Q4-2015-CRIMINAL LITIGATION

Wambira Kamau decided to pay a surprise visit to her boyfriend Musyoka Kasi at his house in Ngong. On arrival she noticed a pink Toyota Vitz parked next to his Subaru. Suspicious of what would be going on, she crept to the rear of the house, peeped through his bedroom window and saw him lying on the bed with a white woman watching a movie.

Enraged, she picked a stone, broke the main door headed straight for the white woman and stabbed her left eye with a nail file. She then fled the scene leaving the white woman named Kimmie bleeding profusely. After frantic efforts Musyoka was able to get Kimmie to Maisha Mbaya hospital where she is still in critical condition. The same night Wambira was arrested and arraigned in court the next day.

Wambira, a single mother of two children one of whom is blind relies on her mother for upkeep and on odd jobs. She has instructed you to apply for bail which the prosecution is objecting to.

(a)Name the types of bail that one can apply for. (3 marks)

1.      Anticipatory bail

2.      Bail at the police station

3.      Bail during trial

4.      Bail pending appeal

(b)Identify two grounds upon which the prosecution may object to bail. (2 marks)

The prosecution may object to bail on the fact that;

She might interfere with witnesses as she has serious anger issues by the offence committed

She might escape the jurisdiction as the offence committed is a felony

She might cause other crimes while out on bail

Bail is not an absolute right as such not issued without caution

(c)Set out the grounds and factors which you as defense counsel would argue for Wambira's release on bail

1.      The accused is entitled to Bail as a constitutional right. The refusal of bail before trial has been discouraged.

2.      She is innocent until proven guilty. In Kenya this principle states that she should be considered innocent until a competent court of law can adjudge her as guilty.

3.      She has two children, one of whom has special needs this shows that she has serious commitments as a mother and as such she is not a flight risk In the case of Republic v Danson Mgunya and another[1] the court observed that the considerations were neither universal nor exhaustive. There is a likelihood that she will appear at trial as she can’t abandon her children.

4.      There is no likelihood that she will interfere with the case as she is a first time offender and a mother. She does not have political, criminal or business networks that are able to negatively influence the case. This is absent from the facts

5.      The accused has never been on bail before and breached bail terms.

6.      The accused is ready to deposit security to court in order to ensure her attendance at trial

7.      The accused is not a repeat offender as such it is not likely that she will commit other offences while on bail.

---

[1]

Q3-2015-CRIMINAL LITIGATION

Mokote Manga is a teacher at Malindi Secondary School. He has been arraigned before Jaji Odor, Senior Resident Magistrate at Maundu Law Courts. The offence is that on 16th March 2015, he caned Mwalifu Cheza a form one student on his fore arm and caused a hairline fracture for failing to do his homework. Based on this he is charged with causing grievous bodily harm contrary to Section 234 of the Penal Code punishable by up to 7 years imprisonment and fine of up to Kshs.200,000/-.

(a)Assuming that he wishes to plead guilty, discuss the process he will go through from plea to sentencing. (8 marks)

He pleads Guilty: The procedure for pleading guilty was seminally set out by the seminal case of Aden vs the Republic[1].

The charge and all the essential ingredients of the offence as well as the punishment that accompanies the crime committed should be explained to the accused in his own language or in one that he understands; this is so as to ensure that the accused understands in totality. It is a fatal omission to not read the accused the essential elements of the crime[2].

The accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded; this is so as to ensure that the decision to plea guilty is voluntary. Failure to do so is improper[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; 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; this is so as to ensure that the chain of causation and the burden of beyond reasonable doubt is proved or linked. It is mandatory to read to the accused the facts[4]

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. The accused will then

(b)Assuming that he does not plead guilty, set out the step by step procedure from the finding of prima facie case to sentencing.

Once the Court determines that a prima facie case has been established, it must, one more time, explain the substance of the charge to the accused person and inform him;

1.      That he can give a sworn statement whereby he will be cross examined

2.      That he can give an unsworn statement.

Where the accused opts to give an unsworn statement, his or her statement should

be recorded in full by the court and should not be cut short. The accused must be

freely allowed to make his or her defence.

3.      That he can remain silent

If the accused person says that he does not intend to give evidence or make

an unsworn statement, or to adduce evidence, then the prosecution may sum up

the case against the accused person

Depending on whichever he chooses, he will open up the defense case.

The accused person or his advocate may then open his case, stating the facts or law on which he intends to rely, and making such comments as he thinks necessary on the evidence for the prosecution. The accused person may then give evidence on his own behalf and he or his advocate may examine his witnesses (if any), and after their cross-examination and re-examination (if any) may sum up his case.

Where the accused elects to call other witnesses, such accused has to give his or her evidence first, followed by the witnesses. This evidence is subject to the same rules as the prosecution in examination- in- chief, cross examination and re-examination.

After this the Court will enter judgement. If it finds the accused not guilty it will acquit. If it finds the accused guilty;

The next procedure will be mitigation whereby the accused is asked to give reasons that may influence the manner of sentencing that is to be applied.

After mitigation, the Court may receive victim impact statements which will show to the court the extent of the accused’s offence.

After that the court will sentence the accused.   

---

[1] [1973] E.A 445 (C.A)

[2] Charo vs The Republic  1982 KLR 308

[3] KARIUKI VS REPUBLIC (1984) KLR 809

[4] JOSEPH NATWAT&10 OTHERS VS R (2004)Eklr (REVISION)

Q3- 2016- COMMERCIAL TRANSACTIONS

Q3 2016 COMMERCIAL TRANSACTION

PARTNERSHIP QUESTION

QUESTION THREE

Tom and Mary have for the last five years carried on business in the name of Style of Town Enterprises. Their business form of choice has been the General Partnership. So far, both of them have been actively engaged in the running of the business. Mary has, however, recently had a baby. She would want to dedicate more time to raising the baby. As such, she will not be able to dedicate as much time to the running of the business as she previously had. She however desires to remain an investor in the business and further to be available for consultation regarding broad and long-term strategic type decisions or matters affecting the business. Tom and Mary have therefore decided to convert their business form to a Limited Partnership. To facilitate this, the existing Partnership Agreement will have to be amended so as to make the requisite provision(s) for a Limited Partnership.

Required:

The following are excerpted clauses of the existing (general) Partnership Agreement. You are required to amend the following clauses with a view to making suitable provision for a Limited partnership form of business association. After amending each clause, you should further, in parenthesis (brackets) appearing at the end of each amended clause, cite the relevant legal rule (including the applicable section of relevant statute) which has informed the amendment.

PARTNERSHIP AGREEMENT

THIS PARTNERSHIP AGREEMENT (the "Agreement") is made and entered into

this (insert the "Execution Date")

BY AND BETWEEN

TOM TIM of Post Office Box Number 111 Nairobi and MARY MARIA of Post Office Box Number 222 Nairobi (hereafter individually referred to as the "Partner" and collectively as the "Partners").

BACKGROUND

A. The Partners wish to associate themselves as partners in business.

B. This Agreement sets out the terms and conditions of the partnership.

IN CONSIDERATION of and as a Condition of the Partners entering into this Agreement and other valuable consideration the receipt and sufficiency of which consideration is hereby acknowledged the parties to this Agreement agree as follows: 1. Formation By this Agreement, the Partners enter into a General Partnership (the "Partnership") in accordance with the laws of Kenya. The rights and obligations of the Partners will be as stated in the applicable laws of Kenya, specifically, the Partnerships Act (No.16 of 2012), except as otherwise provided hereunder.

2. Name

The firm name of the partnership will be TOMA Enterprises.

3. Purpose: ...

4. Term: ...

5. Place of business: ...

6. Capital contribution: ...

7. Withdrawal of Capital:

A Partner may withdraw all or any portion of their capital contribution at any time subject to giving a seven (7) days prior Notice to the other partner.

8. Management

All actions and decisions respecting the management, operation and control of the partnership and its business will be decided by a unanimous vote of the partners. Each partner will have authority to bind the partnership in contract.

9. Liability of Partners

Except as otherwise provided in this Agreement, the liability of the Partners from the conduct of the business affairs on operations of the partnership or from the debts of the partnership is unlimited.

10. Admission of New Partners

A new partner may only be admitted to the partnership with unanimous vote of all partners.

11.

Specifically, you are required to amend the following:

(a) Parties clause (note to explain how/why you have designated the status of each partner. (3 marks)

The parties clause will be amended to read TOM TIM of Post Office Box Number 111 Nairobi (General Partner) and MARY MARIA of Post Office Box Number 222 Nairobi (Limited Partner) (Tom has been put as a general partner so that he can solely undertake management of the partnership and have unlimited liability whereas on the other hand Mary has been designated as a limited partner, a limited partner need not take part in management as he or she is prohibited (sec 58 Partnerships Act). They may however take part in advising the general partner as to the future prospects that the firm is undertaking. This is allowed under the 1^st schedule of the partnerships act which states the activities that a limited partner may do. They will therefore form a limited partnership with one general and one limited partner)

(b) Withdrawal of Capital Clause. (3 marks)

7. Withdrawal of Capital:

A Partner may not withdraw all or any portion of their capital contribution at any time

A limited partner in a partnership may not withdraw their capital contribution at any time regardless of giving notice. This is prohibited by section 59 of the Partnerships Act. The withdrawal of capital makes the limited partner (Mary) liable to partnership obligations beyond her capital contribution.

(c) Liability of Partners Clause. (3 marks)

Except as otherwise provided in this Agreement, the liability of the general partner from the conduct of the business affairs on operations of the partnership or from the debts of the partnership is unlimited whereas the lability of the limited partner is limited.

In an LP the general partner is personally liable jointly and severally for the partnerships obligations this is as per section 56(1) of the Partnerships Act which states that a GP is liable for al debts and obligations. On the other hand, the liability of a limited partner is limited.

(d) Admission of New Partners Clause. (1 mark)

A new partner may only be admitted to the partnership with unanimous vote of all general partners.

In an LP the admission of a new partner is decided upon by the vote of the general partners. This is provided for under section 62 of the Partnerships Act. The limited partner has no decision making powers with regards to the admittance of a new partner. 

Q1- 2015- Criminal Litigation

On the night of 10th October, 2015, Bwana and Bibi were resting at their Pepo Lane home in Zuri  village. At about 9 p.m. they heard their dogs barking and shortly thereafter Machozi the watchman was at the front door knocking frantically. Bwana opened the door and two men wielding guns ordered them including Machozi to lie down. The armed men proceeded to tie them and then removed their gold watches, wedding rings, Bibi's diamond necklace and earrings. They stuffed the valuables into a bag. They then picked two Iphones, two Ipads and two laptop computers and packed them into the same bag.

Meanwhile Dhahabu, Machozi's wife arrived and headed for the main house to find out why the gate was wide open. The two gunmen on finding out that she was the watchman's wife requested her to get them drinking water. They followed her to their (Watchman's) quarters, raped her and left. Still in shock Dhahabu went to the main house where she managed to untie her husband, Bwana and Bibi.

Bwana and Bibi reported the matter to Mateso Bila Chuki Police Station. Inspector Kaa Chonjo was assigned the investigations. Meanwhile, two gentlemen Supu and Bora arrived at the police station the following day hurling insults at each other. It turned out that Bora had sold an IPad and jewelry to Supu and Supu's complaint was that Bora had failed to avail the proper documentation for the IPad and the jewelry.

Bora offered to take Kaa Chonjo to the place where he had bought the IPad and jewelry that he had sold to Supu. They proceeded to a house in Jiji Jinga belonging to Jicho and Pevu. They found the two men, Jicho and Pevu. The two were showing some watches and laptops to two other men who melted away as soon as they saw kaa Chonjo. Jicho and Pevu also tried to get away but were restrained by Bora and the chief Inspector. As Jicho and Pevu could not produce documentation with respect to the goods, Kaa Chonjo ordered them to carry all the items to the police station. He then called Bwana and Bibi who came and identified the two Ipads and two watches as those that had been stolen from them. They both said they had been too terrified to look directly at the gunmen during the attack but were convinced that they were of the same build as Jicho and Pevu.

Kaa Chonjo would like to prefer charges.

(a)Advise him on which offences and against whom they should be preferred. (6 marks)

The facts state Jicho and Pevu forcefully entered the premises at 9m which is at night. As such the offence of breaking into a house at night is known as Burglary. Section 304 of the Penal Code states that any person who breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein; or having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel, breaks out thereof, is guilty of the felony termed housebreaking and is liable to imprisonment for seven years. If the offence is committed at night it shall be called burglary and the offender is liable for three years.

Whilst in the house Jicho and Pevu were armed with guns. They tied the victims and robbed them of jewelry as well as an Ipad. They therefore committed robbery with violence. Section 295 and 296 of the Penal code states any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery. If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

Whilst in the house a female victim arrived and Jicho and Pevu proceeded to rape her. They are therefore guilty of the offence of gang rape. Section 10 of the Sexual Offences Act states that any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life.

(b)Draft the charges. (9 marks)

THE KENYA POLICE

CHARGE SHEET

O.B. NO………………….

POLICE CASE NO……………………….

DATE TO COURT…………………….….

Christian names in full or names 1.     Jicho 2.     Pevu	Surname or father’s name Oyo Aya	Identity No	Sex Male Male Male	Nationality Kenyan Kenyan Kenyan	Apparent age Adult Adult Adult	Address
CHARGE COUNT 1	ROBBERY WITH VIOLENCE CONTRARY TO SECTION 295 and 296 OF THE PENAL CODE CHAPTER 63 OF THE LAWS OF KENYA
PARTICULARS OF OFFENCE	1. JICHO    2. PEVU On 10th October 2015 at about 9pm Jicho and Pevu broke into Pepo Lane home in Zuri and while armed with a gun they robbed Bwana and Bibi of gold watches, necklaces, earrings and an I-pad. (FOR OTHER COUNTS, SEE ATTACHED SHEET)
If Accused Arrested Remanded or Adjourned to	Date of Arrest	Without or With Warrant	Date of Apprehension	Bond or Bail & Amount	Is Application for Summons to Issue
Complainant and Address	Bwana, Bibi, Dhahabu and Machozi
Witness	Bwana Bibi Dhahabu Machozi
Sentence Court and Date	CHIEF MAGISTRATE’S COURT NAIROBI

COURT FILE NO………………………...

For Officer In Charge Mateso Bila Chuki Police Stattion

ALTERNATIVE TO COUNT ONE

THEFT CONTRARY TO SECTION 268 AND 275 OF THE PENAL CODE CHAPTER 63 OF THE LAWS OF KENYA

PARTICULARS OF OFFENCE

1. JICHO    2. PEVU

On 10th October 2015, Jicho and Pevu stole gold watches, necklaces, earrings and wedding rings from Bwana and Bibi

COUNT TWO

BURGLARY CONTRARY TO SECTION 304 OF THE PENAL CODE

PARTICULARS OF OFFENCE

1. JICHO    2. PEVU

On 10th October 2015 at about  9pm without lawful intent Jicho and Pevu broke into the Lepo home in Zuri area. The house belonging to Bwana and Bibi..

COUNT THREE

GANG RAPE CONTRARY TO SECTION 10 OF THE SEXUAL OFFENCES ACT

PARTICULARS OF OFFENCE

3. JICHO AND PEVU

On 10^th October  2015, Jicho and Pevu jointly and forcefully raped Dhahabu at Lepo home in Zuri area.

COUNT FOUR

RESTRICTED USE OF A FIREARM CONTRARY TO SECTION 34(1) OF THE FIREARMS ACT

PARTICULARS OF OFFENCCE

ON 10^TH October 2015, Jicho and Pevu while armed with a gun stole necklaces, earrings, gold watches and an Ipad from Bwana and Bibi at Lepo home in Zuri