Can one Stop the Licensing of Bar Business?

The determination of case between Muimara Estate Residents Association vs Nairobi City County & 2 others regarding a bar in the estate should be of interest to many long-suffering residents.

The Resident’s Association of Muimara Estate filed a petition against the City County of Nairobi (CCN), The Liquor Licensing Committee and a Kariuki Kimiti, challenging:

1. The county government and Liquor Licensing Committee’s decision to grant Kariuki Kimiti a licence to operate a bar in their estate.
2. Kariuki Kimiti of operating a bar within Muimara estate.

Appearing before Justice Mwita of the constitutional and human rights division of the High Court in Nairobi Kenya, Muimara Estate Residents Association stated that the Estate has young and School going children. Yet that notwithstanding, the Liquor Licensing Committee, which operates under the supervisory role of the City County of Nairobi (CCN), granted a liquor license to Kariuki Kimiti who in turn used the said license to build a bar in the estate.
They complained that the noise, quarrels and yells from the bar infringe on their right to dignity and healthy environment, given the obscene language used by patrons in the bar and sought the following reliefs:-

1. A declaration that the CCN had infringed on their rights by allowing the establishment and operation of a bar and alcoholic selling business within the estate.
2. A declaration that the CCN and Liquor Licensing Committee were in breach of the law governing the sale of alcoholic drinks and had failed in their constitutional mandate by allowing Kariuki to operate a bar and nightclub within Muimara Estate
3. An order directed to the CCN and Liquor Licensing Committee ordering them to withdraw, cancel and revoke all licenses or permits granted to Kariuki Kimiti or any other persons for the operation of a bar, club or alcoholic selling business within their Estate.
4. An order of injunction restraining the CCN and Liquor Licensing Committee from licensing, allowing or permitting Kariuki or any other persons to operate a bar, club or alcoholic sells business within Muimara Estate.
5. An order of injunction restraining Kariuki Kimiti or any other person from opening, operating or running a bar, club or alcoholic selling business in the estate.
6. The respondents to pay the costs of this petition.

In their reply, the County Government and Liquor Licensing Committee stated that although they are responsible for regulating licensing of liquor trading within the county, they had not issued Kariuki a liquor license and so he was illegally operating contrary to the Alcoholic Drinks Control and Licensing Act 2014.

On his part, Kariuki replied that he is only a landlord but not a proprietor or licensee of any liquor selling license(s) and that he has been wrongly enjoyed in this petition.

The Judge on considering the petitions and responses concluded that the petition raised only one issue for determination, namely; whether Kimiti’s bar business had caused a violation of the rights of the members of Muimara Estate to live in dignity, tranquillity and without disturbance in a residential area but the City County of Nairobi and the Liquor Licensing Committee had illegally allowed Kimiti to operate a liquor selling business within the estate deleteriously to this right.

He found the following:

1. The CCN and Liquor Licensing Committee had denied granting a liquor license to Kariuki Kimiti and had agreed with Muimara Estate Residents Association that the law does not allow selling of liquor in residential areas, and so Kimiti is illegally operating a liquor selling business.
2. The state must demonstrate that it is committed to the protection of Human dignity, one of the most important of human rights and the source of all other personal rights. Selling liquor in a residential estate violates the residents’ right to privacy guaranteed under Article 31 of the constitution and therefore violates the residents’ right to live in dignity.
3. Whatever business is being undertaken in the estate, whether by the Kariuki Kimiti or anyone else, is illegal and unlawful.

Consequently, the Judge on 30^th October 2018 allowed the petition thus:

1. issued a declaration that Kariuki Kimiti has infringed on the rights of the residents of Muimara Estate
2. Issued a declaration that the City County of Nairobi and Liquor Licensing Committee had failed in their constitutional mandate by allowing Kimiti to operate a bar and nightclub within a residential area.
3. Issued an order of injunction restraining the City County of Nairobi and Liquor Licensing Committee from licensing, allowing or permitting the Kariuki or any other persons to operate a bar; club or alcoholic selling business within Muimara Estate in Nairobi.
4. Issued an order of injunction restraining Kariuki Kimiti from operating or running any alcoholic selling business within Muimara
5. Directed that Kariuki bears the cost of the petition.

Medical Trafficking Bill 2018

The Medical Trafficking Bill 2018, by Kesses MP Swarup Mishra is soon coming up for debate on the floor of the August house. The bill seeks to regulate the transfer of patients from Kenya to foreign countries for treatment. It will give teeth to regulations jointly drawn a while back by the Health Cabinet Secretary Cleopa Mailu and the Kenya Medical Practitioners and Dentists Board (KMPDB). As per these regulations, a doctor can only refer a patient abroad for treatment if there is evidence that hospitals in the country lack the capacity to take care of them. Also if the patient is using public funds, the referral has to be the most cost-effective option and approved by NHIF.

Since the 1990s, India has been celebrated as a global leader in “medical tourism. The visas to India can be ready in a week, and the country’s doctors are very qualified. These doctors are supported by world-class medical equipment, their medical procedures are approved by the World Health Organisation (WHO) and Kenyan consumers have said the cost of treatment and care is fair compared to what you get.

Although Kenya has seen quite some advancement in medical facilities and services not least buoyed by the Asians and other foreigners setting up satellite stations in Kenya, health professionals have continued to make the fast shilling by referring patients abroad for a fee. For example surgeries like the knee, shoulder or ankle joint replacement can be treated in Kenya today. Kidney transplant too. Cancer management centres are quite a number in Kenya too. When a patient is referred abroad the cost is much higher than if the treatment was done here in Kenya even without the kickback. But patients keep being referred abroad sometimes unnecessarily.

The bill seeks to tame these marauding and unscrupulous medical practitioners, charlatans, cartels and quacks who swindle suffering Kenyans off their money in the name of specialised treatment abroad.

In a nutshell the bill we put in place a mechanism to:

• pre-qualify countries and hospitals where Kenyans can go for treatment. Some parts of the world have standards for sanitation that may not meet Kenya’s specifications. Some countries may not have stringent measures to detect and eliminate counterfeit or poor quality drugs. Others may be shutting a blind eye as to organ harvesting.

• detect the ability of the patient or his handler to communicate effectively with doctors. The language spoken in a destination country may be an impediment.

•  review the agreement entered into between the health care the facility, the group arranging the trip and the patient because foreign medical facilities or country policies may make it difficult a patient to pursue a legal claim.

• facilitate the patient to assess the treatment deal by providing data. Advise the patient impartially for example if a patient is terminally ill the assessors are sure that referring him or her abroad will not do anything to save his or her life, then there is no need to refer the patient abroad.

•  detect the source the organs the patient is receiving to reduced chances of patients receiving parts source unethically e.g from children, the destitute, and prison inmates. This unethical and at worst illegal and can lead to litigation.

• ensure that the patient’s medical condition is documented and well-controlled before departure. After treatment, the patient must receive a treatment summary. The records, including any post-mortem reports, must be repatriated Kenya and registered with the Kenya National Patients Register and the Kenya National Cause of Death Register.

The law will not stop patients who choose to go abroad for treatment, rather it will monitor “the how and the who”by pre-approving and monitoring healthcare facilities, groups and individuals arranging medical trips abroad for Kenyans.

When Can A Judge Disqualify Himself?

According to Lord Hewart CJ in R vs Sussex, “it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

That is why sometimes a party to a court process, including the judge, may want a presiding judge (or magistrate) to disqualify himself from hearing the matter in court. Most commonly this happens when there is a perception that the judge may be biased in favour of or against one party or that a reasonable objective observer would think he might be. This could arise if, for example, the judge has:

• a financial interest in the outcome of the case. The rationale being that one cannot be a judge in his own cause
• a personal interest in the subject matter, or has a relationship with someone who is interested in it
• personal knowledge about the parties or the facts of the case to a point where he can be a material witness
• a background or experience, such from his prior work as a lawyer has acted as counsel for a party
• communicated with lawyers or non-lawyers of one party in absence of the others
• made biased rulings, comments or conduct during the hearing

In 2013 at Eldoret High court, (miscellaneous criminal application no. 82 of 2013), Barnaba Kipsongok Tenai applied for the Magistrate to be disqualified from hearing his criminal case on the grounds that she had shown open animosity towards him and his lawyer, Mr Omwenga.

Tenai, the applicant was arraigned in an Eldoret Magistrate's court on 27th May 2008 on a criminal charge. He was released on bond. While out on bond, he failed to attend the court because, on the day he was expected in the court, he was attending a different court. Tenui had been expected in court on an earlier date, but this day, the trial Magistrate was absent. So he was informed by the court's Clerk to return to court on 17^th September, 2012. But on 17^th, he also had another criminal trial at the Kapsabet Law Courts. He attended the Kapsabet Court and so was absent from the Eldoret Court. The Eldoret court cancelled his bond.

So, Tenai went to High court and had the bond terms were reinstated (Criminal Application No.137 of 2012).
The magistrate refused to honour the bail terms. For this Mr Tenui was of the view that from the trial Magistrate's attitude and behaviour, she cannot be deemed as impartial and if the trial continues before her, there was a likelihood of a miscarriage of justice. Therefore having no more trust in the trial court, he made an application that the trial Magistrate Hon. Dolphina Alego disqualifies herself from hearing the matter and the case to be transferred and heard before a different magistrate.
During this application hearing, a twenty-minute altercation between the magistrate and Tanui’s lawyer ensued in an open court during which exchange Hon. Dolphina told him that she had been seen him at the Judges and Magistrates Vetting Board. She dismissed the application to disqualify herself.

Not satisfied, MrTenui, went to the High court. Here, under oath, he testified that the altercation that ensued between his counsel and the learned Magistrate Hon. Dolphina Alego on 20th May, 2013 for 20 minutes was about a personal grievance that the Honourable Magistrate had against his counsel. Yet despite his advocate's plea that the personal scores be privately settled in Chambers, she insisted that the application seeking that she recuses herself from the trial be heard in an open court.

Miss Ruto appearing for Dolphina Alego, the magistrate, did not oppose the application. In her own words, she submitted that for justice to be seen to be done, the criminal trial should be heard by another Magistrate other than the current trial Magistrate. She also stated that there was a likelihood of a miscarriage of justice on grounds that are personal between Mr Tenu's Lawyer and the Magistrate.

After a full hearing at the High court, the Judge concluded that the only issue for determination was whether the trial Magistrate had exhibited bias against the Applicant and by and large his lawyer to warrant a transfer of the criminal trial from her court.

The Judge found that the facts of the case spoke for themselves. The trial Magistrate by openly quarrelling the Applicant's Counsel on matters not related to the trial before her was a clear signal that she was angry or bitter with him. This set the stage for the perception that the ends of justice would not be met and that justice would not prevail. As such the Judge concurred with Tenui that due to the exhibited bias by the Hon. Magistrate, It was clear that fairness in the administration of justice would not prevail and that the trial was unlikely to proceed in an impartial manner.

On 23rd July 2014, the High Court ruled that Tanui’s criminal case be transferred for trial before another Magistrate.

Was that a Sting Operation or an Entrapment

Recently in the print, video, audio, social and gutter media, there was a story about a 27-year-old woman who was detained by police in Nairobi for attempting to sell a new-born child to undercover journalists. It was hot news.

Here at Pro Bono Publico, we cannot purport to be moral judges of the whys and why nots of selling own children. We have moralists for that. All that we ask is whether, by dint of the way the story was reported, there is the possible violation of the woman’s rights by the good meaning journalist.

For one the splashing of her images all over the media leaves her with little hope of fair trial should the case end up in court. The stigma associated with the apparent lack of apathy for one’s own child is likely to influence the prosecution, the defence and the judging. Furthermore, even if the case is not tried in a court of law the trial and condemnation by public opinion leave her ostracised by society.

Secondly, the process of uncovering the story appears too close to a violation of the law on the part of the “investigators”. Criminal law requires that one does not breach a law in the name of testing whether the law works or whether the law enforcers are alert. Well, the “investigators” in this case did try to cover their backs by calling in the police officers at the end of the sting operation. But by then maybe the law had already been broken.

Entrapment

Also one cannot induce another to break a law then arrest the person for breaking the law. If the journalist procured and enticed a broker and commissioned the broker to go and torment a suffering mother into selling her infant, then oh no! You cannot do that.  It is called entrapment and it is against the law.

But, that is only the law.

As for the journalist, it is definitely unethical to entice someone who is suffering mental anguish and contemplating many options to get herself out the anguish to take an option that would violate the law.

Are there any pro bono advocates out there to look into this case? Fida Kenya?

CHAPTER 6 KENYA CONSTITUTION - LEADERSHIP AND INTEGRITY

Responsibilities of Public Officers

73. (1) Authority assigned to a State officer -

(a) is a public trust to be exercised in a manner that

(i) is consistent with the purposes and objects of this Constitution;
(ii) demonstrates respect for the people;
(iii) brings honour to the nation and dignity to the office; and
(iv) promotes public confidence in the integrity of the office; and

(b) vests in the State officer the responsibility to serve the people, rather than the power to rule them.

(2) The guiding principles of leadership and integrity include -

(a) selection on the basis of personal integrity, competence and suitability, or election in free and fair elections;

(b) objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices;

(c) selfless service based solely on the public interest, demonstrated by-

(i) honesty in the execution of public duties; and
(ii) the declaration of any personal interest that may conflict with public duties;(d) accountability to the public for decisions and actions; and

(e) discipline and commitment in service to the people.

74. Before assuming a State office, acting in a State office, or performing any functions of a State office, a person shall take and subscribe the oath or affirmation of office, in the manner and form prescribed by the Third Schedule or under an Act of Parliament.

75. (1) A State officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids-

(a) any conflict between personal interests and public or official duties;

(b) compromising any public or official interest in favour of a personal interest; or

(c) demeaning the office the officer holds.

      (2) A person who contravenes clause (1), or Article 76, 77 or 78(2) -

(a) shall be subject to the applicable disciplinary procedure for the relevant office; and/p>

(b) may, in accordance with the disciplinary procedure referred to in paragraph (a), be dismissed or otherwise removed from office.

      (3) A person who has been dismissed or otherwise removed from office for a contravention of the provisions mentioned in clause (2) is disqualified from holding any other State office.

Financial probity of State officers.

76. (1) A gift or donation to a State officer on a public or official occasion is a gift or donation to the Republic and shall be delivered to the State unless exempted under an Act of Parliament.

(2) A State officer shall not-

(a) maintain a bank account outside Kenya except in accordance with an Act of Parliament; or

(b) seek or accept a personal loan or benefit in circumstances that compromise the integrity of the State officer.

Restriction on activities of State officers.
77. (1) A full-time State officer shall not participate in any other gainful employment.

(2) Any appointed State officer shall not hold office in a political party.

(3) A retired State officer who is receiving a pension from public funds shall not hold more than two concurrent remunerative positions as chairperson, director or employee of-

(a) a company owned or controlled by the State; or

(b) a State organ.

(4) A retired State officer shall not receive remuneration from public funds other than as contemplated in clause (3).

Citizenship and leadership.
78. (1) A person is not eligible for election or appointment to a State office unless the person is a citizen of Kenya.

(2) A State officer or a member of the defence forces shall not hold dual citizenship.

(3) Clauses (1) and (2) do not apply to-

(a) judges and members of commissions; or

(b) any person who has been made a citizen of another country by operation of that country's law, without ability to opt out.

79. Parliament shall enact legislation to establish an independent ethics and anti-corruption commission, which shall be and have the status and powers of a commission under Chapter Fifteen, for purposes of ensuring compliance with, and enforcement of, the provisions of this Chapter.

80. Parliament shall enact legislation-

(a) establishing procedures and mechanisms for the effective administration of this Chapter;

(b) prescribing the penalties, in addition to the penalties referred to in Article 75, that may be imposed for a contravention of this Chapter;

(c) providing for the application of this Chapter, with the necessary modifications, to public officers; and

(d) making any other provision necessary for ensuring the promotion of the principles of leadership and integrity mentioned in this Chapter, and the enforcement of this Chapter.

Proceeds Of Crime Anti-Money Laundering Act - Part 2 Money Laundering

Section
1. Short title.
2. Interpretation.
3. Money Laundering.
4. Acquisition, possession or use of proceeds of crime.
5. Failure to report suspicion regarding proceeds of crime.
6. Defence.
7. Financial promotion of an offence.
8. Tipping off.
9. Misrepresentation.
10. Malicious reporting.
11. Failure to comply with the provisions of this Act.
12. Conveyance of monetary instruments to or from Kenya.
13. Misuse of information.
14. Failure to comply with order of court.
15. Hindering a person in performance of functions under this Act.
16. Penalties.
17. Secrecy obligations overridden.
18. Client advocate relationship
19. Immunity where actions are exercised in good faith.
20. Protection of information and informer.

Interpretation
In this Act, unless the context otherwise requires-
"Agency" means the Assets Recovery Agency established under section
"designated non-financial businesses or professions" means- (a) casinos (including internet casinos);
(b) real estate agencies;
(c) dealing in precious metals; (d) dealing in precious stones;
(e) accountants, who are sole practitioners or are partners in their professional firms;
(f) non-governmental organisations;
(g) such other business or profession in which the risk of money laundering exists as the Minister may, on the advice of the Centre, declare;
"Fund" means the Criminal Assets Recovery Fund established under
"person" means any natural or legal person;
"proceeds of crime" means any property or economic advantage derived or realized, directly or indirectly, as a result of or in connection with an offence irrespective of the identity of the offender and includes, on a proportional basis, property into which any property derived or realized directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains or benefits derived or realized from such property from the time the offence was committed;
"property" means all monetary instruments and all other real or personal property of every description, including things in action or other incorporeal or heritable property, whether situated in Kenya or elsewhere, whether tangible or intangible, and includes an interest in any such property and any such legal documents or instruments evidencing title to or interest in such property;
"realizable property" means- (a) property laundered;

(b) proceeds from or instrumentalities used in, or intended to be used in money laundering or predicate offences;
(c) property that is the proceeds of, or used, or intended or allocated for use in, the financing of any offence; and
(d) property of corresponding value;
"reporting institution" means a financial institution and designated non- financial business and profession;
"tainted property" in relation to an offence means-
(a) any property used in, or in connection with, the commission of the offence;
(b) any proceeds of the offence; or
(c) any property in Kenya which is the proceeds of a foreign offence in respect of which an order may be registered, and when used without reference to a particular offence means tainted property in relation to an arrestable offence.
[Act No. 51 of 2012, s. 2, Act No. 14 of 2015, s. 48.]

PART II - MONEY LAUNDERING AND RELATED OFFENCES

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3. Money laundering
A person who knows or who ought reasonably to have known that property is or forms part of the proceeds of crime and-
(a) enters into any agreement or engages in any arrangement or transaction with anyone in connection with that property, whether that agreement, arrangement or transaction is legally enforceable or not; or
(b) performs any other act in connection with such property, whether it is performed independently or with any other person,
whose effect is to-
(i) conceal or disguise the nature, source, location, disposition or movement of the said property or the ownership thereof or any interest which anyone may have in respect thereof; or
(ii) enable or assist any person who has committed or commits an offence, whether in Kenya or elsewhere to avoid prosecution; or
(iii) remove or diminish any property acquired directly, or indirectly, as a result of the commission of an offence,
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4. Acquisition, possession or use of proceeds of crime
A person who-
(a) acquires; (b) uses; or
(c) has possession of,
property and who, at the time of acquisition, use or possession of such property, knows or ought reasonably to have known that it is or forms part of the proceeds of a crime committed by him or by another person, commits an offence.
[Act No. 51 of 2012, s. 3.]
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5. Failure to report suspicion regarding proceeds of crime
A person who willfully fails to comply with an obligation contemplated in section
44(2) commits an offence.
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6. Defence
If a person is charged with committing an offence under section 3, 4 or 5, that person may raise as a defence the fact that he had reported a suspicion under the terms and conditions set forth in section 44 or, if the person is an employee of a reporting institution, that he has reported information pursuant to section 47(a).
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7. Financial promotion of an offence
A person who, knowingly transports, transmits, transfers or receives or attempts to transport, transmit, transfer or receive a monetary instrument or anything of value to another person, with intent to commit an offence, that person commits an offence.
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8. Tipping off
(1) A person who-
(i) knows or ought reasonably to have known that a report under section
44 is being prepared or has been or is about to be sent to the Centre;
and
(ii) discloses to another person information or other matters relating to a report made under paragraph (i).
(2) In proceedings for an offence under this section, it is a defence to prove that the person did not know or have reasonable grounds to suspect that the disclosure was likely to prejudice a report made under subsection (1).

[Act No. 51 of 2012, s. 4.]

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9. Misrepresentation
A person who knowingly makes a false, fictitious or fraudulent statement or representation, or makes, or provides, any false document, knowing the same to contain any false, fictitious or fraudulent statement or entry, to a reporting institution, or to a supervisory body or to the Centre, commits an offence.

1 1. Failure to comply with the provisions of this Act
(1) A reporting institution that fails to comply with any of the requirements of sections 44, 45 and 46, or of any regulations, commits an offence.
(2) In determining whether a person has complied with any requirement of the provisions referred to in subsection (1), the court shall have regard to all the circumstances of the case, including such custom and practice as may, from time to time, be current in the relevant trade, business, profession or employment, and may take account of any relevant guidance adopted or approved by a public authority exercising supervisory functions in relation to that person, or any other body that regulates or is representative of the trade, business, profession or employment carried on by that person.
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12. Conveyance of monetary instruments to or from Kenya
(1) A person intending to convey monetary instruments in excess of the amount prescribed in the Second Schedule to or from Kenya shall, before so doing, report the particulars concerning that conveyance to a person authorised by the regulations for that purpose.
(2) A person authorised to receive a report made in subsection (1) shall, without delay, send a copy of the report to the Centre.
(3) A person who willfully fails to report the conveyance of monetary instruments into or out of Kenya, or materially misrepresents the amount of monetary instruments reported in accordance with the requirements of subsection (1) commits an offence.
(4) Any monetary instrument used in a suspected violation of subsection (3), or which an authorised officer has reasonable grounds to suspect is tainted property, may be temporarily seized by an authorised officer for as long as is necessary to obtain a court order pursuant to section 68 or 82, but not later than five days.
(5) An authorised officer making a temporary seizure under subsection (4) shall give the person from whom the monetary instruments are seized-
(a) a receipt specifying-
(i) the name, agency, rank of the seizing officer; (ii) contact information for that officer and agency; (iii) time, date and location of seizure;
(iv) description (including serial numbers) of the value of and types of instruments seized; and
(b) a formal notice of the authorised officer's intent to initiate forfeiture proceedings under this Act against the seized monetary instruments.
(5A) An authorised officer shall, upon discovery of a false declaration or disclosure of monetary instruments or a failure to declare or disclose them, enquire from the person in whose possession the monetary instruments are found the origin thereof and their intended use, and shall record the same in writing signed by the person in possession of the monetary instruments and countersigned by himself.

(5B) The authorized officer shall indicate in the prescribed form-
(a) the amount comprised in the monetary instruments declared or disclosed; and
(b) the identity of the bearer of the monetary instruments,
and such information shall be retained for not less than seven years.
(5C) The information provided under subsection (5B) shall be used by the appropriate authorities when-
(a) the subsequent declaration by the same person exceeds the prescribed threshold specified in the Fourth Schedule; or
(b) there is false declaration; or
(c) there is suspicion of the commission of any other offence.
(6) An authorised officer, other than Agency Director, shall immediately but not later than five days surrender monetary instruments seized under subsection (4) to the Agency Director in such manner as the Agency Director may direct.
(7) If the authorised officer fails to obtain an order under section 68 or 82 against the temporarily seized monetary instruments within five days from the date of seizure pursuant to subsection (4), then, unless that period is otherwise extended by the Court, the monetary instruments shall be returned forthwith to the person from whom it was taken.

13. Misuse of information
(1) A person who knows or ought reasonably to have known-
(a) that information has been disclosed under the provisions of Part II; or
(b) that an investigation is being, or maybe, conducted as a result of such a disclosure,
and directly or indirectly alerts, or brings information to the attention of another person who will or is likely to prejudice such an investigation, commits an offence.
16. Penalties
(1) A person who contravenes any of the provisions of sections 3, 4 or 7 is on conviction liable-
(a) in the case of a natural person, to imprisonment for a term not exceeding fourteen years, or a fine not exceeding five million shillings or the amount of the value of the property involved in the offence, whichever is the higher, or to both the fine and imprisonment; and
(b) in the case of a body corporate, to a fine not exceeding twenty-five million shillings, or the amount of the value of the property involved in the offence, whichever is the higher.
(2) A person who contravenes any of the provisions of sections 5, 8, 11(1) or
13 is on conviction liable-
(a) in the case of a natural person, to imprisonment for a term not exceeding seven years, or a fine not exceeding two million, five hundred thousand shillings, or to both and
(b) in the case of a body corporate, to a fine not exceeding ten million shillings or the amount of the value of the property involved in the offence, whichever is the higher.
(3) A person who contravenes any of the provisions of section 12(3) is on conviction, liable to a fine not exceeding ten percent of the amount of the monetary instruments involved in the offence.
(4) A person who contravenes the provisions of section 9, 10 or 14 is on conviction liable-
(a) in the case of a natural person, to imprisonment for a term not exceeding two years, or a fine not exceeding one million shillings, or to both and
(b) in the case of a body corporate, to a fine not exceeding five million shillings or the amount of the value of the property involved in the offence, whichever is the higher.
(5) Deleted by Act No. 51 of 2012, s. 6.
(6) Where any offence under this Part is committed by a body corporate with the consent or connivance of any director, manager, secretary or any other officer of the body corporate, or any person purporting to act in such capacity, that person, as well as the body corporate, shall be prosecuted in accordance with the provisions of this Act.
[Act No. 51 of 2012, s. 6.]
17. Secrecy obligations overridden
(1) The provisions of this Act shall override any obligation as to secrecy or other restriction on disclosure of information imposed by any other law or otherwise.
(2) No liability based on a breach of an obligation as to secrecy or any restriction on the disclosure of information, whether imposed by any law, the common law or any agreement, shall arise from a disclosure of any information in compliance with any obligation imposed by this Act.
[Act No. 51 of 2012, s. 7.]

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18. Client advocate relationship
(1) Notwithstanding the provisions of section 17, nothing in this Act shall affect or be deemed to affect the relationship between an advocate and his client with regard to communication of privileged information between the advocate and the client.
(2) The provisions of subsection (1) shall only apply in connection with the giving of advice to the client in the course and for purposes of the professional employment of the advocate or in connection and for the purpose of any legal proceedings on behalf of the client.
(3) Notwithstanding any other law, a Judge of the High Court may, on an application being made to him in relation to an investigation under this Act, order an advocate to disclose information available to him in respect of any transaction or dealing relating to the matter under investigation.
(4) Nothing in subsection (3) shall require an advocate to comply with an order under that subsection to the extent that such compliance would be in breach of subsection (2).
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19. Immunity where actions are exercised in good faith
A suit, prosecution or other legal proceedings shall not lie against any reporting institution or Government entity, or any officer, partner or employee thereof, or any other person in respect of anything done by or on behalf of that person with due diligence and in good faith, in the exercise of any power or the performance of any function or the exercise of any obligation under this Act.
20. Protection of information and informers
(1) Where any information relating to an offence under this Act is received by the Centre or an authorised officer, the information and the identity of the person giving the information shall be kept confidential.
(2) Subsection (1) shall not apply to information and identity of a person giving the information-
(a) where it is for the purposes of assisting the Centre or the authorised officer to carry out their functions as stated under this Act; or
(b) with regard to a witness in any civil or criminal proceedings- (i) for the purposes of this Act; or
(ii) where the court is of the opinion that justice cannot fully be done between the parties without revealing the disclosure or the identity of any person as the person making the disclosure.

Of Defilement and the Apparent Age of the Child

Two case same sentence and a Precedent

Case one: Memoses Ondachi
A boda-boda operator who admitted defiling a 17-year-old girl was jailed for 15 years. A Nakuru court heard that Memoses Ondachi committed the offence in the house belonging to the minor's mother at Kapasia estate within Nakuru town between January 1 and May 11, 2018.
"The court has considered the charges and circumstances under which the offence occurred and has noted that the accused admitted, of his own volition, committing the offence. Further, because he is a first offender, and had saved the court time by admitting the charges, the court is inclined to give him the minimum sentence of 15 years in prison," the Principal Magistrate Joe Omido ruled.

The Affair
According to the police report, the girl dropped out of School and has been living with her a mother doing odd jobs for her upkeep. A sexual relationship developed between the girl and Ondachi, who has also been living with the girl's mother as a boyfriend. Her brother found out about the affair and reported to their mother. The Mother reported to the police at Bondeni Police Station, Ondachi was arrested and presented in court.
He admitted to the charge and was given 15 yrs.

Case two: Judith Wandera
A 24-year-old woman admitted to defiling a 16-year-old boy was sentenced to 15 years in jail.
A sexual relationship developed between Judith Wandera, a resident of Kicomi in Kisumu city and a 16-year-old boda-boda operator. During the period of their relationship, the two were arrested twice and were each time asked to stop the relationship after the boy's mother complained to the police citing the age-difference. The boy refused each time and went back to the woman's house.
Principal Magistrate Joan Wambilyanga in her judgement said both admitted to having sex, sometimes protected, sometimes unprotected many times. Wandera claimed that looking at the boy's physical appearance, and considering that he wore dreadlocks, drank alcohol and used drugs, she could not tell he was underage. But the magistrate said although the Sexual Offences Act allows an accused to cite this as a defence, especially when physical appearances look deceiving on this occasion, the court found that the woman made no efforts to establish the age of her lover and there was no evidence the complainant lied about his age.
She was given 15 years (the minimum sentence)

Law of precedence

At Malindi, Criminal Appeal No.32 of 2015, (Appeal originating from the conviction and sentence by Hon. L. N. Wasige-SRM in Kilifi CR NO.16 of 2012), Martin Charo (Appellant) Versus Republic (Respondent)

Excerpt from the judgement
The appellant, aged 24 years, was charged with the offence of defilement contrary to Section 8(1)(3) of the Sexual Offences Act and was jailed for 20 years. At the trial court, it had transpired that the thirteen-year old  girl had known Martin Charo for about three years during which time an intimate bond formed between them. On 2nd January of 2012, the girl and her siblings were at the beach when she dodged them and went to Charo's house.  When her brother went to get her she refused to leave and remained in the house. Late that night, his brother came with other people to collect but again she refused and instead the two lovers started shouting "thieves!" forcing the brothers to withdraw. The duo then escaped from the house to Charo's parents home. There they stayed for there days during the time, they testified, they had sex many times and then the girl went home. She was taken to the police, Charo was arrested, prosecuted and given 20  years in prison.

He appealed.
After being heard, the appellant judge had this to say:

"I came to see you, have sex then I go back home. When my brothers came you were inside your house. You are Martin Charo. On 2.1.2012 we were together. You were not checked by the doctor."

The question then is, do the circumstances of the case paint a picture of someone who was defiled?  The circumstances clearly show that it is the complainant who went to the appellant's house to have sex and then go home. She even dodged her brothers. When her brothers went there at night to collect her, she opted to remain with the appellant. If she was a young girl then why did she go to the appellant's home to have sex?
The offence of defilement should not be limited to age and penetration. If those were to be taken as conclusive proof of defilement, then young girls would freely engage in sex and then opt to report to the police whenever they disagree with their boyfriends. The conduct of the complainant plays a fundamental role in a defilement case. One can easily conclude that the complainant was defiled after hearing her evidence. Several issues come into focus. Did the complainant report the defilement immediately after the incident? Was she threatened after the incident? How long did it take for her to report? Was there a threat to her life? How long was the relationship? Were the parents aware of the relationship? All these issues lead to the circumstances of the case as envisaged under Section 8(5) of the Sexual Offences Act.
Conviction of a defiler should be based on actual circumstances and proof that the complainant was indeed defiled. This is more so when one considers the lengthy sentences imposed by the law for such an offence. It is unfair to send someone to 20 years imprisonment yet the complainant was enjoying the relationship.
The girl testified that she went to the appellant's parents' home, they continued to have sex and then went back home. Those cannot be the circumstances of a victim of defilement. Even if the appellant did not give evidence as to the steps he took to ascertain the age of the complainant, the circumstances are that the complainant behaved like an adult. She left her parents' home and went to the appellant's house purposely to have sex. The appellant should not be condemned for the voluntary acts of the complainant.
I do find that the appellant falls within the defence under section 8(5) of the Sexual Offences Act. It is the girl who behaved like an adult. The appellant was not expected to inquire from several people about the age of the complainant. The relationship continued for quite a long time to the extent that age became a non-issue.

I do find that the appeal is merited and is hereby allowed. The appellant shall be set at liberty unless otherwise lawfully held.

Can CAK Install Systems for Monitoring Mobile Phones?

The Communications Authority of Kenya (CA) was installing all planning to install Device Management Systems (DMS) on the Communication Services Provider’s networks. Ostensibly, the DMS was meant to:

1. Monitor fraudulent international calls such Sim boxing operators in Kenya terminating international traffic for neighbouring countries.
2. Identify fake devices from their IMEI

But, the Kenya Human Rights Commission (KHRC) insisted that CA’s reason for installing the system was to give them direct access to confidential data in people’s phones. This, they argued, was against privacy laws.

The matter went to the High Court as a Constitutional Petition No 86 of 2017, Kenya Human Rights Commission vs Communications Authority of Kenya & 4 others, and was heard by, Justice John M Mativo.

Brief facts:

The petition challenged the introduction of a DMS into the networks of Telecommunication companies who provided voice, data, and mobile money transfer services to their customers because the device had the capacity to access customers' information illegally.

Also, the device was introduced without public consultation or public participation and as such there was no guarantee that the information accessed would remain confidential. Furthermore, the intended purpose of its introduction, which was the blocking of fake and duplicate IMEI, was capable of being achieved without intruding into the privacy of Kenyans. Therefore, the Petitioner stated that the device created unjustified limitations to the right to privacy and also the rights guaranteed under articles 40, 46, 47 and 50 of the Constitution.

The petition succeeded

Issues Determined:

Issue: Whether the installation of DMS violated the right to privacy.

Found: The installation of the device was an unjustifiable limitation to privacy as there were alternative measures that could achieve that same purpose with a lesser degree of limitation.  It was shown that in the past, 1.89 million illegal devices were switched off because Mobile Network Owners were able to identify and block blacklisted devices.

Issue: Whether the installation of a DMS system in order to combat illegal devices was within the mandate of the Communications Authority of Kenya (CAK).

Found: Combating illegal devices was not a CAK mandate. There were other statutory bodies mandated to combat counterfeits, ensure standards and curb the importation of illegal devices such as importation laws, laws governing counterfeit goods, the Kenya Bureau of Standards, the Kenya Revenue Authority and the Kenya National Police Service. Those laws and institutions were not shown to be insufficient.

Issue: Whether the acquisition and installation of the DMS was undertaken in a process that fulfilled public participation requirements.

Found: .the decision, policy and or regulation seeking to implement the DMS system was adopted in a manner inconsistent with the Article 46(1) Constitution, section 5 (2) of KICA and the Consumer Protection Act in that there was no adequate public participation prior to its adoption and implementation hence the said decision, policy and or regulation was null and void for all purposes.

Issue: What were the considerations of the Courts in deciding matters relating to limitations placed on the enjoyment of fundamental rights and freedoms?

Found: The DMS could only pass the test provided for in article 24 of the Constitution, for the limitation of fundamental rights and freedoms if it was adopted legally.

Issue: Whether the installation of a device which could access personal information belonging to subscribers of a telecommunications network, without consulting those subscribers, was a violation of the subscribers' consumer rights.

Found: Subscriber information could only be released under terms prescribed in section 27A of the Kenya Information and Communications Act. There was no evidence tendered to show that the DMS system in question fit into the circumstances contemplated under the said section 27A.

Therefore, the installation of a device with the capacity to access information belonging to subscribers is unconstitutional and the communication authority was therefore prohibited from implementing its DMS installation project meant to collect the IMEI, IMSI, MSISDN and CDRs of the subscribers.

Should Couples Share Property by half-half on Divorce?

Section 45(3) of the Kenya Constitution 2010 states and I quote "Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage".

Interpreting this to mean that
parties to a marriage are entitled to equal share of the property acquired during the duration of the union, the Federation of Women Lawyers in Kenya would like the clause used to modify Section 7 of the Matrimonial Properties Act 2013 (modified 2014)  which reads

Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.

This is the clause FIDA wants changed to read: 

Ownership of matrimonial property vests in the spouses on a 50/50 basis and shall be divided on a 50/50 basis between the spouses if they divorce or their marriage is otherwise dissolved.

But looking at Section 2 of the Matrimonial Properties act the word contribution as used in this act is defined thus:

“contribution” means monetary and non-monetary contribution and includes—

(a) domestic work and management of the matrimonial home;
(b) child care;
(c) companionship;
(d) management of family business or property; and
(e) farm work;

 FIDA went to court and after a lengthy litigation, the case was dismissed and the Matrimonial Properties act upheld as currently written.

Can A Lawyer Plead Against the Clients Instruction?

The U.S. Supreme Court in Washington, threw out a death row inmate’s conviction for triple murder because his lawyer ignored his objections and told jurors that the defendant killed the victims.

Robert McCoy from Louisiana had been accused and convicted of killing Yolanda's (his estranged wife) mother, Christine Young,
Yolanda's son Gregory Colston, and his stepfather Willie Young,  in Bossier City, Louisiana. All were shot in the head at close range in 2008. When he was arrested in Idaho days after the murders. A gun was found in the 18-wheeler truck in which he was travelling. McCoy has maintained his innocence, saying he was out of state at the time of the triple murder, but police have linked the gun to the murders.

Mr English, a lawyer who was hired by the defendant’s parents to defend him, believed the evidence against McCoy was overwhelming and would result in death penalty. So he sought to negotiate a plea deal with prosecutors that would result in a life sentence. The plan was to convince the jury that McCoy should be found guilty of second-degree murder instead of the more serious first-degree murder. McCoy rejected that plan, but Mr English went ahead with it.  He told the jury that McCoy had killed the three victims. McCoy was subsequently found guilty of first degree murder in August 2011 and sentenced to death by lethal injection.

He obtained new lawyers and filed several motions in hopes of getting a new trial. But each of those motions were argued and then rejected in Bossier Parish District Court. He went to the supreme court.

The supreme court ruled 6-3 that Robert McCoy, 44, should receive a new trial.  The justices found that McCoy’s right to legal representation at the trial under the U.S. Constitution’s Sixth Amendment was violated because McCoy maintained his innocence, and therefore a concession of guilt should not have arisen.

The Supreme Court’s ruling set a new precedent on whether a lawyer can concede a defendant’s guilt over the client’s stated objections.

Is there Ageing Disgracefully?

Dr David Goodall, a prominent ecologist and botanist from Melbourne, Australia has travelled to Switzerland for is planned assisted suicide. He is 104 years. His main regret for now is that he was forced to travel overseas for something that could have been done at home, because his country does not allow euthanasia.

David Goodall does not have a terminal illness but says his quality of life has deteriorated and that he wants to die. He was
barred from seeking help to end his life in Australia, so he was forced to travel to Switzerland. Goodall, who according to Exit International attempted but failed to commit suicide on his own earlier this year, secured a fast-track appointment with assisted dying foundation, Eternal Spirit, in Basel.

Assisted suicide is illegal in most countries. In Australia, the legislation allowing it will take effect in June 2019. However it will only allow euthanasia in cases of terminally ill patients of sound mind with a life expectancy of less than six months. But in Switzerland, anyone who is of sound mind and who has over a period of time voiced a consistent wish to end their life can request so-called assisted voluntary death (AVD).

Eternal Spirit, one of several foundations in Switzerland that assist people who want to end their lives, said Wednesday that Goodall had undergone two medical visits by different doctors since arriving in the city and three people of the foundation’s board. If all five persons give their ok, Goodall will be able to open the infusion tomorrow.

Infusion

In assisted dying, the person must be physically capable of carrying out the final deed on their own. This final act could be to take and drink sodium pentobarbital, an effective sedative that in strong enough doses causes the heart muscle to stop beating. But, since the substance is alkaline and burns a bit when swallowed or to open the cap of the in intravenous infusions.

A professional prepares the needle, but it is up to the patient to open the valve that allows the short-acting barbiturate to mix with a saline solution and begin flowing into their vein.

Before he left for Switzerland, his family held for him a 104 years birthday. But Goodall was not celebrating the milestone. He said that he had lived for too long and was ready to die.

“I greatly regret having reached that age. I would much prefer to be 20 or 30 years younger,” he told the Australian Broadcasting Corp. during the festivities in early April.

When asked whether he had a nice birthday, he told the news organization: “No, I’m not happy. I want to die. ... It’s not sad, particularly. What is sad is if one is prevented.”

“My feeling is that an old person like myself should have full citizenship rights, including the right of assisted suicide,” the 104-year-old man added.

When asked whether he has any hesitation about his plans to die, he responded: “No, none whatsoever.”

Can one who inherited land sell it?

If someone inherits land, does he hold that land on behalf of his or her children? Can one sell such land without consent from the children?

Case study: Jemutai Tanui v. Juliana Jeptepkeny & 5 Others

Issue

1. Whether the fact that a proprietor's land was inherited from her father means that such a proprietor held ownership of the land in a trust situation for the benefit of her children, and could therefore not sell or transfer the land in whole or in part to third parties, without the children’s consent.

Land - trust relationships – the rights of a proprietor who inherited land from her father – whether the fact that the proprietor inherited the land automatically gave rise to a trust relationship, concerning the land, in favour of her children – Land Registration Act, No. 3 of 2012, section 28.

Held:

1. The plaintiff was the beneficial owner of portions of land transmitted to her via succession proceedings, in respect of her late father. Accordingly, the plaintiff was the registered owner of the suit land and as such she had all the rights that a registered owner to the land would have. Those rights would include rights to subdivide, to transfer and sell the land.
2. The plaintiff held the land subject only to leases, charges and overriding interests as recognized in section 28 of the Land Registration Act, No. 3 of 2012.
3. Where one became a proprietor through transmission, unless restrictions were placed on that transmission, there was no automatic trust arising from the transmission. For a trust to arise, the transmission would have to be one that clearly indicated that the land was bequeathed to the proprietor in trust for her children.
4. The proprietor was not bound to consult her children when she wanted to subdivide and sell her land. There was no trust relationship, as concerned the land, between the proprietor and her children.

The application was allowed.

Prosecution Blunders That Favour Suspects

Whether willingly or unwittingly, blunders by magistrates and prosecutors cause suspects to be freed either during the first trial or on appeal. The most common errors are the failure to indicate the language to be used throughout the trial, the charge sheets citing the wrong sections of the law, failure to admit the suspects’ defence before convicting them, relying on
single witnesses, and relying on contradictory evidence. A trial court must comply with sections of the Criminal Procedure Code, specify the offence, and cite the section of the law in the sentence.

Citing the incorrect Law: Citing the incorrect section of the law and Penal Code renders the charge defective and non-existent. This error is mostly introduced by the prosecutors and will be quickly noticed by the magistrate or the defence.

Relying on single witnesses: It is notable that  Justice Francis Gikonyo of the High Court in Meru recently ruled that there is no prohibition against convicting a suspect on the evidence of a single witness if the evidence is sufficient. 

Case Study:  Joseph Ndegwa Mugo was charged with the offence of defiling a girl under the age of 11 years contrary to section 8(2) of the Sexual Offences Act.  He also faced an alternative charge of indecent act with a child contrary to section 11(1) of the same Act.  He was tried before the Resident Magistrate, Nyahururu and was convicted on the main charge.  He was sentenced to 20 years imprisonment. He appealed against both conviction and sentence and was released by the High Court in Nyeri after it found out that the trial magistrate had rejected his defence.

For example, the charges levelled against Mr Ndegwa did not conform to the law because the charge sheet lacked words like ‘committing’, ‘unlawfull’y and 'intentionally’. Lack of such words render the charge fatally and incurably defective because a charge for any criminal offence must be specifically stated and communicated to the suspect.

Furthermore, in a defilement case, a trial court must record the questions a minor is asked, as well as their answers prior to the admission of the evidence. The court must satisfactorily test the minor called to give evidence,  and record its opinion on the sufficiency of the minors intelligence and whether the child can give sworn evidence.  The court must form and record its opinion on whether the minor appreciates the court, appreciates the responsibility and duty to tell the truth, and understands the nature and solemnity of the oath, 

All these must be recorded so as to enable an appellate court to arrive at a decision on whether this important factor was rightly decided. Otherwise, the failure to record the terms of satisfaction may be fatal to the conviction.

In the Ndegwa case, the appellate court noted the magistrate failed to observe all the above steps,  including failing to record the procedures and the language used in the trial and the appeal succeed.