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CIVIL LITIGATION PAPER
QUESTION 1 JUDICIAL
REVIEW
REPUBLIC OF KENYA
IN THE HIGH COURT OF
KENYA AT NAIROBI
MISC. CAUSE NO. … OF 2013
IN THE MATTER OF: THE
CONSTITUTION OF KENYA ARTICLE 23(3)(F) AND
IN THE MATTER OF: THE LAW REFOREM ACT
CHAPTER 26
LAWS OF KENYA SECTIONS 8 AND 9
IN THE MATTER OF: AN APPLICATION FOR
LEAVE TO APPLY FOR
JUDICIAL REVIEW ORDERS OF CERTIORARI
AND PROHIBITION
BETWEEN
AKINYI MWANGALE...............…………………………….………….
APPLICANT
AND
INSPECTOR GENERAL OF POLICE………………....………………..RESPONDENT[S1]
CHAMBERS SUMMONS
(Under
Order LIII Rules 1 and 2 of the Civil Procedure Rules, Sections 8 and 9 of the
Law Reform Act Cap 26 Laws of Kenya and all other enabling provisions of the
law)
LET ALL PARTIES CONCERNED attend the Honourable Judge in Chambers
on the day of 20.. at 9 O’clock in
the forenoon or soon thereafter as counsel for the Applicants may be heard on
an Application for ORDERS THAT:-
1.
This
Application be certified as urgent.
2.
Leave
do issue to the Applicant to apply for:-
[S3]
c.
AN
ORDER OF PROHIBITION directed at the Respondent prohibiting the Respondent and
officers subordinate to him from discriminating and profiling members of the
Alawuon ethnic group.
WHICH APPLICATION is based on the following grounds:-
a)
….
AND
is further grounded on the grounds set out in the statement annexed
hereto and the verifying Affidavits of ……. and on further grounds to be
adduced at the hearing hereof.
DATED
at Nairobi this day of
20...
ADVOCATES FOR THE APPLICANT
DRAWN
& FILED BY:-
XXXXXX
NAIROBI
IT IS INTENDED TO BE SERVED THE NOTICE
OF MOTION SUBSEQUENT TO THIS APPLICATION UPON:
The Attorney
General
Sheria House
NAIROBI
REPUBLIC OF KENYA
IN THE HIGH COURT OF
KENYA AT NAIROBI
MISC. CAUSE NO. … OF 2013
IN THE MATTER OF: THE
CONSTITUTION OF KENYA ARTICLE 23(3)(F) AND
IN THE MATTER OF: THE LAW REFOREM ACT CHAPTER
26
LAWS OF KENYA SECTIONS 8 AND 9
IN THE MATTER OF: AN APPLICATION FOR
LEAVE TO APPLY FOR
JUDICIAL REVIEW ORDERS OF CERTIORARI
AND PROHIBITION
BETWEEN
AKINYI
MWANGALE...............…………………………….………….
APPLICANT
AND
INSPECTOR GENERAL OF
POLICE………………....………………..RESPONDENT
STATEMENT
(Under order LIII rule 1(2) of the
Civil Procedure Rules and all enabling provisions of
the law)
A. NAME
AND DESCRIPTION OF THE APPLICANT
1. THE NAME OF THE APPLICANT IS (NAME AND
DESCRIBE THE APPLICANT…THE APPLICANT’S ADDRESS IS…)[S6]
B. RELIEFS
SOUGHT
THE
APPLICANT SEEKS:-
[S8]
c. AN ORDER OF PROHIBITION directed at the
Respondent prohibiting the Respondent and officers subordinate to him from
discriminating and profiling members of the Alawuon ethnic group.
C.
THE GROUNDS UPON WHICH THE RELIEF(S) IS/ARE SOUGHT:-
1. SPECIFY THE GROUNDS UPON WHICH THE
APPLICATION IS BASED[S9]
DATED AT
NAIROBI THIS …..DAY OF ……20...
SIGNED
ADVOCATES FOR THE APPLICANTS
DRAWN
& FILED BY:-
xxxxxx
NAIROBI
REPUBLIC OF KENYA
IN THE HIGH COURT OF
KENYA AT NAIROBI
MISC. APPLICATION NO.
… OF 2009
IN THE MATTER OF: THE
CONSTITUTION OF KENYA ARTICLE 23(3)(F) AND
IN THE MATTER OF: THE LAW REFOREM ACT
CHAPTER 26
LAWS OF KENYA SECTIONS 8 AND 9
REPUBLIC …………………………………………………………….. APPLICANT
-VERSUS-
THE
INSPECTOR GENERAL OF POLICE…………….……………. RESPONDENT
EX PARTE:
AKINYI MWANGALE[S10]
..............
NOTICE OF MOTION
TAKE NOTICE that pursuant to leave granted by this
Honourable Court on the … day of July 20.., the Honourable Court shall be moved
on the day of 20.. at 9.00 O’clock
in the forenoon or soon thereafter as counsel for the ex parte applicants may be heard on an application for ORDERS THAT:-
[S13]
WHICH APPLICATION is grounded on the grounds set out in the statement already filed and the
verifying Affidavits of …….. and… on further grounds to be adduced at
the hearing hereof.
DATED
at Nairobi this day of
20..
……..
ADVOCATES FOR THE EX PARTE APPLICANTS
DRAWN
& FILED BY:-
XXXXXXX
NAIROBI
TO BE SERVED UPON:-
1.
The Attorney General
Sheria House
NAIROBI
2.
The
Chief Magistrate’s Court
NAIROBI
3.
XXXXXXX
NAIROBI
QUESTION 2 HABEAS CORPUS
A)
IN THE REPUBLIC
OF KENYA
IN THE HIGH
COURT OF KENYA AT NAIROBI
MISC. CAUSE
NO….OF 2013
ABENGA
BIIRA………………….……………………..APPLICANT
AND
INSPECTOR
GENERAL OF POLICE……………..RESPONDENT
DATED
at Nairobi this day of
20...
…….
ADVOCATES FOR THE APPLICANT
DRAWN
& FILED BY:-
XXXXXX
NAIROBI
IN THE REPUBLIC
OF KENYA
IN THE HIGH
COURT OF KENYA AT NAIROBI
MISC. CAUSE
NO….OF 2013
ABENGA BIIRA……………………………………..APPLICANT
AND
INSPECTOR GENERAL OF POLICE……………..RESPONDENT[S17]
CHAMBER SUMMONS
[S18]
LET ALL PARTIES CONCERNED attend the Honourable Judge in
Chambers on the day of 20.. at 9 O’clock in
the forenoon or soon thereafter as counsel for the Applicants may be heard on
an Application for ORDERS THAT:-
1.
This
Application be certified as urgent.
5. That the court
do declare that the applicant’s rights under the constitution have been or are
about to be infringed;
6. Costs of this
application be provided for.
WHICH APPLICATION is based on the following grounds:-
a)
The
applicant was taken into custody by the Respondent’s officers on the 28
September 2013;
b) The applicant has since not
been taken before a court of law;
c) He has been in the
Respondent’s custody for the last 2 months;
d) The Respondent has no lawful
reason to continue detaining the applicant in custody;
e) the continued detention of
the applicant in the custody of the Respondent is injurious to the
constitutional rights of the applicant.[S22]
AND
is further grounded on the affidavits of Jill Biira, Brenda Ndugutse and
on further grounds to be adduced at the hearing hereof.
DATED
at Nairobi this day of
20...
ADVOCATES FOR THE APPLICANT
DRAWN
& FILED BY:-
XXXXXX
NAIROBI
IN THE REPUBLIC
OF KENYA
IN THE HIGH
COURT OF KENYA AT NAIROBI
MISC. CAUSE
NO….OF 2013
ABENGA BIIRA………………………………………..APPLICANT
AND
INSPECTOR
GENERAL OF POLICE……………..RESPONDENT
SUPPORTING
AFFIDAVIT
I Jill
Abenga a resident of Rongai and of Post Office Box Number….Kajiado in the
Republic of Kenya do hereby solemnly and sincerely make oath and state as
follows:
1. THAT I am a female adult of sound mind and disposition hence
competent to make and swear this affidavit.
2. THAT I am the wife to the applicant/subject herein hence.
3.
THAT I live with the applicant
in Rongai township of Kajiado County.
4.
THAT the
applicant was taken into custody by the Respondent’s officers on the 28
September 2013 at our matrimonial home in Rongai township of Kajiado County.
5. THAT the applicant has since
not been taken before a court of law for the last two months.
6. THAT I am advised by the
applicant’s advocates on record which advise I verily believe to be true that
the Respondent has no lawful reason of detaining the applicant.
7. THAT I am advised by the
applicant’s advocates on record which advise I verily believe to be true that the
continued detention of the applicant in the custody of the Respondent is
injurious to the constitutional rights of the applicant.[MSOffice24]
8. THAT all that is deponed to
herein is true to the best of my knowledge save for matters deponed to on
information and belief sources and grounds whereof have been disclosed.
SWORN at Nairobi
this….day of…..November 2013
BEFORE ME
COMMISSIONER FOR OATHS
B)
·
Production order is issued only
in ongoing proceedings while Habeas corpus is not issued in relation to any
other proceedings other than the application for the writ;
·
Production Order is issued by
any court seized of proceedings for which the accused is in custody while the
writ of habeas corpus is only issued on application by the High Court. [MSOffice25]
QUESTION 3 : Taking Plea
The procedure is as set out in Aden
v R [1973] E.A 445 (C.A) where the following guidelines were laid down:
1)
The
charge and all the essential ingredients of the offence should be explained to
the accused in his own language or in one that he understands;
2)
The
accused’s own words should be recorded and if they are an admission a plea of
guilty should be recorded;
3)
The prosecution should then immediately state the facts
and the accused should be given an opportunity to dispute/explain facts or to
add any relevant facts;
4) If the accused does not agree with
the facts or raise any question of his guilt, his reply must be recorded and
change of plea entered;
5) If there’s no change of plea, a
conviction should be recorded and a statement of the facts relevant to sentence
together with the accused‘s reply should be recorded;
In this instance,
the accused’s plea was equivocal. The court did not enter a plea of guilty. The
magistrate sentenced the appellant without convicting him. The right to appeal
is a matter of right under law.[MSOffice26]
b)
IN THE REPUBLIC OF KENYA
AT THE HIGH COURT OF KENYA IN NAIROBI
CRIMINAL APPEAL NO. ….2013
HARAKA HARAMU…………….APPELLANT
VERSUS
REPUBLIC……………………….RESPONDENT
PETITION OF APPEAL
(Being an appeal
against the conviction and sentence of Hon. Phionah Yassin (Ms.) CM in Criminal
Case No. … of …, Republic versus Haraka Haramu delivered on 12November, 2013)
The Appellant, Haraka Haramu, hereby appeals
against the conviction and sentence of the court in criminal case No. …. of ….
on the following grounds:-
1.
The learned
magistrate erred in law in recording a plea of guilt on an equivocal plea.
2.
The learned
Magistrate erred in law in failing to enter a plea of guilt.
3.
The learned
Magistrate erred in law in failing to convict the appellant.
4.
The learned
Magistrate erred in law in failing to ask the prosecution to render facts of
the charge.
5.
The learned
Magistrate erred in law in failing to entertain the appellant on mitigation.
6.
The
learned magistrate erred in law in sentencing the appellant under the wrong
provisions of the law.
REASONS WHEREFORE the Appellant prays that the conviction and sentence
be set aside.
DATED at Nairobi this 25th
day of October, 2007.
xxxx & CO.
ADVOCATES FOR THE APPELLANT
Drawn & Filed By: -
Q. 4
a)
The first part of (a) simply
calls for identification of the three basic classifications or categories of
bail, namely:-
i.
Bail pending trial...½ Mark.
ii.
Bail pending appeal...½ Mark.
iii.
Anticipatory Bail (sometimes
called bail pending arrest)...½ Mark.
The
second part of (a) calls upon the candidate to dig a little deeper into his/her
knowledge of the subject of bail and broadly say something about its guiding
principles under the three identified classifications:-
i.
Bail pending trial
Ø Ordinarily applies to a person under arrest on suspicion of
involvement in commission of a criminal offence. Bail entails a temporary
release of a criminal suspect from custody to await trial.
Ø Issue of the suspect’s temporary release pending trial may arise at
a police station or in court.
Ø If the issue arises at a police station, a police officer
investigating the alleged offence may require the suspect to execute a bond in
such sum & in such form as may be required, subject to the condition that
the suspect shall duly attend court if required to do so: S. 53(1) National
Police Service Act, No. 11A of 2011; also S. 123(1) CPC.
Ø If the issue arises when the suspect has been taken to and accused
before court, the court may give bail.
Ø The suspect’s/accused’s executed bond or written promise to turn up
in court for trial as a condition for his/her temporary release constitutes a
recognisance and the term bail bond is frequently used: See Douglas Brown’s
“Criminal Procedure in Uganda & Kenya” (p. 27).
Ø The principal guidelines for the release of a criminal suspect on
bond or bail pending trial are the constitutional presumption of innocence
until the contrary is proved: Art. 50(2)(a); and the fact that bail is a
constitutional right (not absolute), which obligates the prosecution to show
compelling reasons for refusal of bail: Art. 49(1)(h).
Ø The main consideration in bail pending trial is whether the accused
will attend trial; here the presumption of innocence weighs heavily in favour
of the grant of bail.
.........1½Marks.
ii.
Bail pending appeal
Ø Here the scenario changes drastically in that the presumption of
innocence no longer applies. Instead the presumption is that when the applicant
for bail was convicted, he/she was properly convicted. That is why where he/she
is undergoing custodial sentence, he/she must demonstrate that there are
exceptional circumstances or unusual circumstances to warrant his/her release
on bail pending appeal: See e.g. Somo
–vs- R [1972] EA 476.
Ø Other judicial precedents hold that the most fundamental ground for
consideration of bail pending appeal is whether the appeal has overwhelming
chances of success: See e.g. Masran –vs- R [1960] EA 321.
.........1½Marks.
iii.
Anticipatory Bail
Ø Not specifically provided for by Kenyan law.
Ø Jurisprudence is, however, now firmly settled that bail may be
granted in anticipation of arrest for ulterior motives other than genuine
pursuit of criminal justice: See W’Njuguna –vs- Republic [2004] 1 KLR
520.
Ø It is to be noted that bail is one of the fundamental rights and
freedoms under Kenya’s Constitutional Bill of Rights (Ch. 4). The jurisprudence
alluded to above is in line with the Constitution which, for instance, provides
that every person has the right to institute court proceedings claiming that a
right or fundamental freedom in the Bill of Rights has been denied, violated or
infringed, or is threatened: Art. 22(1).
.........1½Marks.
b)
The candidate with a good grasp
of the principles of bail under the three classifications alluded to under part
(a) is expected to detect from the practical scenario given in this part (b)
that the principles to guide him/her in crafting a Ruling are the principles
guiding considerations of applications for bail pending trial, apply them
suitably and write an appropriate Ruling. As to how many of the 9 available
marks the candidate earns depends on demonstration of-
i.
Knowledge of the applicable
bail principles;
ii.
Appreciation that guidelines
for writing a Ruling in a criminal matter are basically the same as those for
writing a Judgment in a criminal matter given in S.169 CPC;
iii.
Logical and cogent reasoning
including use of relevant precedents in support of the position he/she takes
regarding the given scenario. Demonstration of knowledge, for instance, of Republic
–vs- Danson Mgunya & Another(High Court Criminal Appeal No. 26 of 2008)
where bail pending trial in a murder case was granted and of Republic –vs-
John Kahindi Karisa & 2 Others (High
Court Criminal Appeal No. 23 of 2010) where the same court denied bail pending
trial in a murder case and the reasons for the different decisions would be an
added advantage.
............9 Marks.
Q. 5
a) Identification (ID) Parades are part of
the process of investigation and detection of crime. An ID
Parade may be described simply as a
line of persons including someone suspected/accused of involvement in the
commission of a reported criminal offence.
..........1½
Marks.
b) The purpose of an ID Parade is to give
a witness claiming to have witnessed the commission of a reported crime an
opportunity to pick the suspect (previously unknown to the witness) from the
parade in order for the suspect to face the requisite criminal charge(s) for
the alleged offence(s).
..................1½ Marks.
c) The legal basis for ID Parades is
broadly derived from the National Police Service Act, No.11A of 2011 which
empowers the police to undertake investigation and detection of crime: See
S.35(b) & (d). ID Parades are expressly provided for under the Police
Standing Orders (Chapter 46 Standing Order 6) previously made under the
Repealed Police Act S.5 and saved under the succeeding National Police Service
Act: See S.131.
..............2 Marks.
d) The procedure for conducting ID Parades
may be described broadly as follows:
i. The identifying
witness must have given a description of the suspect to the police or person in
authority at the time of reporting the crime.
ii. The officer conducting the parade, who
must not be the investigating officer, to inform the suspect of the reason for
the parade and to inform him/her of his/her right to have a lawyer or friend
present during the parade.
iii. The
identifying witness not to see the suspect prior to proceeding to the parade.
iv. The suspect to be placed amongst at least
8 other persons as far as possible of similar age, height, general appearance
and class of life as himself/herself.
v. When explaining the procedure to a
witness, the officer conducting the parade should tell him/her that he/she will
see a group of people which may or may not contain the person responsible. The witness should not be told “to pick
somebody” or be influenced in any way whatsoever.
vi. Should the suspect be suffering from
disfigurement, steps should be taken to ensure that it is not especially
apparent.
vii. The suspect should be allowed to take any
position he/she chooses and be allowed to change position after each
identifying witness has left, if he/she so desires.
viii. Care
must be taken to ensure witnesses do not communicate with each other.
ix. Every
unauthorised person must be excluded from the parade.
x. If
the witness desires to see the suspect walk, hear him/her speak, see him/her
with his/her hat on or off, this should be done but in such event the whole
parade should be asked to do the same.
xi. The officer commanding the parade should
ensure that the witness actually
touches the person he/she
identifies.
xii. At the termination of the parade, or
during the parade, the officer conducting the parade should ask the suspect if
he/she is satisfied that the parade has been conducted, or is being conducted,
in a fair manner and note the suspect’s reply in the ID Parade Form (156).
xiii. A careful note must be made, after each
witness leaves the parade, to record whether he/she identified the suspect and
in what circumstances.
xiv. A record should be made by the officer
conducting the parade of any comment made by the suspect during the parade,
particularly comments when the suspect
is identified.
xv. The parade must be conducted with
scrupulous fairness, otherwise the value of identification as evidence will be
lessened or nullified.
..................10 Marks (any 10 of the above answers
to earn the candidate the 10
available
marks).
Q.6
a) Offences
committed
i. Kalulu Juha, Shetani Mwanga and Simba
Mkali committed against Jirani Mwema the major offence of robbery with violence
[contrary to S.296(2) of the Penal Code].
...........2 Marks.
ii. Kalulu Juha, Shetani Mwanga and Simba
Mkali committed against Rama Faraja the offence of malicious damage to property
[contrary to S.339(1) of the Penal Code].
..............2 Marks.
b) Charges
Count One
Statement of Offence
Robbery
with violence, contrary to Section 296(2) of the Penal Code, Cap.63.
Particulars of Offence
1.
Kalulu Juha 2. Shetani Mwanga 3. Simba Mkali: On the 4th April,
2013 at the residence of Mr & Mrs Jirani Mwema in the neighbourhood of the
Kenya School of Law within Nairobi City County in the Republic of Kenya, being
armed with dangerous or offensive weapons, namely, a pistol, a panga and a crowbar jointly robbed
Jirani Mwema of his cash Kshs.70,000/=, Nokia Mobile Phone valued at
Kshs.20,000/= and Transistor Radio valued at Kshs.10,000/= and at or
immediately before or immediately after the time of the robbery used personal
violence to the said Jirani Mwema.
..............5½ Marks.
Count Two
Statement of Offence
Malicious
damage to property, contrary to Section
339(1) of the Penal Code, Cap.63.
Particulars of Offence
1.
Kalulu Juha 2. Shetani Mwanga 3. Simba Mkali: On the 4th April,
2013 at Rama Faraja’s gate in the neighbourhood of the Kenya School of Law
within Nairobi City County in the Republic of Kenya, wilfully and unlawfully
smashed and destroyed Rama Faraja’s gate lights valued at Kshs.5,000/=.
.................. 5½ Marks.
