasonable;
(c) in the case of an offence triable only by the High Court, if that person has been remanded
in custody for one hundred and eighty days before the case is committed to the High
Court, that person shall be released on bail on such conditions as the court considers
reasonable.”
Article 28 which protects the right to a fair hearing states, inter alia:
“(3) Every person who is charged with a criminal offence shall:
(a) be presumed to be innocent until proved guilty or until that person has pleaded guilty.”

It is a cardinal principle of constitutional interpretation that when interpreting an article or clause thereof,
all articles bearing upon that subject matter under discussion have to be brought into purview and read or
construed together as one whole so as to bring out the greatest effect of the document.
Applying the literal rule of interpretation, therefore, the context of article 23(6)(a) confers discretion
upon the court whether to grant or not to grant bail. Bail is not an automatic right.
We observe that the word “may” is not defined in the Constitution but is exhaustively explained in
Black’s Law Dictionary, (6ed) where it is stated to imply permissive, optional or discretional and not
mandatory. The word “may” is the opposite of shall which is generally imperative or mandatory.
Page 401 of [2007] 1 EA 395 (CCU)

Under article 23(6)(a), the accused is entitled to apply for bail. The word “entitled” creates a “right”
to apply for bail and not a right to be granted bail. The word “may” creates a discretion for the court to
grant or not to grant bail. The context in which the word “may” is used does not suggest otherwise.
We turn to article 23(6)(b) and (c). We accept the general position as stated by both counsel that the
court has no discretion to grant or not to grant bail after the accused has shown that he/she has been on
remand in custody for 60 days before trial or 180 days before committal to the High Court.
Under article 23(6)(b) where the accused has been in custody for days before trial for an offence
triable by the High Court as well as a Subordinate Court, that person shall be released on bail on such
conditions as the court considers reasonable. Here the court has no discretion. It has to grant bail because
of the use of the phrase “shall be released on bail”, appearing therein. This is opposite of the phrase “may
be released on bail” as appears in 23(6)(a) (supra). The word “shall” is imperative or mandatory. It
denotes obligation.
As regards article 23(6)(c), where the accused has been in custody for 180 days on an offence triable
by the High Court only and has not been committed to the High Court for trial, that person shall be
released on bail on reasonable conditions. Like in 23(6)(b) the court has no discretion to refuse to grant
bail to such a person.
In both article 23(6)(b) and (c) the court has discretion to determine the conditions of bail.
However, under 23(6)(c) it is vital to highlight the other common situation which might be confused
with the one dealt with already. Strangely enough we were not availed the benefit of any submissions
from either counsel. This is the situation where the accused is charged with an offence only triable by the
High Court but has not spent the statutory period of 180 days in custody before committal. In this case,
the court may refuse to grant bail where the accused fails to show to the satisfaction of the court
exceptional circumstances under section 15(3) of the Trial on Indictments (Amendment) Act number 9 of
1998 (Chapter 23). These circumstances are regulatory. They are:
“(a) grave illness certified by a medical officer of the prison or other institution or place where the accused
is detained as being incapable of adequate medical treatment while the accused is in custody;
(b) a certificate of no objection signed by the Director of Public Prosecution; or
(c) the infancy or advanced age of the accused.”

It is noteworthy that this is a 1998 Act which came into force, well after the 1995 Constitution. Its sole
purpose was to operationalise article 23(6)(c) for accused persons desirous of applying for release on bail
before the expiry of the constitutional time limit of 180 days. It does not also fall under the general
situation covered under article 23(6)(a) where a Subordinate Court might be tempted to or arm-twisted
into entertaining such an application when the accused appears for further remands.
Before we take leave of this, we were made to understand by Mr Wamasebu that the order of “interim
bail” made by the Honourable Principal Judge was unknown to our law and we were asked to comment
on it. We would say that his Lordship had powers to do so and gave his reasons for doing so. There is
nothing inherently wrong with the order.
Page 402 of [2007] 1 EA 395 (CCU)
So much for the Reference
We, however, feel constrained for the sake of completeness of the exercise, to offer some general
observations on the reasonable conditions the court should keep in mind when deciding to grant bail or to
refuse to grant bail. While considering bail the court would need to balance the constitutional rights of
the applicant. The needs of society to be protected from lawlessness and the considerations which flow
from people being remanded in prison custody which adversely affects their welfare and that of their
families and not least the effect on prison remand conditions if large numbers of unconvicted people are
remanded in custody.
In this respect various factors have to be borne in mind such as the risk of absconding and interference
with the course of justice. Where there is a substantial likelihood of the applicant failing to surrender or
turn up for trial, bail may only be granted for less serious offences. The court must weigh the gravity of
the offence and all the other factors of the case against the likelihood of the applicant absconding. Where
facts come to light and it appears that there is substantial likelihood of the applicant offending while on
bail, it would be inadvisable to grant bail to such a person.
Similarly, where there is substantial likelihood of interference with witnesses, this is normally
relevant when the alleged offence is comparatively serious and there is some other indication of violence
or threatening behaviour by the accused, this would be a very strong ground for refusing bail. Bail could
also be refused according to the status of the offence and the stage in the proceedings. The extent to
which evidence pointing to proof of guilt or innocence of the applicant would seem to be one of degree in
the circumstances of a particular case. There is no rule that such evidence cannot be placed before court.
An investigating officer giving evidence of arrest often to connect the applicant sufficiently with the
offence, as much as to claim that he or she may fail to surrender for trial.
While the seriousness of the offence and the possible penalty which could be meted out are
considerations to be taken into account in deciding whether or not to grant bail, applicants must be
presumed innocent until proved guilty or until that person has pleaded guilty. The court has to be
satisfied that the applicant will appear for trial and would not abscond. The applicant should not be
deprived of his/her freedom unreasonably and bail should not be refused merely as a punishment as this
would conflict with the presumption of innocence. The court must consider and give the applicant the
full benefit of his/her constitutional rights and freedoms by exercising its discretion judicially.
Bail should not be refused mechanically simply because the State wants such orders. The refusal to
grant bail should not be based on mere allegations. The grounds must be substantiated. Remanding a
person in custody is a judicial act and as such the court should summon its judicial mind to bear on the
matter before depriving the applicant of their liberty. What we have outlined above is by no means
exhaustive. The court should consider all other relevant circumstances.
All in all, both the High Court and the Subordinate Courts have wide discretionary powers to set bail
conditions which they deem reasonable, though we would caution this must be done judicially.
For the appellant:
Mr Michael Wamasebu
For the Attorney-General:
Ms Robina Rwakoojo and Ms Sophie Masagazi
For the respondent:
Mr David FK Mpanga and Mr Kiyemba Mutale

Waweru v Richu
[2007] 1 EA 403 (CAK)

Division: Court of Appeal of Kenya at Nairobi

Date of judgment: 2 February 2007
Case Number: 122/01
Before: Tunoi, Githinji and Onyango-Otieno JJA
Sourced by: LawAfrica
Summarised by: E Ongoya

[1] Land – Adverse Possession – When adverse possession arises – Whether possession under a
controlled transaction in land when the transaction becomes void is adverse.

Editor’s Summary
The appellant was a nephew to one Miki Kabiru who died on 22 April 1997. The said Miki Kabiru was
the registered proprietor of land title number Komothai/igi/229. The deceased had no wife nor children
and upon his death, the appellant obtained a Grant of Letters of Administration which was duly
confirmed. He was accordingly registered as the heir of the land parcel. On 25 January 1999, the
respondent commenced proceedings claiming entitlement to one acre from the land by adverse
possession. It emerged in evidence that the deceased had entered a sale transaction with the respondent in
respect of the parcel of land which was never completed and in respect of which the relevant land control
board consent was never obtained. The respondent had, nonetheless, taken possession of the land parcel
pending completion. The trial court found that possession became adverse upon the transaction becoming
void for non-compliance with the Land Control Act. The said finding of the High Court formed the basis
of the appeal.
Held – It is trite law that a claim for adverse possession cannot succeed if the person asserting the claim
is in possession with the permission of the owner or in pursuance of an agreement for sale or lease or
otherwise.
A purchaser of land under a contract of sale, not subject to the Land Control Act, who is in possession
of the land with the permission of the vendor pending completion cannot lay a claim of adverse
possession of such land at any time during the period of validity of the contract unless and until the
contract of sale has first been repudiated or rescinded by the parties in which case adverse possession
starts from the date of termination of the contract.
Page 404 of [2007] 1 EA 403 (CAK)

Where a purchaser or lessee of land in a controlled transaction is permitted to be in possession of the

land by the vendor, or lessor pending completion and the transaction thereafter becomes void under
section 6(1) of the Land Control Act for lack of consent of the Land Control Board, such permission is
terminated by the operation of the law and the continued possession, if not illegal, becomes adverse from
the time the transaction becomes void.
The respondent had for many years been continuously, openly and of right using clearly demarcated
portion of the land on which she had planted coffee, a permanent cash crop, built a semi-permanent
house and granary without interruption.
Appeal dismissed with costs.

Cases referred to in judgment

(“A” means adopted; “AL” means allowed; “AP” means applied; “APP” means approved; “C” means
considered; “D” means distinguished; “DA” means disapproved; “DT” means doubted; “E” means
explained; “F” means followed; “O” means overruled)

East Africa
Jandu v Kilpal [1975] EA 225
Sisto Wambugu v Kamau Njuguna [1982–1988] 1 KAR 217

Judgment
Tunoi, Githinji and Onyango-Otieno JJA: The appellant Samuel Miki Waweru is aggrieved by the
decision of the Superior Court (Aganyanya J) dated 18 August 2000 whereby the Superior Court entered
judgment for the respondent herein for a declaration that she had acquired by adverse possession an
absolute title to a portion of one acre from land title number Komothai/igi/229 and further ordered the
appellant to transfer the one acre to the respondent.
The appellant is a nephew to Miki Kabiru the original registered proprietor of land title number
Komothai/igi/229 comprising of 3.9 acres. Miki Kabiru died on 22 April 1997. He had no wife nor
children. Upon his death, the appellant as his nephew filed Nairobi High Court Succession Cause number
1511 of 1997. He was given a Grant of Letters of Administration, which grant was confirmed on 8 June
1998. He was registered as the heir to the land on 25 August 1998.
On 27 January 1999, the respondent filed an originating summons claiming to be entitled to one acre
from the land by adverse possession. The basis of her claim is best explained in paragraphs four, five,
six, seven, eight and ten of the affidavit to support the originating motion thus:
“(4) That sometime in 1967, the above deceased person allowed me to cultivate part of the suit premises
with a view to purchasing the same and even planted 390 coffee trees on the said land.
(5) That on the 15 April 1969 we entered into a formal written agreement for the purchase of one acre
from the said piece of land the purchase price being KShs 4 160 which I paid to him.
Page 405 of [2007] 1 EA 403 (CAK)
(6) That after one month of the said purchase, we brought a surveyor who came and demarcated the
boundaries of the one acre piece and the traditional boundary markings placed then, are still in place to
date.
(7) That at the time of the purchase, the registered owner of the land did not have Title Deed to the land
and therefore the Transfer could not be effected immediately.
(8) That I nevertheless settled on the land and built a semi-permanent house and granary and continued
cultivating the same to date.
(9) …
(10) That the respondent herein came and settled on the land in 1981 and occupied the remaining portion
while leaving me to my portion and all the three of us continued to occupy the land with nobody
interfering with my quiet possession of my one acre.”

The appellant’s case was partly stated at paragraphs 4 and 5 of his replying affidavit sworn on 10
February 1999 thus:
“(4) That paragraph 4 of her affidavit is not true. Her husband Mr Richu (deceased) had leased the portion
of the land reference number Komothai/igi/229 … from my uncle Miki Kabiru for a term of 30 years
from 1963. I was informed by my uncle Miki Kabiru sometime in 1978 and 1993, before his death
which I verily believed to be true that he consented to put Mr Richu into possession and plant coffee
which is a long term crop so that the lessee could make a profit during the 30 years.
(5) The plaintiff admits in paragraph 4 that she was granted consent to cultivate the land. It is not true that
she began cultivating in 1967. Her husband was given consent to enter into possession in 1963.”

The respondent in a further affidavit denied that the land had been leased to her (her husband) for 30
years and reiterated that the land was sold to her for valuable consideration. However, she admitted in
her evidence that her husband had been given the land to cultivate in 1963 and that she and her husband
cultivated the land but her husband died in 1967. She nevertheless continued cultivating the land and in
1969, she offered to purchase it. The offer was accepted and an agreement of sale entered into after
which she paid the purchase price of KShs 4 160 on 15 April 1969 and planted coffee.
The respondent had annexed to the originating summons the proceedings and decision of an Assistant
Chief and his elders which shows that the dispute was heard by the Assistant Chief and elders and on 19
November 1998 found in favour of the respondent that she had bought the land in 1969 for KShs 4 160
though she had not paid for all the items asked by the vendor. The appellant issued a notice to the
respondent to vacate the land on the day of the elders’ decision (ie 19 November 1998).
The trial Judge found that both the sale agreement and the alleged lease became null and void after the
expiry of the respective six months for lack of consent of the Land Control Board under the Land Control
Act and proceeded to decide the dispute solely on the basis of the claim of adverse possession. The trial
Judge was satisfied that the respondent had established a claim to the land by adverse possession saying
in part:
“The applicant lived on the suit land from 1970 after the expiry of the 6 months period within which Land
Board Consent could have been obtained until 1997 when the deceased died. That is a period of 27 years.
Thus occupation or possession was with full knowledge of the deceased, open, notorious and uninterrupted.
Page 406 of [2007] 1 EA 403 (CAK)
If the cultivation was on and off basis or for short seasons, the position would have been different. But the
continuous cultivation which involved planting of long lasting crops like coffee and erecting thereon a
residential house went beyond a mere licence and gave the applicant the position of an adverse possessor.”

Those findings of the Superior Court are the basis of this appeal. It is contended that the learned Judge
erred in finding that respondent had proved adverse possession mainly for two reasons. First, the
respondent was admittedly in possession of the land with the permission of the registered owner, and
secondly, such possession was not exclusive as the respondent was not physically living on the land.
It is trite law that a claim for adverse possession cannot succeed if the person asserting the claim is in
possession with the permission of the owner or in pursuance of an agreement for sale or lease or
otherwise. Further, as the High Court correctly held in Jandu v Kilpal [1975] EA 225 possession does not
become adverse before the end of the period for which permission to occupy has been given. The
principle to be extracted from the case of Sisto Wambugu v Kamau Njuguna [1982–1988] 1 KAR 217
relied on by Mr Gitonga, learned counsel for the appellant, seems to be that a purchaser of land under a
contract of sale who is in possession of the land with the permission of the vendor pending completion
cannot lay a claim of adverse possession of such land at any time during the period of validity of the
contract unless and until the contract of sale has first been repudiated or rescinded by parties in which
case adverse possession starts from date of the termination of the contract.
It is important to bear in mind that in Sisto Wambugu (supra) the court was dealing with the nature of
a purchaser’s possession under a general contract of sale of land and not under a controlled transaction
within the ambit of the Land Control Act (Chapter 301). However, the application of the Land Control
Act to the transaction was raised in that case as appears from the respective judgments of Hancox JA (as
he then was) and Kneller JA (as he then was) but was not considered by Hancox JA (see pages 219, first
paragraph and page 220, first paragraph). The application of the Land Control Act was however
considered and answered by Kneller JA at page 228 fourth paragraph, thus:
“The parties did not have the consent of the relevant Land Control Board to this sale but there was no material
on which this issue could be answered and, in indeed it was not one that was pleaded or was the basis of any
submission in the High Court.”

In the instant case, Mrs Wanyaga, who appeared for the respondent at the trial submitted in the Superior
Court that possession became adverse in 1969 when the sale became void for lack of Land Control Board
consent. The trial Judge in the passage of his judgment that we have quoted above agreed that adverse
possession started after the expiry of the 6 months’ period within which period the Land Control Board
consent would have been obtained.
It is not in contention in this case that the Land Control Act applied to the alleged lease or sale of the
portion of land claimed by the respondent or that the consent of the Land Control Board was neither
applied for within the stipulated period nor granted. It follows therefore, and Mr Gitonga concedes, that
the alleged sale or lease became void for all purposes as provided by section 6(1) of the Land Control Act
with the consequences stipulated in section 22 of the Land Control Act. Thus, the agreement of sale in
this case was terminated for all purposes by the operation of law and the continuation of possession by
the
Page 407 of [2007] 1 EA 403 (CAK)

respondent thereafter could not be referable to the agreement of sale or the permission of the original
owner. It was an independent possession adverse to the title of the original owner.
In our view, where a purchaser or lessee of land in a controlled transaction is permitted to be in
possession of the land by the vendor, or lessor pending completion and the transaction thereafter
becomes void under section 6(1) of the Land Control Act for lack of consent of the Land Control Board,
such permission is terminated by the operation of the law and the continued possession, if not illegal,
becomes adverse from the time the transaction becomes void.
The respondent admitted that she and her deceased husband were in possession with the permission of
the original owner from 1963 to 1967. She asserted possessory right as a purchaser from 1969. For the
reasons we have already stated, both the alleged sale and lease became void for lack of the consent of the
Land Control Board and the continued possession of land by the respondent henceforth was not with the
permission of the original owner. It was adverse possession.
The respondent has for many years been continuously, openly and of right using a clearly demarcated
portion of the land on which she has planted coffee, a permanent cash crop, built a semi-permanent house
and granary without interruption.
On analysis, we are satisfied that the learned Judge reached the correct decision on both facts and law.
In the result, the appeal has no merit. It is hereby dismissed with costs to the respondent.
For the appellant:
Mr Gitonga
For the respondent:
Mrs Wanyaga