Kenya Insights

Tag: Court of appeal

  • Pastor Ezekiel’s Church Facing Imminent Closure

    Pastor Ezekiel’s Church Facing Imminent Closure

    The New Life Prayer Centre, a popular church owned by Pastor Ezekiel Odero, is now facing imminent closure after the Court of Appeal dismissed his attempt to prevent the government from interfering with the church’s operations.

    The church had previously been among several others that were shut down last year after their licenses were canceled due to improper registration. Although the church obtained temporary orders to halt the closure while the case was being heard, the High Court ultimately dismissed the case. Pastor Odero then appealed to the Court of Appeal, which has now also dismissed his appeal, leaving no legal barriers in place to prevent the church’s closure.

    The three-judge bench, consisting of Justices Daniel Musinga, Kathurima Minoti, and M. Gachoka, declined to reinstate the church’s license. They ruled that Pastor Odero had failed to exhaust all available administrative remedies before seeking judicial intervention. Specifically, the court agreed with Justice Jairus Ngaah’s earlier decision that Odero should have first appealed to the Cabinet Secretary before approaching the court.

    “By dint of the above provision, NPCC was obliged to first appeal to the Cabinet Secretary, and if it was still aggrieved by the decision of the Cabinet Secretary, lodge a second appeal to the High Court,” the ruling stated.

    The judges noted that New Life Prayer Centre did not apply for exemption under the Fair Administrative Action Act, nor did it present any exceptional circumstances before the High Court to justify bypassing the prescribed dispute resolution mechanisms.

    “In light of the consistent decisions of this Court and the Supreme Court that a party must first invoke the dispute resolution mechanisms provided by the law before resorting to the High Court or courts of equal status, we are satisfied that the intended appeal is not arguable,” the court ruled.

    The church had argued that without an injunction, it would be forced to close down and wind up its projects, thereby violating its members’ rights to freedom of association and worship. However, the court noted that instead of following the prescribed legal processes, New Life had directly approached the High Court on August 26, 2023, seeking to quash the decision of the Registrar of Societies to cancel its registration.

    With the dismissal of the appeal, New Life Prayer Centre now faces the possibility of permanent closure, marking a significant setback for Pastor Ezekiel Odero and his congregation.

  • ‪Jowie Appeals His Death Sentence ‬

    ‪Jowie Appeals His Death Sentence ‬

    Murder convict Joseph Irungu alias Jowie is putting up a fight to overturn his death sentence in the murder of businesswoman Monica Kimani.

    Justice Grace Nzioka on March 24, sentenced Jowie to death after finding him guilty of the murder.

    Jowie has now filed a notice of appeal at the Court of Appeal in a bid to overturn his conviction and sentencing that he says infringed his rights and that it’s a degrading form of punishment.

    In his application before the Milimani Law Courts, Jowie says the mode in which the death penalty should be enforced is torturous, cruel and inhumane.

    He says it is prohibited under article 25 of the constitution which spells out the fundamental rights and freedoms that may not be limited.

    These include freedom from torture or degrading punishment, freedom from slavery, and right to fair trial.

    Jowie claims that his sentencing over the Monica Kimani murder was in violation of his non-derogable right to freedom from torture and cruel, inhuman punishment and wants the court to declare as so.

    He has sued the Attorney General in his petition.

    In 2017, the Supreme Court declared the mandatory death sentence unconstitutional but did not outlaw it.

    The ruling gave judge’s discretion to decide whether to hand down the death sentence or life imprisonment.

    In light of this, Jowie wants the court to declare that section 379 (4) of the criminal procedure code is unconstitutional as it denies persons sentenced to death the right to bail pending appeal.

    This is the second legal battle Jowie has launched against the state in a bid to secure early freedom, following another that seeks to overturn the death sentence imposed on him by the High Court last month.

    Convicted

    Jowie was sent to the gallows on 13 March this year after being found guilty of killing Ms Kimani in her Limuria garden in Nairobi.

    Judge Grace Nzioka, after analysing the evidence in the case, found that the convict was at the centre of the murder and ruled that he deserved the death penalty.

    The judge found that the convict murdered Ms Kimani in cold blood and left her tied up in a bathtub.

    Evidence such as the burning of the Kanzu, which the convict had put on on the fateful day in an attempt to conceal evidence, was also taken into account.

    The court also relied on the prosecution’s evidence that the deceased did not provoke the convict to justify the attack that left her dead.

    Jowie’s pre-sentence report also conspired against him, describing him as a man of dual personality, leaving the court with limited options in sentencing him to prison.

    The lead investigator – Chief Inspector Maxwell Otieno – had described Jowie as a dangerous person because he was allegedly involved in a fight after being released on bail.

    These factors led the court to sentence Jowie to death.

    But now the convict is not only seeking the repeal of criminal laws that prescribe the death penalty for those convicted of murder, but has also asked for compensation for an alleged violation of his constitutional rights.

    Jowie’s main argument, and the basis of his legal battle with the state, is that the section of the law he is challenging prevents those sentenced to death from seeking bail pending appeal.

  • BBI Appeals: Profiles of the Court of Appeal bench

    BBI Appeals: Profiles of the Court of Appeal bench

    The Court of Appeal of Kenya is established under Article164 of the constitution of Kenya and consists of a number of judges, being not fewer than twelve.

    The Court handles appeals arising over the decisions of the High Court as well as any other court or Tribunal as provided for in Law and comprises a maximum of 30 Judges.

    The judges of the Court of Appeal elect a President from among themselves.

    The Court has been decentralized and currently has a total of six registries namely; Nairobi, Mombasa, Nyeri, Kisumu, Nakuru and Eldoret.

    A seven-judge bench of the Court of Appeal is today (Friday) delivering a ruling on the Building Bridges Initiative (BBI) with all eyes are set on the Court of Appeal President Daniel Musinga, Judges Hannah Okwengu, Patrick Kiage, Fatuma Sichale, Gatembu Kairu, Roselyne Nambuye, and Francis Tuiyot, who are expected to either overturn the high court ruling that stopped the BBI process or uphold it.

    So who are these judges?

    Hon Mr. Justice Daniel Kiio Musinga

    www.judiciary.go.ke www.judiciary.go.ke The Building Bridges Initiative (BBI) Appeals Profiles of the Court of Appeal BenchHon Mr. Justice Daniel Kiio Musinga

    • May 2021 – elected President, Court of Appeal by fellow Judges pursuant to Article 164(2)
    • Fellow of the Chartered Institute of Arbitrators
    • January 2021 – nominated as Chairman, Judiciary Committee on Elections.
    • 2018 to 2021-Chairman, Judiciary Rules Committee
    • December 2012 – appointed Court of Appeal Judge
    • 2013 to 2017-First Chairman, Performance Management and Measurement Steering Committee.
    • 2003 – 2000- appointed Judge of the High Court of Kenya, posted to Nakuru
    • 2003-Member of the Tribunal to investigate conduct of suspended High Court Judges.
    • 2008- 2010-served in the High Court at Kisii.
    • 2011- appointed Presiding Judge, Commercial and Admiralty Division, Nairobi.
    • 2011- honoured by International Commission of Jurists as Jurist of the Year
    • 2010: Honoured by the Law Society of Kenya for Distinguished Service in the Administration of
    • Justice
    • 2000 – 2003 – Chairman, LSK Mombasa Chapter
    • 1991-2003-Founded Musinga and Company Advocates
    • 1988-1991 – legal practice-Gikandi & Company advocates-Mombasa

    Hon. Lady Justice Roselyn Naliaka Nambuye

    • 2012-appointed Judge of the Court of Appeal
    • Currently heads the Court of Appeal in Nairobi, Criminal Division
    • 1991- appointed Chief Magistrate and in the same year elevated to High Court Judge
    • 1988-1990- Principal Magistrate
    • 1982-1986-Deputy Registrar and later Senior Resident Magistrate
    • 1980-joined the Judiciary as District Magistrate Il (Prof)
    • 1979-appointed a District Officer with special magisterial powers
    • Founder member and a Past Chairperson of the Kenya Women Judges Association (KWJA)
    • Holds a Master of Laws Degree (LLM) in Public International Law from the University of Nairobi (2008)
    • Masters Degree in International Conflict Management (MAICM) from the University of Nairobi (2011)
    • Masters Class Certificate in Business Management and Leadership (2017)
    • Honorary Doctorate Degree from the Commonwealth University of Belize through London Graduate School, United Emirates (2017)

    Hon. Lady Justice Hannah Magondi Okwengu

    • 201l-appointed Judge of the Court of Appeal.
    • Currently Head of Civil Division, Court of Appeal.
    • Board Member representing Africa in the International Association of Women Judges.
    • Chairperson of Judicial Committee that developed a Criminal Procedure Bench Book for the Judiciary.
    • 2003 – Appointed Judge of the High Court.
    • 1998 – Assistant Director in charge of Prosecutions in the former Kenya Anti-Corruption Authority.
    • 1998 – Recipient of the LSK Award for Distinguished Service in the Administration of Justice.
    • 1983-Joined Judiciary as Resident Magistrate and rose to Chief Magistrate.
    • Past Chairperson of the International Association of Women Judges (IWAJ}Kenya Chapter.
    • Holds Masters Degree in Law from Queen Mary University of London.
    • Holds Certificate in Management from the University of Bradford-UK.

    Hon. Mr. Justice Patrick Omwenga Kiage

    • 2012-appointed Judge of the Court of Appeal.
    • 2021 – Presiding Judge, Court of Appeal, Kisumu.
    • 2015 – date,Regional Vice President for East, Central and Southern Africa on Commonwealth Magistrates’ and Judges’ Association Council.
    • 2007-Special Prosecuting Counsel and Deputy Director, Public Prosecutions.
    • 2007- 2012 – Lecturer in Law at Catholic University of Eastern Africa ad Kenya School of Law
    • Author of Books: Criminal Procedure and Practice in Kenya and Family Law in Kenya.
    • Over 10 years practice as a criminal defence lawyer.
    • 2001-2007-facilitator and trainer in ADR for KNHRC.
    • 1993-2007-worked with various law firms starting with Kurgat & Associates before moving to Nyachae & Company Advocates and later to Kiage & Company Advocates as Sole Proprietor and later as Senior Partner.
    • Holder of a Masters Degree from New York University majoring in Public Service Law,
    • Comparative Constitutional Law, Comparative Criminal Justice and Human Rights.

    Hon. Mr. Justice Gatembu Kairu, FCIArb

    • 2012- appointed Judge of the Court of Appeal
    • 2009-2012-Proprietor, Arbitration and Mediation Suite.
    • 1990-2012-Lecturer, School of Law, University of Nairobi.
    • 1993-2009-Partner, Kairu & McCourt Advocates.
    • 1987-1993-Associate, Kimani Kairu & Company Advocates.
    • 1985-1987- Legal Assistant, Hamilton Harrison & Mathews Advocates.

     

       Hon. Lady Justice Fatuma Sichale

    • 2012-appointed Judge of the Court of Appeal
    • 2012-short stint as Chairperson of the Communication Appeals Tribunal.
    • Has been associated for long with the fight against corruption.
    • 2004 – 2009 Assistant Director, Legal Services at Kenya Anti-Corruption Commission and later appointed the Deputy Director.
    • 2004-nominated by FIDA(K) to the Board membership of Kenya Anti – Corruption Commission KACC).
    • 2004 – Board Member of the National Anti-Corruption Campaign Steering Committee.
    • 2004 – appointed one of the seven Board members of the then Kenya Anti-Corruption
    • Authority (KACA).
    • Served as a Board Member of Kenya Forest Service.
    • 1987-2004 legal practice.
    • 1984-joined the Judiciary as a District Magistrate II (Prof).
    • She has been a Council member of Law Society of Kenya(LSK}as well as FIDA (K).

    Hon. Mr. Justice Francis Tuiyott

    • 2021-appointed Judge of the Court of Appeal.
    • 201l-appointed Judge of the High Court
    • 2003-2011-legal private practice.
    • 2010-2011-Chairman Sugar Arbitration Tribunal.
    • 1993-2010-Advocate at Nyaundi Tuiyott & Company Advocates
    • 1991-1993- Associate Advocate at AGN Kamau Advocates.
    • Holds a Master of Laws Degree from University of London.
  • Ex-MP’s Appeal On Sh15Million Compensation For Son’s Murder Quashed

    Ex-MP’s Appeal On Sh15Million Compensation For Son’s Murder Quashed

    Last week, Kenya Insights wrote about Dickson Mwangi Munene a Former Police Inspector in Nairobi who had been serving life imprisonment at Kamiti Maximum Prison for the murder of a former MP’s son had his life hopes restored after the High Court quashed his life sentence and ordered him to pay the Ex-MP sh15million for damages he made to the family.

    Dickson Munene Mwangi and Alexander Chepkonga Francis In Kamiti Prison

    Former Gatundu North legislator Patrick Muiruri’s family has lost an appeal contesting the award of Sh15.8 million by the High Court as compensation for the death of their son, who was shot dead by a police officer 10 years ago.

    Muiruri had appealed High Courts decision arguing that the amount offered was too little. His son, James Ng’ang’a Kariuki was shot by a police officer, Dickson Munene, during a brawl in a club in Westlands, Nairobi.

    The late Kariuki, then a 29-year-old lawyer, was a junior lecturer at Sheffield International University, United Kingdom, and had returned home to await graduation after completing his doctorate.

    Two police officers, Dickson Munene Mwangi and Alexander Chepkonga Francis, were tried and convicted for his murder, but Mr Chepkonga was later freed on appeal. The former MP’s family then sued for liability and the matter was settled by consent recorded before the trial judge on April 20, 2016 and liability attached against the Attorney-General.

    They contended that they had invested substantially in their son’s education and emotional support and love in order to see him successfully through his education, stating that his income would have been approximately Sh700,000 per month and with a possible increase in the course of his career.

    Ex-MP Muiruri produced a letter from Nigel D. White, professor of public international law at the University of Nottingham, who had supervised Kariuki’s PhD programme.

    After hearing the case, Hight Court judge Joseph Sergon ordered the government to pay the family a total of Sh15,857,730, comprising Sh100,000 for pain and suffering, Sh200,000 for loss of expectation of life and Sh12 million for loss of dependency. The family was also awarded special damages of Sh1,557,730 and exemplary damages of Sh2,000,000.

    But they were dissatisfied with the award, arguing that it was too low and went to the Court of Appeal to seek a review. At appeal, Justices Daniel Musinga, Gatembu Kairu, and Sankale ole Kantai said there was no doubt that Mr. Kariuki, aged 29 at the time of death, had an illustrious career before him.

    The Appellate Judges stated that besides the letter from Prof White giving a general view of Mr. Kariuki and his future prospects had he continued teaching until retirement, there was no confirmation that he was employed by Sheffield International University. They ruled that the amount given by Justice Sergon was reasonable in the circumstances.

    “We have considered the material available before the judge and have reached the same conclusion the deceased was not employed at the time of death,” they said.

     

  • The Court Has Refused To Admit The Confession Of Julius Wambua Musyoki’s Daughter That She Faked Her Rape

    The Court Has Refused To Admit The Confession Of Julius Wambua Musyoki’s Daughter That She Faked Her Rape

    Justice delayed is as much painful as justice denied. Julias Wambua Musyiki’s appeal evidence against his life imprisonment sentence has been dismissed by the Court of Appeal.

    Wambua had appealed his sentence through his advocates, Cyrus Maweu and Mike Mwema. He said he decided to appeal the case since his daughter, who the inmate was accused of raping, had confessed of lying to the court.

    Wambua’s daughter who was featured in a citizen TVs production, #PrisonDiaries, confessed before cameras alleging that she was forcefully coached by the mother to lie in court that the father had defiled her. She was 10 years as by 2011.

    The Appellate Court head, Justice William Ouko in company of Justice Wanjoru Karanja and Justice Jamila Mohamed dropped the request by Wambua’s legal team to add her daughter’s confession as the evidence in his sentence appeal.

    The Appellate Judges said the period to submit such requests to the court from the convict had already lapsed according to the court-set timelines.

    Wambua’s advocates contended that the court was being unfair to the convict. The advocates said the court was not keen in questioning the prosecution evidence and witnesses.

    Wambuia through his lawyers said that the court never gave him a chance to defend himself despite him willing to pay for all the medical tests and checks. The court convicted Wambua in bad faith because of the alleged crime.

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    Moses Ome’rera, the prosecution lawyer objected the inmates evidence saying that the submission will need to re-open the case with another set of witnesses to recant the testimony in the already closed case.

    Counsel Ome’rera did not disagree with the inconsistency of the dates as claimed by the appellant. He said that Wambua belongs to jail because all the previous testimonies true.

    Wambua is currently serving a life imprisonment sentence at Kamiti maximum security Prison. He was sentenced in 2011.