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ELCDismissedNot stated (plaint dated 6th March 2012; suit concerning LR No. BUKIRA/BUHIRIMONONO/2022)· [2018] KEELC 93 (KLR)

Florence Mumbi Njine v Kefa Oketch Muinde [2018] KEELC 93 (KLR)

Environment and Land Court
14 November 2018
GOG. M. A. Ongondo
956 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court ruled it cannot send a witness to prosecutors itself — anyone suspecting perjury must complain directly to the DPP.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Migori (G. M. A. Ongondo J, 14 November 2018) determines an oral application by counsel for the plaintiff, Florence Mumbi Njine, seeking that the defendant's witness Joseph Chacha Nyamuriba (DW3) be referred to the Office of the Director of Public Prosecutions for alleged forgery, uttering false document and impersonation committed in his testimony. The application was anchored on Sections 4 and 7 of the Penal Code and Section 26 of the ELC Act, with counsel invoking by analogy Section 87(2) of the Elections Act. Counsel for the defendant, Kefa Oketch Muinde, opposed the application as ill informed, an afterthought and intended to intimidate witnesses. The court framed a single issue: whether it could make the orders or reference sought. It held that Section 26 ELC Act did not apply because the matter did not relate to the sittings of the court, and that the court was not an election court for Section 87(2) of the Elections Act. Reviewing DW3's evidence, the judge found no iota of evidence that the alleged offences were notable and, applying the principle in Films Role International Ltd v Cannon Film Sales Ltd that the court should take the lower risk of injustice, declined the reference. Endorsing Alice Mweru Ngai v Kenya Power, the court held that the DPP, empowered under Article 157(4) and independent under Article 157(10) of the Constitution, is the proper constitutional organ, and that counsel was at liberty to lodge a complaint directly with the ODPP. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the ELC may refer a witness to the DPP for investigation of offences allegedly committed in testimony

Holding

No. Section 26 ELC Act applies only to matters relating to the sittings of the court, and Section 87(2) of the Elections Act applies only to election courts; a party is at liberty to lodge a complaint directly with the DPP

Reasoning

The court examined the statutory bases invoked. Section 26 ELC Act was inapplicable as the matter did not relate to the court's sittings, and the court was not an election court for Section 87(2) Elections Act. The DPP, empowered under Article 157(4) and independent under Article 157(10), is the proper organ; counsel may lodge a complaint directly.

p. 1
02

Whether the alleged offences were made out on DW3's evidence to justify a reference

Holding

No. The court found no evidence of the alleged offences and held that making a reference would enhance the risk of injustice, applying the principle in Films Role International Ltd v Cannon Film Sales Ltd

Reasoning

The court reviewed DW3's testimony, noting he admitted recording a statement and knew the offence of impersonation. Applying Hoffman J's principle that the court should take the lower risk of injustice, the judge found no iota of evidence that the offences were notable.

p. 2
03

Standard of proof of fraud in civil cases

Holding

Fraud in civil cases must be proved to a standard higher than a balance of probabilities but not beyond reasonable doubt

Reasoning

Relying on Koinange v Koinange, the court noted the defendant alleged fraud in his counterclaim and that the court was aware of the civil standard of proof of fraud as well as the standard in criminal cases under Section 107 of the Evidence Act. This was obiter context to the application.

p. 2

Legal principles established

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  • Where the law grants jurisdiction to other organs of Government to handle specific grievances, the courts must respect and uphold the law
  • The DPP may direct the Inspector-General of Police to investigate any information or allegation of criminal conduct, and enjoys institutional independence

Court orders

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  1. 1.The oral application seeking referral of DW3 (Joseph Chacha Nyamuriba) to the Office of the Director of Public Prosecutions is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Penal Code (Cap 63, Laws of Kenya)Sections 4 and 7
  • Environment and Land Court Act, 2015Section 26
  • Elections ActSection 87(2)
  • Evidence Act (Cap 80)Section 107
  • Constitution of Kenya, 2010Articles 157(4) and 157(10)

Cases cited (3)

  • Films Role International Ltd –v- Cannon Film Sales Ltd
    (1986) ALL ER 772
  • Koinange & other –v- Koinange
    (1986) KLR 23
  • Alice Mweru Ngai –v- Kenya Power and Lighting Company Ltd
    (2015) e KLR
Jurisdiction invoked
Environment and Land Court Act, 2015 (counsel invoked Sections 4 and 7 of the Penal Code and Section 26 of the ELC Act); Constitution of Kenya, 2010 Articles 157(4) and 157(10)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Florence Mumbi Njine v Kefa Oketch Muinde [2018] KEELC 93 (KLR)", Case Analysis (2018). Not stated (plaint dated 6th March 2012; suit concerning LR No. BUKIRA/BUHIRIMONONO/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/93/eng@2018-11-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.