UNIVERSITY OF NAIROBI SCHOOL OF LAW CLINICAL ASSIGNMENT REPORT (MAY 2014-JULY 2014) NAME Mosoti Sandra Nyanchama ADMISSION NUMBER G34/54074/2012 MODULE II evening COURT STATION NAKURU

UNIVERSITY OF NAIROBI

SCHOOL OF LAW

CLINICAL ASSIGNMENT REPORT(MAY 2014-JULY 2014)

NAME Mosoti Sandra Nyanchama

ADMISSIONNUMBER

G34/54074/2012

MODULE II evening

COURT NAKURU LAW COURTS

1

STATION

TABLE OF CONTENTSCOVER PAGE 1

TABLE OF CONTENTS 2

NARRATIVE ASSIGNMENT 3-22

1A. CIVIL CASES

NEW BUILDING LTD V PERMANENT SECRETARY MINISTY OF HOUSING 3

ONESMUS WARUI VERSUS NAMWAKE INVESTMENTS LTD 5

JOSEPH MBUGUA VERSUS JANE WANJIKU 7

SAMUEL BUSIENEI VERSUS LYNNET CATER 10

ERIC KARANJA VERSUS SAMUEL GITHINJI 12

1B. CRIMINAL CASES

REPUBLIC VERSUS BENSON KARIUKI & PRISCILLA NDUTA 13

REPUBLIC VERSUS ALEX MAKORI 15

REPUBLIC VERSUS BOB OPIYO OYUGI 18

REPUBLIC VERSUS PETER MAINA 20

REPUBLIC VERSUS ONESMUS MUTUA 21

REFLECTIVE/ANALYTICAL ASSIGNMENT

2A. OBSERVATIONS OF THE COURT22-25

2B. CONCLUSIONS FROM OBSERVATIONS26-37

2B. I. AILS OF THE ADMINISTRATION OF JUSTICE IN KENYA

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A. Backlog of cases in court27

B. Irregularities in the court system28

C. Lack of knowledge of the law in general29

D. Substandard prosecution31

E. Lawyers 32

2B. II POSSIBLE REFORMS IN THE KENYA CRIMINAL JUSTICE SYSTEM

A. Fixing the loopholes in the criminal justice system33

B. Undertake measures to reduce backlog of cases34

C. Conducting a countrywide mission to educate the people of Kenyaabout the law 35

D. Introduction of court stenographers/reporters to Kenyan courts 37

REFERENCES 39

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QUESTION 1: NARRATIVE ASSIGNMENT1A. CIVIL CASES

1. NEW BUILDING LTD V PERMANENT SECRETARYMINISTY OF HOUSING

CASE NUMBER 206/2012

YEAR 2012

PARTIES TO SUIT New Building ltd………….Plaintiff

P.S ministry of Housing…...Defendant

NAME OF PRESIDING JUDGE

DATE OF PROCEEDINGS

1st July 2014

SUMMARY FACTS OF THE CASEThis case was based on the alleged infringement of a patent by the government through the ministry of housing.

In the demand letter, the plaintiff claimed to have introduced the technology with the aim of either selling or licensing the patent to the government. He also claimed that the defendant has failed to value and pay for the acquisition of the technology

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despite the defendant’s using the technology without authority from the plaintiffs

The plaintiff’s claim against the defendant is for an order of valuation and payment for the acquisition value of the project. Their prayers are:

1. Cost of acquisition of the patented technology at k.shs. 3,200,000,000.00 /= and yearly loyalties of k.shs.300,000,000.00/= from the date of acquisition of the patented technology until its payment in full

2. Declaration that the defendant is obliged to protect the plaintiff’s rights

3. Costs of the suit

The defense claims that at no time did the ministry enter into agreement to buy, use or in any way acquire the New Build technology.

IN COURT

WITNESS: Eng. Samuel Gachanja

POSITION: CEO New Build Technology Ltd.

The witness was present in court for examination-in-chief.

In his testimony the witness started that he had dedicated his life-work into this project which was centered on reducing the cost of building houses. He said that his technology resulted to a reduction of up to 16% building costs. The technology heavily relied on quarry stones as building material.

The witness stated that he had built a demonstration house on government land (now public land) in Nakuru and the building costs were covered by their company. The government through the ministry of housing then employed the technology to build police Houses in Nakuru, without his consent.

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The witness said that other than consultation fees, he hasn’t been paid anything for the use of the New Build Technology.

The case was adjourned to a later date for cross examination of the said witness.

2. ONESMUS WARUI VERSUS NAMWAKE INVESTMENTS LTD


YEAR 2012

PARTIES TO SUIT ONESMUS WARUI ….PLAINTIFF

NAMWAKE INVESTMENTS LTD……DEFENDANT

NAME OF PRESIDING JUDGE

6

DATE OF PROCEEDINGS

BACKGROUND

The plaintiff filed this matter in court on the 16th of November

2012 through a plaint.

In his plaint, the plaintiff alleges that he was a turn boy for

the defendant company. He states that on the 18th of April 2011,

the plaintiff was in a lorry, KAC 607Z, property of the defendant

when they were involved in a road accident along Nairobi- Nakuru

road. He further states that the accident was caused by brake

failure which caused the lorry to overturn. He alleges negligence

of the part of the defendant company. The plaintiff sustained

injuries as a result.

Particulars of negligence of the defendant;

1. Failure to take adequate precautions to prevent the

accident.

2. Failure to provide safe working environment.

3. Exposing plaintiff to danger.

4. Failure to provide safe work gear.

5. Failure to warn plaintiff of the danger likely to arise.

Particulars of injuries sustained;

1. Multiple cut wounds on the forehead.

2. Bruises on both lower limbs.

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3. Injury on shoulder.

4. Injury to lumbar spine.

5. Injury on right hand joint.

Particulars of special damages;

1. Medical report– K.shs. 500/=

Prayers

1. General damages

2. Special damages- K.shs. 500/=

3. Costs of this suit.

Alongside the plaint, the plaintiff also filed a list of

documents which include the following

1. Discharge card

2. Clinic card

3. P3 form

4. Medical report

5. Receipts from Kiambu district hospital

He also filed his list of witnesses.

No defense was filed by the defendant company and the court

entered an interlocutory judgment against the defendant on 17th

April 2013. The matter proceeded for formal proof.

IN COURT

WITNESS: Onesmus Warui

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POSITION: Plaintiff

In his testimony, the plaintiff told the court that on the 18th

of April 2011, they were travelling to Rongai in the defendant’s

lorry, transporting building blocks. On reaching CID

Headquarters, the brakes failed and as a result, the accident

occurred. He woke up and found himself at Nakuru District

Hospital. He was admitted for two days and discharged on 21st

April 2011. He refers to the discharge card marked exhibit 1. He

also produced a clinic card marked exhibit 2, a P3 form marked

exhibit 3.

WITNESS: Dr. John Mwaura

POSITION: Examining doctor

The second witness was Doctor George Mwaura. He was the examining

doctor and he states that by the time he was examining the

plaintiff, he had already recovered but had scars on the

forehead. He produces the medical report marked exhibit 4.e

3. JOSEPH MBUGUA VERSUS JANE WANJIKU

CASE NUMBER 104/13

YEAR 2013

PARTIES TO SUIT JOSEPH MBUGUA…….PLAINTIFF

9

JANE WANJIKU……DEFENDANT

NAME OF PRESIDING MAGISTRATE

HON. CHIEF MAGISTRATE JOELNG’ENO

DATE OF PROCEEDINGS

30TH MAY 2014

SUMMARY FACTS OF THE CASE

Joseph the father of the plaintiff is suing for his deceased son

David Mbugua. He received a phone call informing him that his son

had been involved in a road accident and he had been taken to

Nakuru Provincial Hospital. He stayed for 3 weeks in hospital.

IN COURT.

WITNESS: Joseph Kamau

POSITION: Plaintiff/father to the deceased

IN his testimony the plaintiff stated that he first took his son

to Aga Khan Hospital on 9th May 2013, incurring expenses

amounting to K.shs. 1900. A C scans of K.shs. 9,000. He produced

the receipts as exhibits.

On 26th May 2013, he transferred his son to Moi teaching and

referral hospital by ambulance for further treatment. The

transfer by ambulance was K.shs. 25,000. For the medical services

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at Moi teaching and referral hospital he paid K.shs. 50,168.00/=

He produced the receipts as exhibits.

Unfortunately he died while undergoing treatment on 1st June 2013

Other medical costs include.

K.shs. 1,000.00/= for medicine at Moi teaching and referral

hospital

K.shs. 1,000.00/= for Radiology

K.shs. 13,000.00/= for mortuary bill.

K.shs. 37,000.00/= for Hearse services

The deceased was buried on 6th June 2013 at his home. The burial

cost was K.shs 50,000.00/=

For this suit, the plaintiff acquired an Administration litem( letter

of court) for K.shs. 25,000.00/=

The car registration number KBA 735 TOYOTA PRADO was registered

to one Karanja Daniel. At the time of accident the driver was

Jane Wanjiku. The driver had recently been charged with careless

driving and driving with an expired license. She pleaded guilty

and it’s on record.

This plaintiff claimed that his son, the deceased, was a

motorcycle driver, operated a pool table business and selling

milk which earned him a minimum of K.shs.8,000.00/= the son was

the sole provider of the family and he was 26 years old.

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He blames Jane Wanjiku for the accident and he seeks

compensation.

Cross examination

Upon the cross examination, the following issues were

highlighted;

1. The father of the deceased did not witness the accident and

is in no position to provide sufficient details of the

incident.

2. The deceased was carrying two passengers which are in excess

since the law only allows for one passenger.

3. The defendant’s lawyer produced an exhibit showing that he

paid K.shs. 6,000.00/= for the CT scan.

WITNESS 2: Peter Njoroge

POSITION: Uncle to the deceased/his business partner

Witness for the plaintiff

This witness said that he owns the motorcycle that the deceased

was involved in an accident with and the witness shown produced

its logbook as an exhibit. He was issued with a jacket and helmet

upon buying the motorcycle. He also produced a certificate of

insurance showing he had employed David Mbugua, the deceased as

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driver. He was to receive K.shs 1,000.00/= daily from the

deceased and therein give the deceased K.shs. 700.00/=

There was no cross examination of this witness.

WITNESS 3: George kanyuki

POSITION: Eye witness

Witness for the plaintiff

George kanyuki an eye witness and a mechanic claimed that the

accident occurred while vehicles were queuing at a roundabout.

All vehicles stopped including the motorcycle. The motorcycle was

hit from behind causing the accident. George Kanyuki and a Good

Samaritan took the deceased to hospital. He further claimed he

was one passenger contradicting the prosecutor.

CROSS EXAMINATION

1. The witness claims the lady broke a leg and the car was RAV4

model.

2. The police investigation showed that he was carrying two

passengers.

The case adjourned till 24th July 2014.

4. SAMUEL BUSIENEI VERSUS LYNNET CATER

13

CASE NUMBER 88/13

YEAR 2013

PARTIES TO SUIT SAMUEL BUSIENEI….PLAINTIFF

LYNNET CATER…DEFENDANT



DATE OF PROCEEDINGS

10TH JUNE 2014

This matter came up for mentioning to be granted a hearing date.


The plaintiff, Samuel Businei was going home from work and while

crossing the road as he was pushing his bicycle at about 5pm, he

was hit by a car and got injured on his right foot. Some

witnesses took him to valley road hospital where he paid K.shs.

5,000.00/=

He is seeking damages incurred by the accident, this including

compensation for the hospital bill, legal fees as well as general

damages.

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The defense claimed that the plaintiff crossed the highway at

7:50 pm and raised the question as to where was he for the

unaccounted three hours.

The defense claims the vehicle was indeed overtaking and the

lights were own. The plaintiff did not put on illuminating

jackets and even after seeing the lights went on to cross the

road.

On the hand the plaintiff did not see the registration number. He

received the information from a witness not before the court.

The hearing date was set on 22nd June 2014.

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5,ERIC KARANJA VERSUS SAMUEL GITHINJI

CASE NUMBER 123/13YEAR 2013

PARTIES TO SUIT ERIC KARANJA ….PLAINTIFF

SAMUEL GITHINJI...DEFENDANT



DATE OF PROCEEDINGS

20TH JUNE 2014

This matter came up for mentioning to be granted a hearing date.


Eric Karanja, the plaintiff is a business man owning a whole sale

in Nakuru town. The defendant agreed to sell land to him for

k.shs. 7,200,000.00/=. He deposited k.shs. 5,000,000.00/=. The

Sale agreement was drafted by KONYI NGURE & COMPANY ADVOCATES.

The plot number 10/924B Nakuru municipality. The defendant

claimed that the original land title deed was at the ministry of

lands.

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It was later discovered that the title deed was falsified and is

suing for the recovery of the k.shs. 5,000,000.00/=

The case is to be heard on 4th July 2014

1B. CRIMINAL CASES1, REPUBLIC VERSUS BENSON KARIUKI & PRISCILLA

NDUTA


PARTIES TO SUIT BENSON KARIUKI…ACCUSEDPRISCILLA NDUTA…ACCUSED

NAME OF PRESIDINGMAGISTRATE

HON. L. KOMINGOI

DATE OF PROCEEDINGS

27TH MAY 2014

CHARGE

STEALING BY DIRECTIONS OF COMPANY C/S 282 THE PENAL CODE

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PARTICULARS OF THE OFFENCE

By virtue of being a director of Crop King Fish Foods ltd, stole

K.shs. 1,960,000.00/=

IN COURT

WITNESS: James Gachoka

POSITION: Director Crop King Fish Foods ltd

The complainant

Witness for the prosecution

This witness stated that he met the 1st accused in 2009 through

mutual acquaintances. They started doing a fish farming and fish

feeds project together with another person, one Mr. Peter Hewit.

In the process of doing business, they met one Mr. Joe Mwangi and

together they formed the business crop King Fish hatchery.

With time, they realized the benefits of having a company rather

than a business association, hence they decided to register the

name Crop King Fish Foods ltd. There were some delays in getting

the certificate of incorporation hence they decided to open a

bank account with NIC Bank using their business name Crop King

Fish Hatchery, through which they received cheques from fish

farmers.

The government was one of their company’s clients. On one

occasion, they received a cheque from the government with the

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name Crop King Fish feeds and the bank refused to cash the cheque

since that wasn’t the name of their account, they were therefore

advised to register the name Crop King Fish Feeds and open

another account using that business name, then they could cash

the cheque. They opened another account with NIC Bank as advised.

By then their association had grown, therefore they decided to

split the roles between the three partners.Mr. Joe Mwangi was in

charge of finances. Mr. Benson(the accused) was in charge of

marketing and customer relations. Mr. James Gachoka was in charge

of operations. Mr. John Hewit was in charge of production. By

then the accused had been given money amounting to

K.Shs.27,000,000.00/= as operation costs, to which he hadn’t

accounted for. This caused them to have quarrels with Mr. Joe

Mwangi, resulting to Mr. Joe Mwangi’s decision to leave the

company. The role of finance was taken over by Mr. John Hewit.

Wrangles within the management, specifically due to the 1st

accused misuse of money led to a temporary halt in the company’s

proceedings. During this time, the 1st accused applied for their

bank accounts in NIC bank to be frozen but the application was

denied because that procedure need the consent of all the

signatories of that account. This prompted Mr. Gachoka and Mr.

Hewit to empty the funds in the said accounts into a joint

account that they opened in both their names and they severed

interaction with the 1st accused.

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While informing their clients of the change in names of the

account they were supposed to draw cheques to, they discovered

that there was a third account in Equity Bank where their clients

had been drawing their payment cheques to. The account’s name was

Crop King Fish feed ltd, with the 1st and 2nd accused being

directors of the company. The 2nd accused is the wife to the 1st

accused. Through a warrant, Mr. Gachoka received the statement of

this account, which revealed that a sum of K.Shs. 1,960,000.00/=

had been deposited into this account and part of this money had

been used to order for an extruder from China, similar to the one

the company used.

Mr. Gachoka instigated proceedings against the 1st and 2nd accused

both in criminal and in civil court.

The case was adjourned for cross examination of this witness.

2. REPUBLIC VERSUS ALEX MAKORI


PARTIES TO SUIT ALEX MAKORI OCHAKO……………..ACCUSED


HON. L. KOMINGOI

DATE OF 28TH MAY 2014

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PROCEEDINGS

CHARGE

ROBBERY WITH VIOLENCE C/S 296 OF THE PENAL CODE


ALEX MAKORI ON THE 14TH DAY OF FEBRUARY 2014 IN KIAMUNYI WITHIN

NAKURU COUNTY TOGETHER WITH OTHER PERSONS ROBBED DAVID GACHANJA

OF A RADIO VALUED AT KSH. 6000 AND KSHS. 2000.

SUMMRY FACTS OF THE CASE

On the night of February 14th 2014, persons unknown broke into

the house of Mr. David Gachanja. He was in the house with his

wife alone. Upon hearing disturbances, the victim went into the

living room where he met the robbers. One of the robbers attacked

him with a panga he had. At this point, the wife realized what

was going on therefore she raised an alarm, which attracted the

attention of the neighbors. This scared the perpetrators, causing

them to rush off the scene leaving behind a marvin, a jacket and

the panga used to slash the victim. The victim was then rushed to

hospital.

WITNESS: Sos-Peter Kipkertich

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POSITION: Investigating officer


On the night of 14th February 2014, the witness and another

officer were carrying out a patrol when they had an alarm raised,

emanating from the house of the victim. They quickly rushed to

the scene where they found a pool of blood in the living room and

a panga, The door of the house was broken and the living room

looked like it had been ransacked. There was also a jacket and a

marvin laying on the floor of the living room. The victim had

already been taken to hospital.

They immediately carried out a man hunt for the perpetrators and

received a tip from a boda boda operator who was also the

neighbors of the victims, about the owners of the jacket and

marvin found at the scene of the crime. This bodaboda operator

identified the accused as the owner. He also lived in the

neighborhood. He was then arrested.

CROSS EXAMINATION

The following facts were revealed during cross examination:

1. The police statement made by the IO*1 indicated that they

received a tip off from the public about the owners of the

marvin and the jacket, instead of specifically saying that

the bodaboda operator was the identifier.

1 Investigating officer

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2. In the report, the IO stated that the station received a

call to go to the victim’s house yet his testimony stated

that the alarm raised from the house during his patrol, is

what attracted him to the scene of the crime.

3. Upon arrest of the accused person, the IO didn’t conduct any

further investigation.

4. The IO participated in the identification parade, contrary

to procedure.

WITNESS: Corp. Lucy Mwendia

POSITION: Officer carrying out the parade


In her statement, the witness said that in the process of

carrying out the identification parade, she looked for passers-by

in the street and also got some people from the remand to form

the lineup. After the lineup was formed, she asked the accused if

he had any problems with the formation and he complained about

the height of the parade members. The officer then placed him in

between members who were closest in height to the accused.

The victim positively identified the accused as the perpetrator,

after which, he was arrested and charged.

CROSS EXAMINATION

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In the cross examination, various discrepancies with the

identification parade were discovered. These are such as:

1. The form filled for the ID parade was incomplete, with

fundamental sections being left blank.

2. The IO was present during carrying out of the parade,

contrary to procedure.

3. The accused wasn’t given a chance to choose parade members

for himself, as procedure dictates.

4. The accused wasn’t informed that he had the right to have

two members of his own choice, to be present when the parade

is being carried out, as procedure dictates.

The prosecution filed for a summary judgment seeing as they had

no case to answer.

The case was adjourned.

3. REPUBLIC VERSUS BOB OPIYO OYUGI


PARTIES TO SUIT BOB OPIYO OYUGI....ACCUSED


HON. L. KOMINGOI

24

DATE OF PROCEEDINGS

27TH MAY 2014

25

CHARGE

STALING C/S 268 AND 275 OF THE PENAL CODE


BOB OPIYO ON THE 7TH DAY OF MARCH 2014 IN NAKURU COUNTY STOLE AMOBILE PHONE VALUED AT KSH. 8000, THE PROPERTY OF DOROTHYANYANGO.

WITNESS: Dorothy Anyango

POSITION: Victim


The victim works for Britam Insurance Nakuru. On the 7th March

2014, the accused walked into the offices of Britam Insurance in

Nakuru, claiming to apply for insurance for his three children.

He claimed to be an officer in the army.

To apply or insurance, a deposit is required and the accused said

that a friend of his was the one coming with the money, therefore

they wait for him. By then it was well over lunch hour so the

accused offered to take the victim for lunch in the prestigious

Merika Hotel in Nakuru town. Together they raked up a bill of

K.shs.5150.00/=. The victim raised concerns that she had to go

back to the office since lunch hour had passed and the accused

friend hadn’t shown up yet.

The accused claimed that his phone had gone off therefore

borrowed the victim’s phone to call his friend. After having a

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conversation on phone, the accused said that his friend was in

the parking lot and that he should go and meet him there and show

them to where he and the victim were seated. He requested to go

with the victim’s phone so that he can communicate with his

friend. The victim did not object.

The accused left. Fifteen minutes passed and the accused hadn’t

come back and the victim grew anxious about returning to the

office. She borrowed a phone from one of the waiters in Merika

Hotel and called her phone only to realize that I was off. It was

then that she knew she had been conned. She cleared the bill for

the hotel and immediately reported the matter to the police.

The police later arrested the accused.

4. REPUBLIC VERSUS PETER MAINA


PARTIES TO SUIT PETER MAINA....ACCUSED


HON. L. KOMINGOI

DATE OF PROCEEDINGS

29TH MAY 2014

27

CHARGE

FORGERY C/S350 PENAL CODE

IN COURT

The prosecution filed for an adjournment because

1. They hadn’t received the police file yet

2. There were no witnesses filed in the report, therefore they

had no witnesses to present in court

The accused claimed that the prosecution has always been filing

for an adjournment and it has been well over a year since the

case was heard. It was unfair, prejudicial and costly to the

accused to keep on having the case adjourned. He therefore asked

for the court to mitigate on his behalf.

Seeing as the last adjournment had already been granted, the

court declined the application, thereby instructing the

prosecutor to proceed with the case.

The prosecution then withdrew the case according to s. 87(a) of

the Criminal procedure code

The case was dismissed.

5. REPUBLIC VERSUS ONESMUS MUTUA


YEAR 2014

PARTIES TO SUIT ONESMUS MUTUA....ACCUSED


HON. L. KOMINGOI

DATE OF PROCEEDINGS

29TH MAY 2014

CHARGE

IMPROPER USE OF A MOBILE PHONE C/S 29(A) THE CENYA COMMUNICATIONS

ACT 2004.

PARTICULARS OF THE OFENCE

THE ACCUSED SENT AN ABUSIVE MESSAGE TO JOYCE MBONE AND ANOTHER

IN COURT

This case was coming up for arraignment.

The accused pleaded guilty to sending a message from his phone to

two other mobile phones(for the complainants)

The prosecution produced the three phones, one for the accused

and two for the complainants, as exhibits. The presiding

magistrate stated that the phones were irrelevant as they

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required the transcript of the messages sent but not the phones

themselves.

The magistrate instructed the prosecution to get a transcript

from safaricom and to return the hones to their owners.

The case was adjourned.

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REFLECTIVE/ANALYTICAL ASSIGNMENT

QUESTION 2A: OBSERVATIONS OF THE COURT

The image of the court approached from a theoretical perspective

can be considered a misrepresentation of sorts from the actual

image and existence of the court itself. This is because the

image of the court according to the lessons covered in class and

other relevant influences, depicts a standard view of the court,

in the sense that the description of the functions and

proceedings of the court are represented in their pure form, that

is, without including the external and uncontrollable human

influences that significantly impact the court and its

proceedings.

To put it simply, my perception of the court was like that which

is depicted from substantive courses like The law of Evidence and

Sale of Goods, also the media plays a significant role in

developing my perception. From all these sources, the process of

the legal system is primarily centered on the carriage of justice

which principles such as the Oxygen principle2, the rules stated

in the units covered in coursework and basically, the pure

carriage of justice to be strictly adhered to. In practice, the

situation is completely different. This is because factors such

as backlog of cases and nature of the suit come into play and the

court processes are significantly altered in the negative

2 S[1A(1)] Civil Procedure Act cap. 21 Laws of Kenya

31

unfortunately. The important rules such as the rules of

examination of witnesses3 are rules which seem to be good on

paper, but, in practice, especially in the lower courts, these

and other rules seem to be thrown out the window and the party

carrying out the examination carries it as they see fit. These

and other reasons have significantly altered my perception of the

court. Before the clinical attachment, I placed the courts on a

high pedestal as a means to ensure justice is appropriately

carried out but after completion of this assignment the court

system is one of good intentions but of wanting execution,

riddled with irregularities and flaws that require fixing.

From the judiciary staff, to the lawyers, up to the judge who is

head of station, each party taking part in the court proceedings

is responsible for its successes and failures. In my opinion, the

parties who are the biggest players are the lawyers, given that

ours is an adversarial legal system.

During my time I have seen all caliber of lawyers. The most are

those whose primary intention is receiving instructions,

sometimes to the expense of the case they are handling. There are

those who their knowledge of the law is questionable: on two

instances the presiding judge has directed counsel to refer to

their books because what they were stating was in fact the

opposite of what the law states. Also a new idea has been planted

in my head known as holding brief. While this idea has its

merits, its cons largely outweigh its pros. This is because, such3 Chapter V The Evidence Act cap. 80 Laws of Kenya

32

arrangements are made a few hours before the case is supposed to

appear before the court and with such short time it is

practically impossible to adequately represent the needs of the

client for the purposes of the case. In most cases when a lawyer

holds brief for another, the end game is to seek adjournment,

which only adds to the backlog of cases. Another significant

class of lawyering to be considered is the prosecution. To be

bland, prosecution is horrible and needs a major overhaul. The

prosecutors I came across both police prosecutors and state

counsel, are detached from their cases, unmotivated and sometimes

not serious with their jobs. I have witnessed several cases which

have been withdrawn because of unpreparedness of the prosecution.

Not all hope is lost because, though they are the smallest group,

there are those lawyers who are serious and dedicated to their

job, whose main priority is their client and who’ll do their best

to ensure justice.

When it comes to the magistrates and judges, my perception of

them and the reality is somewhat similar. In my opinion, in

carrying out their duties, they’re efficient as they can be.

Given that ours is an adversarial system and theirs is a role of

an umpire, their control over the cases is somewhat limited and

with this limited control, they maximize their influence for the

benefit of the court itself. However, it is worth mentioning that

the load of cases they hale daily ranges between ten to twenty

cases, which makes it impossible for them to give their undivided

attention to each case during its time and this may be

33

detrimental to the parties to the case. Also the magistrates and

judges sometimes let the lawyers get away with some procedural

errors which may seem insignificant but may be deemed to be

unjust to the parties of the suit

As for the parties to the case and the witnesses, the element

that rings most is vast un-informedness of the law and their

rights. An instance is accused persons who have been assigned to

state counsel. Some of these accused persons wait up to a whole

year for their case to be heard due to the continuous

adjournments by the lawyers. Some of these accused persons never

even get to meet their counsel until they’re before the court.

Such instances make me question whether the state counsel has

even gotten to hear the accused side of the story which is in

direct contravention of the rule audi alteram partem used to refer

to the principle that no person should be judged without a fair

hearing in which each party is given the opportunity to respond

to the evidence against them.4 As for the witnesses fundamental

principles of the Law of Evidence such as S 160 of The Evidence

Act5 directs the court to forbid any question which appears to be

intended to insult or annoy or which, though proper in itself

appears to the court to be needlessly offensive in form. In

practice, during cross-examination this rule has been grossly

violated, the counsel for the party which called the witness

doesn’t raise an objection and the magistrate doesn’t put a stop

to such a line of questioning4 ^ audi alteram partem’s entry in the duhaime.org legal dictionary5 Cap.80 Laws of Kenya

34

In general, the legal system is one that needs a major overhaul.

The registries in particular are very disorganized and the files

used are old and prone to wear and tear easily therefore they

look unpresentable. These and other faults make it easy for files

to disappear, either unintentionally or intentionally through

corrupt channels. Another important fact to note is that there is

a major disconnect between the parties tasked with the carriage

of justice. One excuse that prosecutors are fond of using is that

they haven’t received the police file yet, even for police

stations which are adjacent to the courtroom. Sometimes accused

persons in custody aren’t brought to court on the day their case

is being heard, or are taken to the wrong courtroom or accused

persons are brought to court on a day which they do not have a

hearing. There are also instances where the files aren’t present

with the court clerk when it’s time for the case to be heard. All

these examples indicate the lack of synchrony between the police,

the judiciary staff, the wardens and the court clerks

representing their courtrooms.

In conclusion, though the legal system does not live to its

standards it is a system which is tasked with a major duty of

being a voice for the aggrieved and more often than not this duty

is successfully performed but there are massive errors that need

to be addressed by the parties responsible otherwise they will

easily get out of hand and taint the whole system irreparably.

The effect of these findings ids that the faith I had in the

system as it being fair, just and equitable, have dwindled

35

significantly because the system has many loopholes, as explored

above, for corruption to seep in and eventually, justice will

shift from those who deserve it, to the highest bidder.

QUESTION 2B

I. AILS OF THE ADMINISTRATION OF JUSTICE IN

KENYA

The ails to the administration of justice, specifically targeted

to the court system and process can be broadly classified into:

F. Backlog of cases in court

G. Irregularities in the court system

H. Lack of knowledge of the law in general

I. Substandard prosecution

J. Lawyers

A. BACKLOG OF CASES IN COURT

The backlog of cases has been a problem encountered by the legal

system since time immemorial. In general, a suit may take roughly

6 months to as long as 10 years for the case to be completed and

judgment to be delivered. The civil suits take longer than the

criminal suits with some of them being as old as thirty-six years

old. The dates in between hearings of a particular case are

between three months to 6 months.

36

Article 50(2) of the constitution of Kenya 2010 grants accused

persons various rights including: a) to be presumed innocent

until the contrary is proved6 and b) to have the trial begin and

conclude without unreasonable delay7. In the light of accused

persons in custody, the cases are taking such a long period of

time to be heard and determined and the law upholds the

presumption of innocence, yet they are being held in custody for

such long periods in conditions similar to those of a prison.

This in a way can be seen to be in direct violation of the

articles stated above. Question is, how can the body charged with

carriage of justice, be itself an agent of the miscarriage of

justice?

Steps have been undertaken to reduce the backlog of cases. In the

year 2012, in an aim to reduce this backlog, the judiciary hired

251 senior staff, set up four new high courts, established two

new magistrate courts and launched a mobile courts initiative for

remote and neglected areas.8

Though this approach is a step in the positive direction, a

vastly ignored area in the step towards reducing the backlog of

cases is that of lawyers. This is important because, at the rate

which lawyers keep on adjourning the cases for flimsy and

virtually avoidable reasons, they continuously add an average of

6 Article 50(2)(a) The constitution of Kenya 20107 Article 50(2)(d) The constitution of Kenya 20108 Ramah “Kenyan chief justice unveils first judicial scorecard” http://sabahionline.com/en_GB/articles/hoa/articles/features/2012/10/22/feature-01

37

four months to the lifespan of the case. Couple that with the

increasing number of cases being newly filed into the system,

then there will a lot of cases to be dealt with by a constant

number of staff.

The backlog can also be faulted on an increase in the crime

rates, thereby causing a proportional increase in the number of

cases being filed in the courts with limited resources. In a

survey carried out between July 2011, based on the seriousness of

crime levels, Kenya placed fourth out of one hundred and thirty

two countries9

The increase in backlog of cases results to a hindrance in the

carrying of justice, which eventually leads to the people losing

faith in the court systems thereby resulting to alternative

dispute resolution methods, which are more often than not,

illegal. An example is the method used by the Sudanese community

of Nakuru is the “an eye for an eye” approach10. This devastating

finding leaves the mind wondering as to how the system charged

with promoting justice can itself be an agent in enhancing unjust

treatment.

B IRREGULARITIES IN THE COURT SYSTEM

From the beginning to the end, the legal system is riddled with

irregularities which are potentially fatal to the administration

9 http://www.nationmaster.com/country-info/stats/Crime/Crime-levels10 3223/13 Republic v Peter Munyok.

38

of justice in Kenya. This is because any irregularity creates a

loophole for corruption to seep in and it is very well known that

corruption is an enemy and the exact opposite of justice.

The registries are haphazard and disorganized, with lightweight

files used for the cases which wear and tear easily thereby

making the misplacement and disappearance of files very easy

thereby very rampant. This then provides a channel for payment of

judiciary staff to make the files “disappear” to the benefit of

the financier, thus occasioning miscarriage onto the other

opposite parties to the suit.

There is a noticeable and virtually destructive disconnect

between the various parties charged with the administration of

justice within the courts. Lack of co-ordination leads to

occurrences like absence of police file in court at the time the

case concerned is to be heard, leading to an adjournment, absence

of the accused in court at the time the case is being heard and

absence of case file the court with which it is being heard in at

the time it is supposed to be heard. At one instance, the judge

ordered an accused person to be taken to Mathari Hospital for

examination and the wardens ended up taking the wrong accused

person.

Another point worth noting is the lack of translators who are

court approved. This leads to halting the court proceedings

against the accused persons until a translator is available.

What’s worse is that the message is lost during the translation

39

because the translator isn’t familiar with some court terms,

thereby the accused may be answering something to which they

hadn’t been asked11 sill on the language issue, it is important

to bring out the instances of Kiswahili proceedings. Lawyers are

very familiar with English proceedings but when it comes to

Kiswahili, they’re not familiar with the legal vocabulary in

Kiswahili yet the irony is, Kiswahili is the most spoken of the

two official languages12. Again, due to translation issues, the

message may be lost In the process of translation.

Al these factors directly and negatively affect the

administration of justice

C. LACK OF KNOWLEDGE OF THE LAW IN GENERAL

This factor can be directly linked to the level of illiteracy in

Kenya. According to the Kenya National Adult Literacy Survey

Report, on average, n average 38.5 per cent of the Kenyan adult

population is illiterate. there are very wide regional

disparities; for example, Nairobi had the highest level of

literacy, 87.1 per cent, compared to North Eastern Province, the

lowest, at 8.0 per cent13 . Being illiterate means incapability

of knowing, understanding and applying the law to relevant

applications. Thus this fact make it easier for the rights of

such individuals to be violated and also increases crime rate

for such a group due to failure to understand the consequences 11 3223/13 Republic v Peter Munyok12 ^Irele 201013 Kenya National Adult Survey Literacy Report http://eldis.org/go/home&id=31868&type=Document#.U-i3FPmSxLY

40

of committing such crimes, which also directly ails the

administration of justice. This is because the commission of the

crime itself is the first contributor of ails to the justice

system.

Aside from the illiterate, another group to be considered is the

literate but those who are unaware of the law. This could be

due to substandard exposure to legal knowledge, it could also be

due to blatant ignorance of knowledge concerning the law. Either

way, this category enhances breakage of the law either by

themselves or other parties towards them due to their

unawareness thereby increasing the number of cases in court when

it’s too late in the game to reverse the occurrences.

The last and most shocking group to consider is those people

within the legal profession who aren’t versant with the law in

itself. In my opinion, this has directly been aided by the over-

crowding of law classes and over intake by some institutions and

also emergence of all manner of institutions offering law

degrees. There is also lack of seriousness among law students.

all these factors are massive contributors towards decrease in

the standard of the quality of education accompanying the

issuance of law degrees. Such parties end up turning to corrupt

means to get income hence contributing to the destruction of

administration of justice.

An important thing to note is law is not a static career, it is

continually evolving, and therefore acquisition of legal

accolades such as degrees and masters isn’t enough to be a good

41

lawyer. This is one of the reasons why bodies such as the Law

Society of Kenya mandate the taking of refresher courses so as

to remain on the roll. However not all advocates take this

seriously hence they look for shortcuts not to attend such

sessions, which results in them being outdated hence

ineffective.

D. PROSECTION

The prosecution in criminal courts, especially the sub-ordinate

courts can be described as wanting at best. The prosecution in

this case refers to not only the representing counsel but every

party involved in the aspect of prosecution from the

investigating officers to even the complainant of a case.

The fate of a criminal case primarily rests with the prosecution.

The principal Semper necessitas probandi incumbit ei qui agit: the necessity of

proof always les with the person who lays the charges14. This therefore

means that since cases can basically be summarized as the art of

proof and disproof, the power to direct the course of proceedings

therefore lies on the prosecution. That being said, if the

prosecution’s case is substandard, the chances of that case succeeding

in their favour are slim to none.

Some investigations carried out are shallow and not thorough which

leads to adduction of evidence that doesn’t meet the “beyond 14 Transnational principle of law: Trans-Lex.org

42

reasonable doubt” standard of proof, thereby proving to have wasted

the court’s valuable time and leading to the miscarriage of justice.

In other cases it may lead to arrest and arraignment of the wrong

accused person which may either waste the court’s time or lead to the

conviction of an innocent person. Another thing to note is that the

framing of charges by the officers is in most cases faulty, which

makes the case liable for dismissal.

Some complainants use the legal system as a method to satisfy their

own personal evil intentions rather than for the purpose of seeking

justice. Some complainants accuse their adversaries, not because they

have wronged them, but to satisfy their own vendetta.

The legal representation for prosecution is bad. First of all, police

prosecution, in my opinion, is a thing of the past. This is because,

they lack the knowledge and technical know-how when it comes to legal

proceedings. Therefore when counsel with legal training counter

examines the evidence produced by police prosecution, they

successfully apply legal skills to quash such evidence, which, if the

evidence in question had been framed in the proper legal way, it would

have been admissible.

E. LAWYERS

The main problem of lawyers is that they’re significant contributors

to the backlog of cases. This is because, upon clear consideration it

becomes apparent that it is within the lawyer’s best financial

interests that the case in question goes on for a longer period that

it ideally should.

Such tactics include:

43

i. In civil cases filing the pleadings as late as possible

ii. Unnecessarily elongating the stage of pleadings in civil

cases by making many amendments to the said pleadings

resulting to more mention dates given to the case, which

elongates its lifespan

iii. Coming to court unprepared e.g. coming without the necessary

documents thereby resulting to being grant an adjournment

iv. The holding brief phenomenon

It is important to state that the permissive nature of the court

in practice is what has let such tricks have an uncontrolled

magnitude to the court proceedings. This gray area should be

fixed sooner rather than later.

44

II. POSSIBLE REFORMS IN THE KENYA CRIMINAL

JUSTICE SYSTEM

Some of the reforms which can be undertaken to fix the problems

of the criminal justice system include:

E. Fixing the loopholes in the criminal justice system

F. Undertake measures to reduce backlog of cases

G. Conducting a countrywide mission to educate the people of

Kenya about the law

H. Introduction of court stenographers/reporters to Kenyan

courts

A. FIXING THE LOOPHOLES IN THE CRIMINAL JUSTICE SYSTEM

As mentioned earlier in this document, any loophole in the

criminal justice system is an avenue for corruption to be

enhanced. Fixing these loopholes will have the effect of having a

clean, just, fair and equitable criminal justice system. Other

than reducing corruption, such measures aim to restore faith in

the court system.

45

In my opinion, the first step to reduce corruption is by reducingthe financial incentive that aids corruption. This may achieved by upgrading the salaries of judicial officers. Speaking during the launch of report on the state of judiciary and administrationof Justice, court president and chief Justice Mutunga said the money currently allocated to the Judiciary is way below the internationally agreed benchmark of 2.5 per cent of the National budget. The CJ stated that additional allocation of funds to the Judiciary would help the institution fully meet the necessary transformation required by the constitution15. In the 2014/2015 national budget released in June 2014, the judiciary was granted 18.5 billion shillings to support implementation of the constitution. A further 1.0 billion shillings was released for civil service reforms towards the same goal.16 The finances to achieve the goal of upgrading salaries can successfully be gotten from the above mentioned funds.

Another step towards fixing the loopholes is to fine tune the relations between the various disciplines partaking in the criminal justice system. These are a) The prisons service b) The police service c) the judiciary staff d) state counsel and e) thepresiding officers i.e. judges and magistrates. In my opinion thebest approach that could be taken to achieve this goal is to establish an oversight authority solely tasked to ensure that thecourt processes run smoothly. In my opinion such a function fallssquarely on the office of the registrar. a system of accountability should be implemented in order to avoid malpractice

Another important department that needs to be established is the department of translations. this department should cater for all the languages within the region, and the number of specialist 15 http://www.ghettoradio.co.ke/mutunga-says-budget-allocation-to-judiciary-is-too-little/16 The budget summary for the fiscal 2014/2015 file:///C:/Users/Sandra/Downloads/budget%20summary-%20fy%202014-15.pdf

46

translators should be in direct proportion, to the size of the community speaking that language. These translators may be paid on a commission basis. Notification should be communicated in advance as to when their services are required in court. This incentive goes hand in hand with the country’s Economic Strategy for Wealth and Employment Creation17, a close relation to the infamous vision 2030.

B. UNDERTAKE MEASURES TO REDUCE THE BACKLOG OF CASES

Under the reign of the current chief justice, Dr. Willy Mutunga,

this goal has been amongst his main approaches in revolutionizing

the judicial system. Below is an excerpt from an article written

in 2012 revealed on October 19th 2012 on the State of the

Judiciary Report covering Dr. Mutunga’s first year in office:

“Mutunga said in the past year the judiciary recorded tremendous progress,finalizing 421,827 of the 428,827 cases logged between June 2011 and June2012.He said the judiciary hired 251 senior staff, set up four new high courts,established two new magistrate courts and launched a mobile courtsinitiative for remote and neglected areas."During the period under review, thejustice-to-population ratio was one judge for every 500,000 Kenyans and onemagistrate for every 90,000," Mutunga said. "Emerging from such a complexbackground, it is little wonder that one of the commonest indictments of thejudiciary has been its inability to dispense justice without delay. Whateverreasons for delays in the past, the constitution now demands that justice shallnot be delayed."To end delays and reduce case backlogs, the judiciary willembrace technology to help classify cases for expeditious ruling, Mutungasaid, adding that the judiciary also aspires to establish at least one high

17 Ministry of State, Planning and National Development and Vision 2030(10th June 2008)”launching of Kenya vision 2030 speech by His Excellency Hon. Mwai Kibaki CGH MP”| Ministry of State, Planning and National Development and Vision 2030(10th June 2008

47

court in all 47 counties over the next 10 years and hire an additional 147magistrates to address the staff shortage.”18

Such measures which have either already been undertaken or are incurrently in the process of being undertaken are:

Hiring of new senior staff e.g. judges and magistrates Setting up of high courts in every country in the next ten

years(counted from the year 2012) Launching of a mobile courts initiative for remote and

neglected areas e.g. the mobile traffic courts Embracing technology that’ll help classify cases for

expeditious ruling

Another approach towards the reducing of backlog of cases isencouraging Alternative Dispute Resolution (ADR) mechanisms,aimed to reduce the number of new cases being filed in court.This entails educating the people about such mechanisms and theiradvantage over filing cases in court.

Also to be implemented is imposition of strict rules andregulations to the advocates against employing measures seekingto unnecessarily elongate the case duration within the court.Such measures include putting notorious advocates up for reviewfor disbarment due to their conduct.

C. CONDUCTING A COUNTRYWIDE MISSION TO EDUCATE THE PEOPLE OF

KENYA ABOUT THE LAW

As per the indications stated above in this document, there is aclear indication that a huge percentage of the country’spopulation is ignorant to the law. This ignorance has the effect

18 Ramah “Kenyan chief justice unveils first judicial scorecard” http://sabahionline.com/en_GB/articles/hoa/articles/features/2012/10/22/feature-01

48

of increasing crime rates and instances of injustices occasionedtowards the people of this country.

In my opinion, a more effective way of reforming the Kenyancriminal Justice in Kenya is to attack it at its roots, that is,reduce the rate of crimes, thereby enhancing the efficiency ofthe criminal justice system. The most effective tool to reducethe rate of crime and injustice is to thoroughly educate thepeople about the law and their rights in general.

The first step is to introduce the subject known as CivicEducation to the curriculum as early as in Primary School.Countries with impressive crime rate statistics such as Englandand Wales19 have this subject in their curriculums, which willaid in enhancing knowledge to the people about basics of the lawthat every individual should be aware about. The key concepts ofsuch education should include:

1.Democracy

2. Diversity

3. Globalization

4. Sustainable Development

5. Empire, Imperialism, Power

6. Prejudice, Discrimination,Racism

7. Migration

8. Identity/Diversity

9. Multiple Perspectives

10. Patriotism andCosmopolitanism

A massive outreach programme should also be undertaken to informthe people, especially in the rural areas, about the law ingeneral and other topics such as that of ADR mechanisms.

Lastly every advocate should take it upon themselves tofaithfully attend the courses mandated by the Law Society of19 Comparing International Criminal Justice systems http://www.nao.org.uk/wp-content/uploads/2012/03/NAO_Briefing_Comparing_International_Criminal_Justice.pdf

49

Kenya as this is a duty they owe to themselves, their clients andthe country they so willingly serve.

D. INTRODUCTION OF COURT STENOGRAPHERS/REPORTERS TO KENYAN COURTS

A court reporter is a person whose occupation is to transcribespoken or recorded speech into written form using shorthand,machines or voice writing equipment to produce officialtranscripts of court hearings.

Currently, the duty to take official note of the courtproceedings is being undertaken by the presiding judge ormagistrate to that case. There are many disadvantages to thatarrangement. These are such as:

i. The proceedings go slow. This is because you may find thatat any given point, the party speaking has to stop or goslow in order to wait for the magistrate to finish writingwhat has already been said.

ii. The notes taken will not be accurate. It is practicallyimpossible for the presiding officer to deliberate whilsttaking notes and managing the court room all at the sametime. All of these functions suffer significantly due tobeing performed at the same time

iii. The act of taking notes significantly hinders thejudges’/magistrates’ roles to deliberate on the matterspresented before them. This is because the concentrationgiven to such matters isn’t the full concentration.

iv. Most of the judges and magistrates have illegiblehandwriting.

On the other hand, introduction of the art of stenography hasmany advantages:

50

i. It will lead to the production of official transcripts ofcourt proceedings. These transcripts will be thorough anddetailed records which will make appeals go smoother andreference to cases will be easy, thereby enhancing a wholeefficiency to the justice system.

ii. It will ease the duties of the presiding judges andmagistrates such that they can now focus on their primaryduty: deliberation and management of their courtrooms.

iii. It will decrease the level of unskilled labour within theKenyan economy

iv. It will lead to creation of jobs, in line with vision 203020

It typically takes anywhere from two to four years to learn thebasic skills to become a stenotype court reporter. Such a skillcan be taught to either the court clerks or the judges’secretaries who can undertake such duties, so as to save onfunds.

20 Ministry of State, Planning and National Development and Vision 2030(10th June 2008)”launching of Kenya vision 2030 speech by His Excellency Hon. Mwai Kibaki CGH MP”| Ministry of State, Planning and National Development and Vision 2030(10th June 2008

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REFERENCES1. The constitution of Kenya 20102. The Evidence Act cap. 80 The laws of Kenya3. The budget summary for the fiscal 2014/2015

file:///C:/Users/Sandra/Downloads/budget%20summary-%20fy%202014-15.pdf

4. Ramah “Kenyan chief justice unveils first judicial scorecard” http://sabahionline.com/en_GB/articles/hoa/articles/features/2012/10/22/feature-01

5. Comparing International Criminal Justice systemshttp://www.nao.org.uk/wpcontent/uploads/2012/03/NAO_Briefing_Comparing_International_Criminal_Justice.pdf

6. Ministry of State, Planning and National Development and Vision 2030(10th June 2008)”launching of Kenya vision 2030 speech by His Excellency Hon. Mwai Kibaki CGH MP”| Ministry of State, Planning and National Development and Vision 2030(10th June 2008

52

http://www.nao.org.uk/wpcontent/uploads/2012/03/NAO_Briefing_Comparing_International_Criminal_Justice.pdf

http://www.nao.org.uk/wpcontent/uploads/2012/03/NAO_Briefing_Comparing_International_Criminal_Justice.pdf

../../../C:/Users/Sandra/Downloads/budget%20summary-%20fy%202014-15.pdf

../../../C:/Users/Sandra/Downloads/budget%20summary-%20fy%202014-15.pdf

UNIVERSITY OF NAIROBI SCHOOL OF LAW CLINICAL ASSIGNMENT REPORT (MAY 2014-JULY 2014) NAME Mosoti Sandra Nyanchama ADMISSION NUMBER G34/54074/2012 MODULE II evening COURT STATION NAKURU

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