ANARITA KARIMI NJERU vs THE REPUBLIC (NO.1)
HIGH COURT AT NAIROBI (TREVELYAN AND HANCOX JJ)
MISCELLANEOUS CRIMINAL APPLICATION NO. 4 OF 1979
JANUARY 16, 29, 1979
Constitutional interpretation – Duty of court to gather the spirit of the Constitution from the language of the Constitution.
Constitutional law – A person may only use the constitution for redress where no other action is available to him.
The applicant was tried before the resident Magistrate, Meru, upon two charges of stealing Shs.46,574 and Shs.9,936/= by a person employed in the public service.
She alleged that she was refused an adjournment to enable her call her witness of whom she had notified the court. She however did not thereupon ask for a reference to the High Court as to whether or not such denial was constitutional but instead allowed the trial to go on and to be completed. It was upon conviction and sentence that she drew a petition of appeal, seeking court’s declaration that the provisions of S.77 of the Constitution of Kenya were contravened during her trial and an order that her trial be nullified or otherwise disposed of under those provisions of the Constitution. Counsel for the respondent submitted that the application was incompetent in that it was too late for the appellant now to seek redress because she could and should have done so whilst on trial in the subordinate court and that having appealed or sought to appeal to this court against her conviction and sentence should not be allowed to come here again for what is in effect the same purpose.
Held: 1. The only complaint that can lie of an alleged refusal to afford the defence “reasonable” facilities under S.77 (2) (e) of the Constitution of Kenya is only in regard to that witness who has been notified to court by the party wishing to call him.
2. Where a person is seeking redress from the High Court on a matter involving a reference to the constitution it is important (if only to ensure that justice is done to his case) that should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed.
3. An argument founded on what is claimed to be the spirit of the Constitution is always attractive for it has a powerful appeal to sentiment and emotion but a court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe to be the spirit of the constitution cannot prevail of the language of the constitution does not support that view.
4. In a document enshrining the rights and freedoms of the individual, is it not fit to limit to a single moment that time when redress must and can only be sought for the contravention of such rights.
5. The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. The Tribunal that has to construe an Act of a legislature, or indeed any other document has to determine the intention as expressed by the words used. And in order to understand these words, it is natural to enquire what is the subject – matter with respect to which they are used and the object in view.
6. It is clear that a person may utilise S.84 (1) of the Constitution to enable him secure redress if no other action has ever been available to him but if such other action has been so availed, he cannot invoke the section. The applicant cannot therefore now be heard on this application if the steps she has taken amount to such other action.
7. High Court has jurisdiction to entertain proceedings for prerogative writs on the criminal or civil side of its jurisdiction according to the nature of the proceedings.
Application dismissed:
Counsel:
G.K Mwirichia for the applicant
E.K Muttu Senior State Counsel for the Republic
Legislation considered:
1. The Constitution of Kenya SS. 70 – 84
Cases cited:
1. East African Community vs The Republic (1970) E.A. 457, E.A.C.A.
2. Gokpa (Dixon) vs Inspector – General of Police (1961) 1 AII NLR 423
3. Keshava Menon vs State of Bomby (1951) SCR 228
4. Re Keshaval Punja Parbat Shah (1955)22 EACA 381
5. Muyimbwa vs Uganda (1969) E.A 433
6.Okunda vs The Republic (1970) EA 453
7. The Republic vs EL Mann (1969) E.A 357
