Sunday, August 17, 2008

WHEN BAD CHARACTER EVIDENCE MAY BE ALLOWED

By Michael Murungi

(This report was also published in the August 18, 2008 Edition of the Daily Nation Newspaper (page 14 column 1) under the heading 'Convict spoils appeal by raising issue of 'his bad character'")

August 2008

Mohamed Hassan Osman v Republic [2008] Eklr (www.kenyalaw.org)

Court of Appeal at Mombasa

R.S.C. Omolo, E.O. O’Kubasu & J.W. Onyango Otieno JJ.A

July 18, 2008

The Court of Appeal has reiterated that the evidence of an accused person’s previous bad character may not be adduced against him unless he has himself brought the matter of his character in issue in the trial. Accordingly, a court which is presiding over a criminal trial should warn an accused person who unwittingly raises the issue of his character that he could be waiving the protection given to him by the rule barring the prosecution from calling damning evidence of his criminal record.

The Court made the remarks in a judgment in the case of Mohamed Hassan Osman who had appealed against his conviction and sentence of death for the offence of robbery with violence. Osman had been tried and convicted in the Senior Resident Magistrate’s Court at Mombasa for having participated in the 1998 bank robbery at the Housing Finance Company of Kenya Ltd (HCFK) in Mombasa. Among the various witnesses called by the prosecution, the eight had been an eye-witness to the robbery. He had told the court that on the day of the robbery, he had seen Osman, who was well known to him, walking out of the bank with a pistol in one hand and a bag slung back over his shoulder. Osman had reportedly winked at the witness and muttered to him “kauka”, a popular street term which the witness understood to mean as a discrete command to stay put or keep quiet.

The witness testified that Osman was his neighbour in a residential estate of Mombasa and that he had led the police to Osman’s house where he was arrested. It appears that Osman did not have the benefit of legal representation during his trial and that he might have unwittingly asked a question during his cross-examination of the witness which brought in issue the question of his general character. In answer to that question, the witness had stated: “I knew you for two years prior to this incident. You live ten blocks away from my house. You are a well known person in that area. You are a criminal and people fear you as such..”.

While conducting his defence, Osman had conceded that he knew the witness but he told the court that the witness’s had been motivated by a grudge to falsely testify against him.

The trial magistrate found that the witness was credible and that Osman had been identified through recognition by a person known to him. This evidence, considered together with the rest of the prosecution’s case, led the trial court to find that the prosecution had established the guilt of Osman beyond reasonable doubt, and Osman was sentenced to death.


When the High Court examined the record of the trial court during its consideration of Osman’s first appeal, it found that there was no basis for interfering with the trial court’s findings of fact and its application of the law. The conviction and sentence were confirmed, prompting Osman to lodge a second and final appeal in the Court of Appeal, this time with the benefit of legal counsel in the person of Francis Kadima. Among the grounds raised in his second appeal, Osman’s advocate argued that the witness had wrongly brought the question of Osman’s character in issue because he (Osman) had not raised it. He further submitted that the trial court ought not to have admitted the bad character evidence and that the court should have prevented Osman from asking the questions regarding his character or it should have at least restrained the witness from answering them.


The Court of Appeal agreed that it was an established principle of our criminal justice system that the evidence of an accused person’s previous bad character is inadmissible unless the accused himself has put his own character in issue. In the circumstances of this case, the Court observed that it was obvious from the record of the proceedings in the trial court that it was Osman who had put his character in issue in his mode of questioning during the cross-examination of the witness. It was Osman who had asked the questions that had led to the answers touching on his character. The Court of Appeal regretted that the trial magistrate had failed to caution Osman about asking such questions but noted that the witness was bound to answer them and Osman could not complain at the appeal stage about an issue which he had “brought upon himself”. Ultimately, the Court of Appeal ruled that there was nothing in the complaint raised by Osman that could not justify the reversing of the decision of the High Court.


Furthermore, upon a consideration of rest of the evidence, the Court of Appeal was satisfied that Osman had been properly convicted and that the charge against him had been established beyond reasonable doubt. Osman’s appeal was therefore dismissed.


The writer is an advocate and the Assistant Editor of the Kenya Law Reports.

UNJUST ENRICHMENT THROUGH ECOMONIC DURESS: HIGH COURT DECISION REVERSED

Reported by Michael Murungi

(This report was also published in the August 18, 2008 edition of the Daily Nation newspaper (page 14 column 1) under the heading 'Politics Finally Cost Media Owner Shs. 56M)

Kenya Commercial Bank Ltd & another v Samuel Kamau Macharia & 2 others [2008]eKLR (www.kenyalaw.org)
Court of Appeal at Nairobi
P.K. Tunoi, E.M. Githinji & J.W. Onyango Otieno JJ.A
July 31, 2008

The Court of Appeal has reversed a decision of the High Court awarding Kshs. 56 Million to businessman and media magnate Samuel K. Macharia in a protracted litigation with government-owned financial institutions that had the high drama of the political intrigues characteristic of the 1980’s and 90’s.

Justice (Rtd.) Richard Kuloba had in January 2003 ruled in favour of Macharia and his company, Madhupaper International Ltd, after he found that the Kenya Commercial Bank (KCB), the Kenya Commercial Finance Company (KCFC) Ltd and the Kenya National Capital Corporation had abused the influence of the then President Dianel Arap Moi and Joseph Arap Letting, then the Head of Public Service and Secretary to the Cabinet, in applying unconscionable pressure and economic duress on Macharia and his company to overpay a loan by over Kshs. 56 Million. (see Madhupaper International Ltd & another V Kenya Commercial Bank Ltd & 2 others [2003] KLR 31 or on www.kenyalaw.org case search).

Madhupaper had borrowed Kshs. 50 Million from the three institutions in 1981 with a view to establishing a plant for the manufacture of tissue paper from recycled waster paper collected within the city of Nairobi. As a security for the loan, Madhupaper had given the lending institutions a charge over all its assets. After the company defaulted in its repayments, the lenders executed the terms of the charge by placing it in receivership to recover an outstanding Kshs. 54 Million made up of the balance of the unpaid principal sum and interest.

Macharia filed three suits against the lenders and the government but he would later withdraw them after the parties reached a negotiated settlement. Under that settlement, Madhupaper paid Kshs. 54 million in settlement of the loans and withdrew its litigation and in return, KCB and the other two lenders lifted the receivership. However, one week later, the lenders returned the money to Madhupaper and restored the receivership citing certain conditions that Madhupaper had attached to the settlement which they did not find acceptable. Further negotiations ensued and in July 1989, when soaring interest and other costs had raised the outstanding loan to over Kshs. 110 Million, Madhupaper executed a deed which would later become the subject of renewed litigation. Under the deed, Madhupaper paid Kshs. 110 Million to the lenders in full and final settlement of the loans. The receivers were recalled and Macharia finally resumed the management of Madhupaper.

In 1992, Macharia and Madhupaper filed a suit in the High Court claiming that their actual indebtedness at the time of the deed was Kshs. 54 Million and that the extra Kshs. 56 million had been extracted from them through undue influence and fraud. After almost a decade of litigation, Justice Kuloba delivered a judgment in which he analyzed and applied the principles of economic duress, restitution and unjust enrichment. He found that Macharia and Madhupaper had been subjected to illegitimate pressure and had been coerced through the unconscionable conduct of KCB and the other lenders to pay surplus monies over and above what they actually owed. Accordingly, judgment was entered in favour of Macharia and Madhupaper in the amount of Kshs. 56 million representing the surplus monies paid to the financial institutions. KCB and the other lenders had filed an appealed against the decision in 2004.

While the Court of Appeal agreed with the High Court’s exposition of the principle of unjust enrichment and its application to Kenya – generally, that a person who has received an unjust benefit at the expense of another should not be allowed to retain the benefit – it differed with the manner in which the High Court had applied the principle to the facts of the case. Restitution or repayment cannot be ordered where the benefit in question was conferred through a valid legal obligation owed by the claimant to the defendant, the Court of Appeal observed. In other words, a person who has an honest claim in law to the money of another person, whether though a loan agreement, a charge, etc, cannot be said to have been unjustly enriched if he is paid that which was legally owed to him.

Having evaluated the evidence on which the High Court had based its decision, the Court of Appeal found that the agreement for the payment of Kshs. 110 Million had voluntarily signed by the parties to it in the presence of their directors or advocates. In fact, Appeal Judge P. Tunoi noted that “Macharia and Madhupaper were represented by some of the most able and prominent counsel in the country”. Macharia had signed the deed on behalf of Madhupaper in the presence of his advocates without raising any protest or question as to their willingness to pay the money and they had not challenged the validity of the deed.

Moreover, the Court found no evidence of any compulsion or duress having been brought upon Macharia and Madhupaper to pay the money. In fact, the High Court had been wrong in finding that KCB and the other lenders had roped Joseph Arap Letting into the affair “for the purpose of creating terror” in Macharia and Madhupaper. On the contrary, the Court of Appeal found, it was Macharia who had courted the intervention of the then President Moi and Letting. There was no evidence of any direct intervention by the former President or at least any undue intervention by Letting.

The Court of Appeal further observed that Macharia and Madhupaper had voluntarily committed themselves to pay by entering into a valid deed. Therefore, by making the payment, they were performing an obligation owed to KCB and the other institutions which had a valid and honest claim against them. The High Court had arrived at a wrong decision after it had misdirected itself by misconstruing the facts and the evidence, and on that account, the Court of Appeal had the jurisdiction to interfere with the decision.

The judgment of the High Court was set aside and substituted with an order dismissing Macharia’s claim. Macharia and Madhupaper were ordered to pay to the other parties the costs of the appeal.

The writer is an advocate and the Assistant Editor of the Kenya Law Reports.

Monday, August 4, 2008

WHY ELECTORAL COMMISSION WAS ORDERED TO DECLARE KAMUKUNJI RESULTS

(This report was also published in the Daily Nation newspaper (page 14 column 1) on August 4, 2008)

By Michael Murungi
August 2008
Republic v The Returning Officer, Kamukunji Constitutency & another [2008] eKLR
(www.kenyalaw.org)
High Court at Nairobi
Justices J.G. Nyamu and R. Wendoh
July 29, 2008

The High Court has ruled that the Electoral Commission of Kenya (the ECK) acted in abuse of its powers when it postponed or nullified the Parliamentary election results for Kamukunji Constituency in Nairobi during the General Elections held on December 27, 2007. Judges J. Nyamu and R. Wendoh made the ruling in a judicial review application filed by Simon Ng’ang’a Mbugua, who was one of the candidates in the election and who claimed to have been on the verge of winning the election before the ECK called off the vote tallying exercise ostensibly due to chaos in the counting hall.

The Court clarified that the law does not empower the ECK to cancel an election which has taken place. The ECK can only postpone an election which has not started for specific reasons provided by law and to order the cancellation, postponement or nullification of election results is the sole function of an Election Court.

Mbugua had filed his application for judicial review on January 17, 2008 asking the court to issue an order compelling the returning officer for the election and the ECK to discharge their legal duty to tally the results and to publicly declare and gazette the winner of the election. He asked for an order restraining the Commission from undertaking repeat elections for the constituency.

Mbugua had told the court that voting in Kamukunji had been peaceful and after all the votes had been counted, results were publicly announced and declarations of results prepared in the prescribed Form 16A of the National Assembly and Presidential Elections Act. After the announcement of results by the Presiding Officers in all the constituency’s polling stations, the forms were forwarded to the Returning Officer at Shauri Moyo Social Hall for tallying of the total Constituency results. This exercise was to take place mainly December 28, 2007. On the evening of same day, Mbugua further told the Court, the Returning Officer announced “provisional results” showing him as the winner. On the following day, a local daily newspaper reported that he had won the election with a tally of 9,524 votes. Later, as the results from the last polling stations were being tallied, Mbugua claimed that agents of the losing candidates disrupted the exercise forcing the police to evacuate the tallying hall. Mbugua faulted the Returning Officer for failing to resume the tallying even after calm returned to the hall. Instead, she could not be traced and the Electoral Commission sitting at the KICC later declared that the Kamukunji elections would be repeated. This decision, Mbugua submitted, was illegal because only the High Court had the power to cancel or nullify the results and because the Returning Officer was legaly bound to reconvene and complete the tallying exercise.

The application was opposed by the ECK, the Returning Officer and a number of the other parliamentary candidates who had joined the dispute as interested parties. The substance of the ECK’s defence was that by the time the vote tallying exercise was violently disrupted, the results of 22 polling stations had not been tallied and documents for three ballot boxes had been destroyed. In these circumstances, the ECK argued, the final results could not be tallied or announced, and this prompted the ECK to exercise the power granted to it by regulation 25A of the National Assembly and Presidential Election Regulations “to postpone, annul, start or restart elections”.

The High Court observed that the ECK had not offered any explanation why some of the results had gone missing at the tallying stage when they had been received from the presiding officers from all the polling stations. Further, regulations 25, 25A and section 34 of the National Assembly and Presidential Elections Act did not empower the ECK to cancel elections which had taken place. The law only empowered the ECK to postpone an election which had not started for the specific reasons spelt out in the Regulations. In canceling or postponing the elections, the ECK was exercising a power which is only given to an election court. “The objectives of the Electoral Law is to do justice to all the parties” said the Judges. “It is unacceptable that because some results were missing which ought to have been in the possession of the ECK and the returning officer and which had been signed for by the candidates or their agents at each polling station, that should prevent the announcement of the overall results”. This point was supported by the fact that the returning officer had admitted that the missing results could be retrieved from the secured ballot boxes and that they would not have made any difference to the overall result. Moreover, the returning officer had announced Mbugua as the winner during the tallying stage. The High Court reiterated that the issue of the missing ballot boxes and their effect on the overall result would have been a matter for an election court yet no such court could be constituted because the final result had not been announced.

In the High Court’s view, it would have been more consistent with the proper management of elections for the ECK to instruct the Returning Officer to complete the vote tallying rather than to “give in to the forces of anarchy and chaos”. Even after calm had returned to the country, the ECK could have applied to the Court to lift any order staying the tallying exercise and to proceed with and complete the exercise.

The Judges reiterated that they were not sitting as an election court considering an election petition but rather as a judicial review court asked to review the decision of an administrative body, i.e. the ECK. More particularly, they were sitting to determine whether the ECK had failed to discharge the duty placed upon it by law. It having been established that the ECK had failed in its duty, it was the Court’s duty to order the ECK to comply with the law and also to prohibit it from exercising a power that it did not have. ECK’s order cancelling, nullifying or postponing the Kamukunji elections was therefore quashed and an order was issued compelling it to tally the results for each candidate and to publicly declare and gazette the winning candidate.