Odira Law

14/07/2024

Do we really know the meaning of life?
Who am I ?
Where did I come from?
Why am I here?
For how long will I be here?
Where will I go from here?
If we can answer these five questions correctly, only then can we understand the true meaning of life.

28/08/2022

09/06/2022

Justice Odunga does it again. In a ground breaking judgment delivered today Tuesday 7th June 2022, in Machakos Petition 20 of 2018 Peter Muinde vs IRA, he has ordered that the IRA and government to meet all the claims arising out of 2 horrible traffic accidents that took the lives of several Passengers. The Matatu owner had claimed that he met his statutory obligation to take out third party insurance cover and the action of the state and IRA in allowing INVESCO assurance to operate when it couldn't meet claims went against the legitimate expectations of the policy holders. Though the judge stated that the judgment doesn't apply to every claim save for those before him, there is no doubt that an avalanche of claims will be filed against IRA over Invesco, Explico and AMACO insurance companies. It's high time the government woke up and properly regulated the Third Party Insurance Sector

13/02/2022

WHETHER THE PROVISIONS OF SECTIONS 43(5) AND (6) OF THE ELECTIONS ACT, 2011 REQUIRING A PUBLIC OFFICER WHO INTENDS TO CONTEST AN ELECTION TO VACATE OFFICE SIX MONTHS BEFORE THE ELECTION DATE ARE JUSTIFIABLE AND REASONABLE IN AN OPEN AND DEMOCRATIC SOCIETY_

69. To understand the import of section 43(5) of the Elections Act, 2011, it is necessary that we examine the relevant constitutional provisions regarding the qualification for election to a public office. Article 137 (2)(b) of the Constitution provides that a person is not qualified for nomination as a presidential candidate if the person is a public officer or is acting in any State or other public office. The provisions of this clause do not apply to the President, Deputy President or a Member of Parliament.

70. Article 99 (2)(a) of the Constitution provides that a person is disqualified from being elected as a member of Parliament if the person is a State officer or public officer other than a member of Parliament. Article 180(2) of the Constitution provides that to be eligible for election as a County Governor, a person must be eligible for election as a Member of County Assembly. The qualification for election as a member of County Assembly is provided for in Article 193 of the Constitution. Article 193 (2)(a) provides that a person is disqualified from being elected as a member of county assembly if the person is a State officer or other public officer, other than a member of a county assembly.

71. A reading of the above provisions makes it abundantly clear that for a person to be eligible for election into public office in a general election, the person seeking to be elected must not be a State Officer or other public officer save for the categories of persons to whom the exclusion applies. In our view, by enacting the Elections Act, 2011 and more specifically section 43(5) and (6) thereof, Parliament sought to give full effect to the provisions of Articles 137, 99, 180, and 193 of the Constitution.

72. The provisions of sections 43(5) are not hollow. Lenaola, J. in the Charles Omanga petition (supra) observed as follows at paragraph 26 of his judgment:

“26. I also wish to state the impartiality of public servants is a cardinal value enshrined in Article 232(1) (a) of the Constitution which provides that the public servant and service must be responsive, prompt, impartial and equitable in the provision of services. How can a public servant espouse those principles if he is allowed to remain in office until the election date? Suppose a Judge who intends to run for an elective post (it is his right) is allowed to sit on the bench and preside over election related cases until the election date, where is his impartiality? Similarly, how can a Commissioner of the Independent Election and Boundaries Commission serving his last year in office and with ambition to run for elective office, be allowed to remain in office and oversee an election in which he is a candidate? The absurdity of both situations merely serves to show the justifiability of the need for public servants to leave public office within a reasonable time before the election in which they will be candidates.”

73. The requirements for neutrality and impartiality of public officers are also provided for in other relevant statutes and regulatory framework related to the conduct of public officers. Section 23(2) and (3) of the Leadership and Integrity Act, 2012 provides that:

“23 (2) An appointed State officer or public officer shall not engage in any political activity that may compromise or be seen to compromise the political neutrality to the office subject to any laws relating to elections.
(3) Without prejudice to the generality of subsection (2) a public officer shall not-
(a) engage in the activities of any political candidate or act as an agent of a political party or a candidate in an election.
(b) publicly indicate support for or opposition against any political party or candidate participating in an election.”

74. Section 12(1) of the Political Parties Act No. 11 of 2011 on the other hand bars public officers from being eligible to be a founding member of a political party, being eligible to hold office in a political party, engaging in political activity that may compromise or be seen to compromise the political neutrality of the person’s office, publicly indicate support for or opposition to any political party or candidate in an election. Clause 24 of the Public Service Code of Conduct and Ethics, 2016 provides, inter alia, that a public officer shall remain politically neutral during his term of employment.

75. The importance of political neutrality and impartiality of public officers during the term of employment cannot be overemphasized. We therefore fully agree with the findings of Lenaola, J. in the Charles Omanga petition on the necessity for public officers desirous of running for elective posts to resign in good time. The provisions of sections 43(5) and (6) also seek to promote, inter alia, the principle of good governance and the value of the integrity contemplated under Articles 10 (2)(c) of the Constitution.

76. It is also not lost on us that a general election has very strict timelines which political parties, the IEBC, aspirants and other stakeholders must adhere to in order to have free and fair election. One of the events that precedes a general election is the nomination of candidates by political parties pursuant to the provisions of section 13 of the Elections Act, 2011. It is only after the nomination process has taken place that the IEBC can proceed to print the necessary ballot papers which contain information on the candidates vying for a particular seat in a particular electoral area. The resignation of public officers at least six months before the general election therefore ensures that the IEBC has sufficient time to undertake its processes and that the calendar of the general election is not disturbed and/or interrupted unnecessarily.

PUBLIC SERVICE COMMISSION & 2 OTHERS v. ERIC CHERUIYOT & 16 OTHERS_CIVIL APPEAL NO. 119 OF 2017 Consolidated with CIVIL APPEAL NO. 139 OF 2017 (CORAM: D. K. MUSINGA (P), W. KARANJA & A. K. MURGOR, JJ.A. DATED: 8th February, 2022.)

13/02/2022

WHETHER COURTS HAVE POWER TO ALLOW ADDUCTION OF ADDITIONAL EVIDENCE EVEN AT THE APPEAL STAGE INCLUDING WHERE THE CASE HAS BEEN CONCLUDED BUT BEFORE JUDGMENT IF IN EXERCISE OF ITS DISCRETION IT IS JUDICIOUS TO DO SO_

39. We must deal with another matter, whether the order we shall make in this appeal can be defeated merely by fact the case proceeded to defence hearing, or on account of the case having been concluded.

40. In the case of Samuel Kiti Lewa v. Housing Finance Co. of Kenya Ltd [2015] eKLR Kasango, J. cited a Uganda High Court, Commercial Division in the case of Simba Telecom v. Karuhanga & Anor (2014) UGHC 98 which had occasion to consider an application to re-open the case for purpose of submitting fresh evidence. That court referred to an Australian case SMITH v. NEW SOUTH WALES [1992] HCA 36; (1992) 176 CLR 256 where it was held:

“If an application is made to reopen on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not recorded, ordinarily that will tell decisively against the application.But assuming that that hurdle is passed, different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one which reasons for the judgment have been delivered. In the latter situations the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to reopen should be exercised.”

41. The Ugandan Court in the case SIMBA TELECOM (supra) held thus:

“I agree with the holding in the case of Smith v. South Wales Bar Association (1992) 176 CLR 256, where it was held that the question of whether additional evidence should be taken at the trial is considered separately from the question of whether the case should be reopened. Consequently, even after the case has been reopened, the court retains its discretionary powers whether to admit any piece of evidence or not.”

42. The power to recall allow adduction of additional evidence and to recall a witness(es) is provided under Section 146 (4) of the Evidence Act and under Rule 29(1) of the Court of Appeal Rules. Section 146 (7) of the Evidence Act provides:

“(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further crossexamination and re-examination respectively.”

43. While Rule 29 (1) of this court’s rules provides as follows:

“29(1) On any appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the court shall have power –

(a)to re-appraise the evidence and to draw inferences of fact; and

(b)in its discretion, for sufficient reason, to take additional evidence or to direct that additional evidence be taken by the trial court or by a commissioner.”

44. This Court differently constituted had occasion to consider an application under Rule 29 (1) of this Court’s Rules. In Joginder Auto Service Ltd v. Mohammed Shaffique & another [2001] eKLR where the court held:

“But this Court and other courts in different common law jurisdictions have, over the years, enunciated principles to guide the courts in applications for leave to adduce additional evidence. There is for instance the case of Mzee Wanjie & 93 Others v. Saikwa & Others (1982-88) 1 KAR 462, which was applied in Edgar Ogechi & 12 Others v. University of Eastern Africa, Baraton (Civil Appeal (Application) 130 of 1997) (unreported). There is also the old case of Karmali Mohamed & Another v. Z.H. Lakhani & Company [1958] EA.567. In summary these and several other cases decide that the power of the court and more particularly this Court, to receive further evidence is discretionary…”

45. Most significantly and more recently, the Supreme Court laid down the governing principles on allowing additional evidence in appellate courts in Kenya in Petition 7 Of 2018 consolidated with Petition 9 Of 2018 between Hon. Mohamed Abdi Mahamud and Ahmed Abdullahi Mohamad & 3 others as follows:

“[79] Taking into account the practice of various jurisdictions outline d above, which are of persuasive value, the elaborate submissions by counsel, our own experience in electoral litigation disputes and the law, we conclude that we can, in exceptional circumstances and on a case by case basis, exercise our discretion and call for and allow additional evidence to be adduced before us. We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows:

(a) The additional evidence must be directly relevant to the matter before the court and be in the interest of justice;

(b) It must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;

© it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;

(c) Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;

€ the evidence must be credible in the sense that it is capable of belief;

(f) the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;

(g) whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;

(h) where the additional evidence discloses a strong prima facie case of willful deception of the Court;

(i) The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful.

(j) A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.

(k) The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.”

46. From the cited law and cases, it is clear that courts have power to allow adduction of additional evidence, even at the appeal stage. The Evidence Act stipulates that the court may in all cases permit recalling of witnesses. It is therefore not too late for the high court and courts of equal status to allow such an application, if in exercise of its discretion it is judicious to do so, even where the case has been concluded but before judgment.

SHAMI DESHPAL WADHWA(As Legal Representative of the Estate ofDESHPAL OMPRAKASH WADHWA v. HABIB ABU MOHAMED & 4 OTHERS_CIVIL APPEAL NO. 33 OF 2019, Consolidated with, CIVIL APPEAL NO. 148 OF 2019 (CORAM: S. Gatembu Kairu, A. Mbogholi Msagha & P. Nyamweya, JJ.A. DATED: 21st January 2022.)

28/12/2021

Don't rattle the Law.

28/12/2021

Odira Law