DIGITAL BROADCASTING SWITCHOVER: SOME REGULATORY ISSUES

Michael Murungi
November 2007
Nairobi

Poor children in Ouagadougou, the capital of Burkina Faso, are treated to free film showings during the Pan-African Festival of Cinema and Television. The event, known as FESPACO, was one of the most respected film festivals in sub-Saharan Africa. (Courtesy http://www.britannica.com/eb/art-76162).

At the stroke of midnight at the end of 17th June 2015, Kenya will cease all analogue broadcasts of radio and television signals and switch over to the transmission of digital-only signals. On that date, all analogue television sets for which the owners will not have installed a digital signal converter will go black.

Digital broadcasting has emerged as a globally accepted standard for next-generation mass media. It presents a method of relaying radio and television signals with various advantages from analogue broadcasting. It enables a more efficient use of bandwidth and the bundling of multiple channels in one frequency. Moreover, digitally broadcast images, video and audio have a higher quality than their analogue counterparts. The transition from digital to signal broadcasting is arguably the most significant technological cross-over for television and is only closely rivaled, if not slightly surpassed, by the invention of colour television.

In the Regional Radio Conference organized by the International Telecommunication Union (ITU) in Geneva in 2006, a digital broadcasting plan was established for Africa, Middle East, the republics comprising the former Soviet Union and Europe. Various countries committed themselves to a series of time-bound events culminating in a complete switch-over from analogue to digital broadcasting.

In Kenya, the Ministry of Information and Communications established a committee of experts and stakeholders in the broadcasting industry in March, 2007. The committee, known as the Taskforce on the Migration of Terrestrial Television from Analogue to Digital Broadcasting, was to study and make proposals on Kenya’s approach to and transition timeframe for analogue switch-off. It carried out the study and presented its report to the Ministry in July 2007.

This commentary looks at certain legal and policy issues surrounding the migration to digital broadcasting.

The Need for a clear policy and legal framework
An event having the magnitude of the anticipated national digital switchover can scarcely be accomplished without having an effect on the spectrum of legal relationships, rights and obligations existing in society. The digital switchover is essentially an enforced uptake of new technology upon society. Unlike black-and-white versus colour television, which remains a consumer choice dictated largely by market forces and varying individual conceptions of viewing pleasure, with digital broadcasting the consumer is somewhat compelled to upgrade broadcast receiving equipment at the risk of experiencing a complete denial of broadcasting service.

Therefore, the national digital switchover should be preceded by the articulation of comprehensive policy, legal and administrative interventions that will preserve the legal rights and relationships or at least anticipate possible conflicts and make provision for their resolution. Hopefully, the National ICT Policy and the report of the Ministerial Task Force are the foundational steps towards a more detailed policy statement. Whereas the ICT policy only gives a cursory treatment of the subject, the recommendations given by the Ministerial Task Force will need to acquire the form of express policy commitments.

Beyond the realm of policy, the national digital broadcasting switchover programme will need to anticipate and resolve the following questions:

(a) Will a denial of broadcasting service to digitally non-compliant households constitute a violation of the constitutional right to receive information and ideas? (Is there any such thing as the public’s right to receive information through television?)

The old debate over whether Kenya’s jurisprudence has embraced the right to receive information through mass media as a constitutional norm cannot be put down with the same certainty as, say, two decades ago. Whereas section 79 of the Constitution of Kenya guarantees that except with his or her own consent, no person shall be hindered in the enjoyment of the freedom to receive ideas and information, at least until the decision in Nation Media Group Ltd v Attorney General [2007] eKLR, the Courts had declined invitations to regard this section as creating a negative duty on the Government (or, conversely, at least a legitimate expectation from its citizens) to ensure the unhindered dissemination of information. The constitutional court considered section 79 as embodying a universally accepted principle that “freedom of expression is a basic element of the public order of democratic society and … it presupposes both the widest possible circulation of news, ideas and opinions and the widest possible access to information by society….”.

Even though it is not expressly stated in USA’s Constitution, the United States Supreme Court and commentators have generally regarded the right to receive information as a natural corollary to the first amendment right to free speech. More particularly, when deciding the case of Red Lion Broadcasting v F.C.C. (“Red Lion”) in 1969, the US Supreme Court somewhat recognized the right to receive information in a television context.

An Act passed by the US congress set February 18, 2009 as the hard deadline for the transition to digital broadcasting. However, the certainty of this deadline has been thrown into doubt by the consumers lobby which has raised a first amendment concern: that TV owners who rely exclusively on over-the-air or analogue broadcasting have a constitutional right to receive information which right would be curtailed if an enforced digital switchover would disadvantage those among them who may not afford digitally compliant equipment[1]. A survey conducted by the Consumers’ Union and the Consumer Federation of America found that 39% of USA households (about 42 Million households) continue to rely on analog broadcasting for at least some of their TV viewing. Accordingly, even though the federal government has set aside billions of welfare dollars to give needy consumers a 40-dollar coupon as a subsidy for a digital-analog converter box, the entire coupon programme fund would only be sufficient for less than a half of these low-income households.

The right to receive information in Kenya has not acquired the judicial interpretation of the kind given by the US Supreme Court. However, it would not strain the meaning of section 79 of the Constitution of Kenya for a Kenyan court considering the implications of the digital broadcasting transition to construe it with the same breadth.

There are two ways in which the Government’s approach to digital broadcasting might appease the citizen and ultimately the constitutional court. First, it will attempt to win over the public, especially low income households, through education and information on the suitability of embracing the digital transition. Secondly, the Government might consider subsidizing or providing incentives for the acquisition of digitally compliant equipment – much akin to the coupon system in the USA. As a way of enabling consumers to handle the transition, this would be more preferable to imposing market level regulatory controls in consumer electronics. Already, these two measures have been included in the principle recommendations of the Ministerial Task Force.

(b) Does the existing legal regime provide an appropriate structure for the digital broadcasting switchover? (Is the law digitally compliant?)

Presently, the core pieces of legislation for the broadcasting industry include the Kenya Communications Act of 1998 and the rules made under it, the Kenya Broadcasting Corporation Act and the recently passed Media Act, 2007. Some of the recommendations of the Ministerial Task Force presuppose the existence of an appropriate legal framework governing certain important aspects of the transition to digital broadcasting. Perhaps in making the recommendations, the Task Force was optimistic about the prospects of the Kenya Communications (Amendment) Bill, 2007 (which has since been either withdrawn from the National Assembly or lapsed when the House was dissolved). Ultimately, the existing laws do not provide a secure legal basis for the transition to digital broadcasting. In the first instance, the law will need to expressly designate the Communications Commission of Kenya (CCK) as the regulator for the broadcasting industry. Though by a convention prevailing in the industry CCK has assumed certain regulatory and administrative functions over broadcasting, its regulatory ambit is limited by the Kenya Communications Act of 1998 to telecommunication, radio-communication and postal services. Secondly, the need to establish a legal framework for the issuing of licences to digital signal distributors and finally, the rationalization of the status and role of the Kenya Broadcasting Corporation in the industry particularly in designating it as the public broadcaster.

(c) How will the transition to digital broadcasting impact the universal service obligation?

In the context of broadcasting, universal services refers to the ability of all people to have equal opportunity and access to essential broadcasting services. The present-day model of a broadcasting industry is an oligopoly characterized by competing private broadcasters while a national broadcaster saddled with the universal service obligation serves a countrywide audience with terrestrial free-to-air broadcasts. With digital broadcasting and owing to the technological merger of television, the computer and the telephone, new business models will emerge in the broadcasting and telecommunication markets. This merger of technology and the provision of electronic data services through different infrastructure might alienate a cross-section of the population which might be socially or economically disadvantaged. As R. Tadayoni and Thomas Kristensen[2] pose: Will market forces and the evolution of technology ensure sufficient service to all or will it be necessary to make regulatory interventions in order to guarantee that some geographical areas or some groups of users are not cast away from the information society?

The foregoing concerns are not the bitter pill of new technology that a society must needs take at a certain time in its development. Rather, once resolved, they will be the relish with which the consumer will find the transition to digital broadcasting more appetizing.

* The writer is a legal expert on ICT (michaelmurungi@gmail.com).

[1] See generally, Eugen Ho’s “The Constitutional Right to Watch Television:: Analyzing the Digital Switchover in the Context of the 3rd Amendment” 56, AM. U.L. Rev 2007
[2] “Universal Access in Broadcasting: Solving the Information Problems of the Digital Age” Available at http://isoc.org/inet99/proceedings/3d/3d_1.htm, accessed November 20, 2007.

CONVICTED CHILD MOLESTER FREED IN DEFENCE OF HIS CONSTITUTIONAL RIGHTS

By Michael Murungi

October 2007

(This article was published in the Daily Nation newspaper issue of October 15, 2007 page 14 col. 1)

Ronald Manyonge Chepkui v Republic [2007] eKLR
High Court at Kitale
Justice F.A. Ochieng
November 11, 2007

Kenya’s criminal justice system is on the threshold of a legal debate on a question that has troubled the minds of judges and legal scholars in many parts of the world: should an accused person whose constitutional rights have been violated by an unjustifiably long period of pre-trial confinement be released even in the face of overwhelming evidence of his guilt?

Last week, the High Court, considering itself bound by a previous decision of the Court of Appeal, released a convicted child molester after it found that his constitutional rights had been violated by a delay of at least 48 hours in bringing him to court.

Under section 72 of the Constitution of Kenya, where a person is arrested upon reasonable suspicion of his having committed a criminal offence, then, if he is not released, he is required to be brought before a court as soon as is reasonably practicable. Where the person is not brought before a court within twenty- four hours of his arrest, or within fourteen days of his arrest where the arrest relates to an offence punishable by death, the burden of proving that he was brought to court as soon as was reasonably practicable rests upon the prosecution.

On April 27, 2007, the Court of Appeal had given its decision in the case of Gerald Macharia Githuku v Republic [2007] eKLR. The decision stood out as a remarkably bold defence of due process, the rule of law and the constitutional right of an arrested person. Its point of departure from previous jurisprudence on the subject was the subordination of the proven guilt of a violent robber to the constitutionality of his treatment by law enforcement authorities immediately after his arrest. Gerald had been arrested upon his suspicion for the offence of robbery with violence, for which the only punishment prescribed by law is the death penalty. He was held in custody for 17 days before his first arraignment in court. This was three days beyond the normal period prescribed by the Constitution. However, the issue of Gerald’s prolonged incarceration had not been substantially dealt with either before the Nairobi Chief Magistrate’s Court which had convicted and sentenced him to death nor before the High Court which had dismissed his first appeal.

In their judgment on Gerald’s second appeal, Court of Appeal Judges E.O. O’Kubasu, J.W. Onyango Otieno and W.S. Deverell spoke with unanimity in their defence of constitutional rights. They observed that even though the delay of three days in bringing Gerald to court did not cause him any substantial prejudice and although the evidence showed that he was guilty as charged, nevertheless the failure by the prosecution to abide by the requirements of the Constitution could not be disregarded. The prosecution, the Judges found, had failed to satisfy the Court that Gerald had been brought before the court as soon as was reasonably practicable.

Being mindful of the fact that Gerald had been in custody for over 12 years since his arrest and that the two persons with whom he had been charged had died in custody, the Court of Appeal set aside his conviction and sentence and released him.

This month, Justice F.A. Ochieng, the resident High Court Judge in Kitale, was faced with a similar legal question in the case of Ronald Manyonge Chepkui v Republic. On 13th September 2006, W.A. Juma, the Senior Principal Magistrate at Kitale, had convicted Ronald for the offence of indecent assault on a female (contrary to section 145(1) of the Penal Code) and sentenced him to imprisonment for 10 years. The victim of the offence was a young girl aged six years.

Ronald filed an appeal against the magistrate’s judgment in the High Court in which he raised several grounds of appeal. Among these grounds was the argument that because he had not been brought to court within 48 hours after his arrest, his constitutional rights had been violated. Even though there was some discrepancy in the evidence regarding the actual date of his arrest, it was clear that Ronald had been held in custody for at least four days before his first arraignment in court. This led Justice Ochieng to observe that the prosecution had violated his rights as enshrined in section 72(3) of the Constitution.

The Judge then considered the decision of the Court of Appeal in Gerald’s case. He recalled that the Court had taken into account the fact that Gerald had been in custody for a long period and that his co-accused had died in custody. In his opinion, therefore, the Court of Appeal did not lay down a strict rule that accused persons or appellants are to be released once it has been established that they had not been arraigned in court within the time prescribed by section 72(3) of the Constitution. Rather, the position in law appeared to be that an apparent violation of a constitutional right which is not explained by the prosecution will normally result in an acquittal irrespective of the nature and strength of the evidence which may be adduced in support of the charge. Ideally then, in every case where there is a failure to strictly comply with section 72(3), the prosecution should be obliged to offer an explanation to the court for the delay in bringing the accused person to court even if he has not raised the issue himself.

However, the proposition that an acquittal should necessarily follow where the prosecution fails to discharge its duty of establishing that the accused person had been brought to court within a reasonable time was too troubling for the Judge to contemplate. “I shudder to think of the possible ramifications” he remarked, “and venture to suggest that persons whose constitutional rights had been violated in [this manner] should, if found guilty, serve the sentences…..However, the person should have the opportunity, if he wished, to seek appropriate relief against those that had violated his constitutional rights”.

Justice Ochieng had found no merit in all the other grounds argued by Ronald in support of his appeal. As far as the evidence stood, therefore, there was nothing in the appeal upon which the High Court could reverse the finding by the trial court that he had committed the offence of defilement. The Judge nevertheless recalled that as a Judge of the High Court, he was bound by the decision of the Court of Appeal in the Gerald Case. Accordingly, he noted that notwithstanding the evidence against Ronald, he was obliged to quash the decision of the trial court on the basis of the violation of Ronald’s fundamental rights. He therefore allowed the appeal and ordered that Ronald should be set free.

EMPLOYEE SAFETY: EMPLOYER WINS APPEAL AGAINST FACTORY WORKER

By Michael Murungi
October 2007

(This article was published in the Daily Nation newspaper on 8th October, 2007 pages 14-15)

Eveready Batteries (K) Ltd v Simon Kinyua [2007] eKLR (www.kenyalaw.org)
Court of Appeal at Nakuru
September 27, 2007

A former employee of renowned batteries manufacturer, Eveready Batteries (K.) Ltd, has lost a case in which he had been awarded over Kshs. 4 Million as damages for loss of earnings and cost of future medical expenses for injuries suffered in the course of duty. On 27th September 2007, the Court of Appeal found that Simon Kinyua had failed to prove his case against Eveready to the standard of proof required by law and that the High Court had erred in finding in his favour.

Simon had filed a claim in the High Court in 2004 alleging that Eveready had breached its statutory duty as an employer to provide a safe working environment. Under section 51 of the Factories Act (Chapter 514 of the Laws of Kenya), the person in charge of any factory in which dust, fumes or other impurities are given off is required to take “practicable measures…to protect the persons employed against inhalation of the….impurity and to prevent its accumulating in any workroom and where practicable, to provide and maintain exhaust appliances”. The Act further provides in section 53 that where any factory workers are employed in any process involving exposure to wet or to any injurious or offensive substance, suitable protective clothing and appliances such as gloves, footwear, goggles and head coverings shall be provided and maintained for the use of such workers.

According to the evidence which Simon presented to the High Court, he had worked at Eveready’s factory as a machine operator between 1st September 1989 and 4th February 2002. As a part of his duties, he was required to clean a paper liner machine, a cell tapping machine and a cell assembly machine using compressed air and kerosene. He would also sweep the room in which the paper liner machine was installed. He told the court that in the performance of these duties, Eveready had neglected its statutory duty to provide a safe working environment so that his health had declined due to the inhalation of harmful concentrations of depolarizing chemicals, fumes and dust.

He stated that he had been in and out of hospital since 1995 due to a number of medical conditions characterized as chest pains, upper respiratory sensitivity, coughing and difficulty in breathing, pulmonary emphysema, irritation of the bronchial tubes, loss of sight and pain in the left year. Ultimately, he was retired on medical grounds in 2002 at the age of 39 years.

Eveready filed a defence denying Simon’s claim and the suit went to a full hearing. In addition to his own testimony, Simon called three medical doctors as witnesses and an Occupational Health and Safety Officer from the Ministry of Labour. For its part, Eveready called six witnesses: two of its employees, a medical doctor, an employee of a company which had supplied it with safety equipment, a community nurse and a Consultant Industrial Hygienist. The substance of Eveready’s case was that it had provided safety training and a system of work that was not only safe for all its employees but also above the safety standards prescribed by the government.

After considering the evidence and the legal test to be applied in assessing the liability of an employer for breach of statutory duty, Lady Justice J. Lesiit found that Simon’s medical condition was due to his exposure to fumes and dust at his place of work and further, that Eveready had not taken practicable measures to protect him against the inhalation of those substances. Inevitably, therefore, Eveready was found liable to Simon in the sum of Kshs. 4,327,872.

Eveready filed an appeal against the decision in the Court of Appeal through its advocate, Mr. Musangi. Simon engaged two advocates to counter the appeal, Mr. Mindo and Mr. Ndolo. After the advocates had made their submissions, Appellate Judges Tunoi, O’Kubasu and Githinji retired to reflect on their decision, which, as they would later observe, they did with very careful consideration.

First, they noted that the issue of the liability of Eveready was most crucial and because Simon was the claimant, it was his duty to prove that Eveready had been negligent and breached its statutory duty. The Judges noted that indeed, practicable measures to protect employees against harmful inhalations included not only the provision of masks but also inducing the employees to wear them. They then subjected the evidence which had been given in the High Court to a fresh and exhaustive evaluation: There was evidence to show that Eveready had trained its employees on safety measures. Indeed, Simon himself had admitted that he had been supplied with masks, save that he did not consider them to be adequate or effective. On this point, the Court of Appeal found that the finding by the High Court that the masks were not readily available was not supported by the evidence.

On its own assessment of the rest of the evidence, the Court was satisfied that Simon, as well as other employees of Eveready, had been provided with the necessary masks and that Eveready had taken the necessary measures to ensure a safe and healthy environment in its factory. The Court therefore disagreed with the finding of the High Court that Eveready had breached any of its duties under the Factories Act. Simon had failed to prove his case on the balance of probability.

The judgment of the High Court and all the orders issued by it were set aside and Eveready was awarded the costs of the litigation both in the Court of Appeal and in the High Court.

MOB LYNCHING ATTACKER JAILED FOR 10 YEARS

Reported by Michael Murungi
September, 2007

(This article was published in the Daily Nation newspaper on 24th Sept. 2007 pg. 14 column 1)

When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of the persons is deemed to have committed the offence.

David Ciayu Njogu v Republic [2007] eKLR (www.kenyalaw.org)
Court of Appeal at Nairobi ( Appeal Judges S.E.O. Bosire, J.W. Onyango-Otieno & W.S. Deverell)
July 27, 2007

“Mob justice”, a term used to refer to a form of mob violence, usually in the form of an execution through free-for-all public beating conceived of by its perpetrators as extrajudicial punishment for an offence – can have tragic consequences not only for the victim but also for the perpetrators. David Ciayu Njogu was part of a mob that had fatally assaulted Joseph Kiama early in August, 2000 upon his suspicion of having been involved in a burglary. What David did not foresee was that three years later, he would be facing a sentence of death for his actions.

On 1st August 2000 at 4.30a.m, John Mwangi had left his house in Maringo Estate, Nairobi, to draw water from a nearby water point. While he was away, thieves had entered his house and made away with several items, among them a television set and a radio. As he approached his house on his way back, John shouted for help when he saw someone coming out of the house carrying his television set. He did not immediately identify the person but several people answered his alarm and engaged the suspect in a pursuit. The suspect wisely jettisoned the television set and just barely managed to put himself within visible distance of his pursuers. He ran into the house of one Samuel Wanjohi. Samuel’s wife had left the house open when she had also gone to draw water.

Though the pursuers surrounded the house, the suspect evaded capture by making an opening in the roof through which he climbed out of the house and escaped. After the crowd realized that he had escaped, some people said that they had recognized the suspect as Joseph Kiama and immediately, the pursuit took the direction of Joseph’s house. At the time that it arrived at Joseph’s residence, the mob had grown into over fifty people, some of whom were armed. Joseph was taken out of his residence and subjected to a serious beating in which he suffered serious bodily injuries, including a fracture of the right leg. Though he was later rushed to Kenyatta National Hospital and admitted for treatment, he died two days later.

Dr. Kirasi Olumbe, the Government Pathologist, performed a post-mortem examination of Joseph’s the body. It had a laceration on the forehead which had been sutured and there was an accumulation of blood underneath the scalp. There was also a bruise on the left forearm and a simple fracture of the left leg. Dr. Olumbe formed the opinion that Joseph had died as a result of a head injury caused by a blunt object.

In due course, police investigations led to the arrest of David who was arraigned before the High Court on a charge of murder under sections 203 and 204 of the Penal Code. Witnesses testified that they had seen him armed among the mob that had violently assaulted Joseph with either a metal bar or club.

In his defence, David testified on oath and called one witness. Generally, his evidence was that though he had responded to the alarm raised by his neighbour along with other residents of Maringo Estate, he had not participated in the beating of Joseph.

At the conclusion of the trial, Justice R.M. Mutitu noted that because there was no evidence to show that Joseph had stolen from David, and given that David had ignored the pleas of several people to stop the assault on Joseph, it could not be said that David had been provoked to commit the beating. For this reason, the Judge was unable to agree with the opinion of one of the assessors that the charge should be reduced to manslaughter. David was therefore convicted of murder and sentenced to death.

David was aggrieved by the decision of the High Court and he filed an appeal against it in the Court of Appeal. The appeal was heard by Appeal Judges S.E.O. Bosire, J.W. Onyango-Otieno and W.S. Deverell. David’s main ground of appeal, which was argued by his advocate, Mr. Njanja, was that he had not been properly identified as being part of the mob that had assaulted Joseph. The Republic, through Kaigai, State Counsel, opposed the appeal and argued David had been properly identified and that the doctrine of common intention applied to the case.

In its judgment, the Court of Appeal recalled the articulate wording of section 21 of the Penal Code: When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

After analyzing the evidence relied on by the High Court, the Court of Appeal found that indeed, David had been properly identified as one of the people who had assaulted Joseph and he had also been mentioned by Joseph before he died. However, the Court found that the beating of Joseph was a spontaneous act and there was no evidence that the people involved had met and agreed to attack him. In those circumstances, it could not be said that the killing had been done with malice aforethought, which is an essential ingredient in proving the offence of murder. The Court instead convicted David of the lesser offence of manslaughter contrary to section 203 as read with section 205 of the Penal Code.

The Judges of Appeal then considered the sentence that would be appropriate in the circumstances of the case. They took into account the fact that David had been in custody since August 2000, a period of nearly seven years and that as far as the record of the High Court showed, this was his first offence. On the other hand, Joseph, the victim of the offence, had lost his life and left behind a wife and children. The notorious practice of mob justice had to be discouraged. David was sentenced to serve imprisonment for 10 years computed from the date when he was convicted by the High Court.

ADVERSE POSSESSION: LAND SELLERS BEWARE

By Michael Murungi

(This article was published in the Daily Nation newspaper on 17th Sept. 07, pg 14 column 2)

Situma v Cherongo
Court of Appeal at Nairobi
PK Tunoi, EM Githinji & J.W. Onyango-Otieno JJ A

July 31, 2007

The Court of Appeal has reiterated that where a purchaser of agricultural land is permitted to be in possession of the land by the seller pending the completion of the sale and the transaction thereafter becomes void because the parties fail to obtain the consent of the Land Control Board, such permission is terminated by the operation of law and the continued possession, if it is not illegal, becomes adverse from the time the transaction becomes void.

In law, adverse possession is the occupation of the land of another person against his wish and in opposition to his title. Where such possession continues without the interruption of an eviction for a period of over 12 years, then the squatter becomes legally entitled to the land by the operation of the doctrine of adverse possession.

Dismas Situma entered into an agreement for the purchase of 19 acres a piece of land in Bungoma from Nicholas Cherongo in 1972. Cherongo had previously given possession of the land to Situma who had settled on the land with his family. Unfortunately, Situma passed away in May 1979. He was survived by his family, which included Joseph Mutafari, his eldest son.

In 1988, Mutafari filed proceedings in the High Court seeking to be registered as the absolute owner of the land which he claimed to have become entitled to by virtue of being in adverse possession of it for a period of over 12 years. In his affidavit, he swore that he was the son and administrator of the estate his father and that after his father had paid the full purchase price for the land, Nicholas had refused to sign the transfer documents and Mutafari, along with the rest of his father’s family, had resided on the land peacefully for a period of 17 years.

The dispute was finally determined when the Court of Appeal comprised of Appellate Judges P.K. Tunoi, E.M. Githinji and J.W. Onyango Otieno delivered their unanimous opinion from an appeal against a previous decision of the High Court on 31st July, 2007. The Court of Appeal stated that where a squatter or the prospective purchaser of the land is in factual adverse possession, such possession will not be terminated merely because the true owner sends a letter requiring him to vacate the premises. The clock of 12 years will continue to tick in favour of the squatter unless and until he vacates or is evicted from the land or he otherwise acknowledges the true owner’s title.

The Court found that Situma, Mutafari’s father, had been in adverse possession of the land when the sale agreement became void i.e. upon the expiry of the time within which the parties were required by law to obtain the consent of the land control board to the transaction. This was about 12th June, 1971 to 31st May, 1979 when he died, a period totaling to 8 years. That period was however, less than the statutory minimum period of 12 years required to establish a claim by adverse possession. It then followed that Situma had not acquired the land by adverse possession by the time of his death and his estate, which was represented by his son Mutafari, was not entitled to the land either. The appeal was therefore dismissed.

MURDER TRIALS: ASSESSORS FROM THE ACCUSED’S COMMUNITY

By Michael Murungi

(This article was published in the Daily Nation newspaper on 17th Sept. 2007, pg 14 column 1)

Said Kupata Mwakombe v Republic [2007] eKLR
Court of Appeal at Mombasa (Appeal Judges Omolo, Githinji & Deverell)
July 20, 2007

In murder trials in Kenya, assessors, who are more like the members of a jury in certain criminal trials in the USA, are of special value in determining what action amounts to the defence of 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 therefore to the truth of what the witnesses said. The Court of Appeal made these observations in a case in which Said Mwakombe was charged with the murder of his wife, Mapenzi Muoka.

Mwakombe hailed from the Giriama community of Malindi District in Coast Province, a community which has stuck to its customs and traditions. From the evidence adduced before the High Court, his wife had returned to her father’s home after a domestic disagreement. Two days later, Mwakombe had gone to the home apparently to seek a reconciliation but he had stabbed her to death ostensibly in a fit of fury when she declined to return to their matrimonial home. In his evidence, Mwakombe had recounted the frustrations he had encountered in his attempts to solve his marital problems and raised the defences of intoxication or drunkenness and self defence.

The trial was conducted with the aid of assessors who hailed from Nyanza province, two of whom were recorded as having formed the opinion that Mwakombe had committed the offence of murder. There was no record of what had become of the third assessor. Ultimately, the High Court had rejected Mwakombe’s defence, convicted him and sentenced him to death.

In its decision on Mwakombe’s appeal delivered on July 20, 2007, the Court of Appeal felt that it was only an assessor from Mwakombe’s community who could know the temperament of the community and who could assist the trial court to know whether the frustrations that Mwakombe had encountered in his efforts to secure his wife’s return to their matrimonial home were in the circumstances of this case such as to deprive him of the power of self-control and to induce him to stab her.

The Court of Appeal further noted that under section 269 of the Criminal Procedure Code, it is the magistrate holding a subordinate court of First Class “having jurisdiction in the province or district in which sessions are to be held” who summons persons to be selected as assessors by the presiding Judge. It is implicit from that provision, the Court observed, that the three assessors to be selected for a particular trial should come from the same district or province as the accused persons, making judicial notice of the fact that in Kenya a district is occupied predominately by one distinct community.

The Court of Appeal also found the trial had not been effectively conducted with the aid of assessors as there was no record of the reasons for their opinions and they had not specifically dealt with the defence of intoxication raised by Mwakombe. Moreover, there was no record of what had become of the third assessor. Ultimately, the Court observed that it remained uncertain what the outcome would have been if the trial had been conducted with assessors from Mwakombe’s community, and Mwakombe was entitled to the benefit of that uncertainty. Therefore, his appeal was allowed and his conviction for murder was reduced to a conviction for manslaughter for which he was sentenced to imprisonment for 20 years.

KENYA CONSIDERS FREEDOM OF INFORMATION LAW

KENYA CONSIDERS FREEDOM OF INFORMATION LAW
By Michael Murungi
September 2007

Kenya’s National Assembly is considering a Bill which proposes to create a citizen’s right to public information and to foster the proactive provision of information by public bodies. The Freedom of Information Bill, 2007, sponsored by Prof. Anyang’ Nyong’o, the Member of Parliament for Kisumu Rural, also proposes to impose obligations on private bodies to release information to a citizen where the information is necessary for the enforcement of any right.

Information, particularly information held by public bodies, is a key economic resource and the raw material for the transition from a commodity-based economy to a knowledge-based economy. Moreover, the free flow of information is key to democratic governance: it empowers citizens and enables them to participate in public affairs and it is an important tool for cultivating transparency and accountability in public bodies. These principles were captured in the Freedom of Information Policy which preceded the preparation of the Bill.

If the material provisions of the Bill survive parliamentary debate and are passed into law, it will be the first time in the history of the Kenyan legal system that a legally enforceable right to public information and a corresponding obligation by a public or private body to release information to a citizen will have been expressly provided in a statute.

CURRENT LEGISLATION ON PUBLIC INFORMATION
Presently, the regime of law governing the collection, storage and disclosure of public information is to be found in a host of statutes:

(a) The Disposal of Records Act of 1962;
(b) The Public Archives and Documentation Service Act of 1966;
(c) The Official Secrets Act of 1968;
(d) The Statistics Act of 2006; and
(e) Several other statutes establishing public offices having the express or ancillary duty to collect certain kinds of public information eg The Age of Majority Act; Births and Deaths Registration Act; Registered Land Act; Companies Act, etc.

The Disposal of Records Act
This Act makes provision for the disposal of public records in the custody of the High Court and the Registrar-General. In respect of the High Court, the Chief Justice may, subject to consultations with the Chief Archivist and in accordance with the Public Archives Act, make rules for the destruction of the records of the High Court or the subordinate courts which he considers to be of no further use or worthy of being permanently preserved. The Chief Justice is given the same powers with regard to the records in the custody of the Registrar-General.

However, the Act does not authorize the destruction of any document which is required to be preserved by any law.

The Chief Justice has made subsidiary legislation, the Records Disposal (Court Rules), governing the destruction of court records.

The Public Archives and Documentation Service Act
This Act creates the Kenya National Archives and Documentation Service (KNADS) and makes provisions for the preservation and public archives and public records. The Government Printer and all heads of government ministries, agencies and departments are obliged to furnish the Director of KNADS with two copies of any published or generally circulated document or report produced by their offices.

However, the Act does not expressly recognize any right of the citizen to access a public archive. It merely provides that public archives that have been in existence for not less than 30 years “may” be disclosed to the public though the Director is given the power to refuse the disclosure of such records. Moreover, public archives which have been existence for a shorter period may only be disclosed with the authority of the Director.

The Official Secrets Act
Since the enactment of the first edition in 1911, fewer laws have endured as much negative review and public scorn in Kenya as the Official Secrets Act. But much of the criticism may have been misplaced as it was inspired not so much by an understanding of the Act but by the interpretation of the actions of deceitful civil servants who may have wrongfully invoked it to conceal information which was otherwise not exempted from public disclosure. The purpose of the Act has remained noble: the preservation of state secrets and state security. All the Act does is to protect certain security installations from trespass; to restrict the improper use of the uniforms of the disciplined forces and the identity tools of government authorities and to allow government wire-taps on communication systems in certain circumstances.

Perhaps the only legitimate criticism that may be leveled against the Official Secrets Act is that it restricted access to public information long before an express right of access to public information was created. Nevertheless, the Freedom of Information Bill proposes to repeal this Act.

The Statistics Act, 2006
This Act establishes the Kenya National Bureau of Statistics for the collection, compilation, analysis, publication and dissemination of statistical information and the co-ordination of the National Statistical System.

THE FREEDOM OF INFORMATION BILL
The Freedom of Information Bill appears to have been drafted with the benefit of a comparative study of similar laws in well established democracies, including the USA, the UK, Australia, New Zealand, Ireland, Netherlands, France and Canada.

Citizen’s Right of Access to Public Information
In section 25 of the Bill, it is proposed to enact that every citizen has a legally enforceable right to obtain access to information held by or under the control of a public authority. Further, the citizen has the same right with respect to information held by or under the control of a private body where that information is necessary for the enforcement or protection of any right.

That right is not to be affected by the reasons that the citizen gives for seeking the information or the belief of the public authority as to what that reason might be.

Establishment of the Kenya Freedom of Information Commission
Section 5 of the Bill proposes to establish a corporate body to be known as the Kenya Freedom of Information Commission with the following functions:
(a) to investigate the violation of the Act either on its own motion or upon the complaint of an individual;
(b) to inspect public authorities with a view to evaluating the collection, processing and dissemination of information to the public;
(c) to inform and educate the public as to their rights under the Act;
(d) to recommend to all public authorities effective measures to promote access to information;
(e) to act as the chief agent of the Government in ensuring that all public authorities comply with its obligations under international treaties and conventions on access to information;
(f) to approve information dissemination procedures by all public authorities;
(f) to perform such other functions as the Commission may consider necessary for the promotion of access to information.

Proactive Disclosure of Information by Public Authorities
Section 27 proposes to create an obligation on public authorities to publish, not later than one year after the commencement of the Freedom of Information Act,:
(a) the particulars of the organization, its functions and duties;
(b) the powers and duties of its officers and employees;
(c) the procedure followed in the decision making process including channels of supervision and accountability;
(d) the norms set by it for the discharge of its functions;
(e) any guidance used by the authority in relation to its dealings with the public or with corporate bodies, including the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; and
(f) a guide sufficient to enable any person wishing to apply for information
under the Act to identify the classes, subject and location of information held by it;

Information exempt from disclosure
Information may be withheld by a public authority where the public authority is satisfied that the disclosure of the information is reasonably likely to:

(a) cause serious prejudice to the national security of Kenya;
(b) impede the due process of law or to endanger the safety or life of any person or the safety of a rare or endangered species;
(c) involve the unwarranted invasion of the privacy of an individual other than the applicant or the person on whose behalf an application has with proper authority been made;
(d) cause serious prejudice to the legitimate commercial or financial interests of that authority or third party from whom information was obtained;
(e) cause serious prejudice to the ability of the Government to manage the economy of Kenya;
(f) significantly undermine a public authority’s ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration; or

Providing access to information
Upon the making of a request for information by a member of the public, the public servant who receives the request shall make a decision on the application as soon as possible and in any case, not later than 15 working days from the time of receiving it. However, information relating to life or liberty is to be furnished within 48 hours. The Commissioner of Information may nevertheless grant an extension of up to 15 working days where the information sought is unusually complex or voluminous. No fee is to be charged in relation to the submission of a request and only a reasonable fee may be charged for supplying the information. However, this costs is not to exceed the cost of making copies of and supplying the information.

A request for information may be granted in full or in part or it may be declined. Where the request is declined or only partially allowed, the public body incurs an obligation to give reasons to the person requesting.

Review and dispute-resolution mechanisms
Where a request for information has not been granted to the satisfaction of the person requesting or any affected third party may make file an appeal or a review of the decision. A citizen may file a complaint with the Kenya Freedom of Information Commission which is to be give quasi-judicial powers with respect to the hearing and determination of complaints; it may summon persons, take evidence and issue remedies including ordering the release of withheld information and the payment of compensation.

A person dissatisfied with an order of the Commission is to be given the right of appealing to the High Court.

CONCLUSION
A freedom of information law is long overdue in Kenya. Even though the country has missed out on many of the democratic gains that could have been realized by an early enactment of this law, the Bill is nevertheless a welcome development. Other African countries are in various stages of enacting similar laws, including Nigeria, Lesotho and Ghana. Uganda’s law came into force in 2006. In a number of countries, such as South Africa, Macedonia and Latvia, there are express constitutional provisions guaranteeing the citizen’s right to access public information but in a number of countries, the right is only vaguely expressed in the constitution.
See (http://en.wikipedia.org/wiki/Freedom_of_information_legislation) .

If the Bill is passed, Kenya will join an expanding family of nations in which that right is expressly protected by a statutory enactment.

*The author is a communications legal expert.

HISTORIC COURT PETITION CHALLENGES THE TRIAL OF JESUS

By Michael Murungi
Assistant Editor, Kenya Law Reports.

Friends of Jesus v Tiberius, Emperor of Rome; Pontius Pilate; et al
Republic of Kenya Constitutional Petition No. 965 of 2007

August 2007

A society of Christians has filed an unprecedented case in Kenya seeking a constitutional interpretation of the trial, sentencing and punishment or death of Jesus Christ. On 29th August, 2007, the Friends of Jesus, acting through Mr. Dola Indidis, a Christian, a lawyer and also the spokesman for the Kenyan Judiciary, filed a petition in the Constitutional Court in Nairobi against the States of Italy and Israel and a host of characters featured in biblical accounts of the events leading to Jesus’ crucifixion i.e. the Emperor of Rome at the time, Tiberius; the Governor of Judea, Pontius Pilate; the Jewish Chief Priest; Jewish Elders; Jewish Teachers of the Law and King Herod. The Kenya Civil Liberties Union has joined the proceedings as amicus curiae (friend of the court).

The Petitioners are challenging the mode of questioning, trial, sentencing and punishment of Jesus and are asking the court for a declaration that the proceedings before the Roman Courts in 42BC- 37AD were a nullity in law because “they did not conform to the rule at the material time”.

In a sworn affidavit, Mr. Indidis describes his fellowship of the Friends of Jesus as having bestowed upon itself “the sole responsibility and duty of preserving and protecting the image, authority, teachings and dignity” of Jesus Christ “according to the teachings of the New Testament”. The petition states that the purpose of the proceedings is to obtain a resolution of pertinent issue for Christendom and Jews: addressing the wrongs that were meted against Jesus particularly the legitimacy of the law under which he was tried and punished and the manner in which that law was applied.

The states of Italy and Israel have been named in the suit because, as the Petition states, upon the attainment of independence, the states incorporated the antecedent laws of the Roman Empire and the laws in force at the time of the crucifixion.

AWARDING DAMAGES FOR LOSS OF FUTURE EARNINGS

(This article was published in the Daily Nation (http://www.nationmedia.com/dailynation/nmgcontententry.asp?category_id=39&newsid=105740 ) on Sept. 3, 2007 at pg. 14 column 1)

Mumias Sugar Company Ltd v Francis Wanalo [2007] eKLR (www.kenyalaw.org)
Court of Appeal at Nairobi (S.E.O. Bosire, E.O. O’Kubasu & E.M. Githinji JJ A)
July 31, 2007

Reported by Michael Murungi, Asst. Editor, Kenya Law Reports

The Court of Appeal has stated that an award of damages for loss of earning capacity can be made when the claimant is employed to compensate him for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market. The award can also be made at the time of the trial and even when he is not so employed to compensate him for the risk that he will not get employment or suitable employment in future.

Francis Wanalo had been engaged on a four–year apprenticeship for general fitting and mechanical engineering in a factory owned by the Mumias Sugar Company at a monthly pay of Kshs. 8,300. In July 1998, he was injured when a fellow employee prematurely operated a crane from which Francis was disembarking causing the crane to push him against a beam. Francis, who was aged 26 years at the time, sustained a traumatic amputation of the small finger of the right hand, crush injury to the fourth finger of the right hand and soft tissue contusion with bruises on the right thigh.
In his suit against the Mumias Sugar Company, Francis stated that the accident was caused by the negligent operation of the crane by the company’s servant and prayed for damages. The company merely denied negligence in its defence and put forward two alternative defences – contributory negligence and volenti fit non injuria. The High Court found the company wholly liable for negligence and awarded Francis Shs.200,000/= as general damages for pain, suffering and loss of amenities, Shs.1,500/= as special damages and Shs.2,016,000/= for loss of earning capacity. In computing the latter award, the Court applied a multiplicand of Shs.7,000/= per month and a multiplier of 24.
Mumias Sugar Company filed an appeal against the decision. It argued that the High Court had erred in awarding damages under two separate heads, one ostensibly for pain and suffering and loss of amenities; and the other for loss of earning capacity and that the award of damages for loss of earning capacity was excessive.
In a unanimous opinion, a three-judge bench of the Court of Appeal came to the conclusion that based on the evidence, the High Court had reached the correct decision on the question of liability. The Court of Appeal then went on to make the following observation regarding the award of damages.

There is a difference between an award of damages for loss of earnings and an award for loss of future earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages. In an appropriate case, a court can give an award for loss of future earnings and for loss of earning capacity to the same plaintiff so long as the overlap of the two awards of damages is avoided.

Further, loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, Court has to apply the correct principles and take the relevant factors into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.

The appeal was allowed and Francis’ award of damages for loss of future earning capacity was reduced to Kshs. 500,000.


Universities Established:
Legal Notices No. 159-164 of 2007
President Mwai Kibaki has by Orders published in Legal Notices established the following universities:
Kenya Polytechnic University College as a constituent college of the University of Nairobi and successor to the Kenya Polytechnic.
Mombasa Polytechnic University College as a constituent college of Jomo Kenyatta University and successor to the Mombasa Polytechnic.
Chuka University College, as a constituent college of Egerton University. The University College shall be a successor to the Eastern Campus College of Egerton University.
Kimathi University College of Technology as a constituent college of Jomo Kenyatta University of Agriculture and Technology. The University College shall be a successor to the Kimathi Institute of Technogy.
Kisii University College as a constituent college of Egerton University as a successor to the Kisii Campus of the University.
Pwani University Colleage, as a constituent college of Kenyatta University. It will be a successor to the Kilifi Agriculture Training Institute.

PROBATION AND AFTERCARE TASK FORCE APPOINTED
Gazette Notice No. 8238 of 2007
The Vice-President and Minister for Home Affairs, Hon. Moody Awori, has appointed a task force to develop an aftercare policy and to recommend the development of a legal framework for probation and aftercare services. The Chairperson of the Task Force is Florence Simbiri-Jaoko. The Task Force has been given the powers necessary for the proper execution of its mandate, which it is required to do diligence, and it is to submit its report within six months.