[2020] KEHC 7459 (KLR)
The court found that the applicant had satisfied the threshold for review under Order 45 of the Civil Procedure Rules, as the failure by the 2nd Respondent to update the criminal records to reflect the applicant's acquittal constituted discrimination. The court relied on the principle that review is available to...
Source-derived case information.
- Citation
- [2020] KEHC 7459 (KLR)
- Parties
- Applicant: Bernard Otieno Okebe; Respondent: The Hon. Attorney General; Respondent: The Director of Criminal Investigations; Respondent: The Ethics and Anti-Corruption Commission; Respondent: The Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 9 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Application for Review of Judgment
- Outcome
- Application for review allowed in part; declaratory relief granted; damages declined; costs awarded against 2nd Respondent.
- Judges
- TW Cherere
- Legal Topics
- Right to Non Discrimination, Judicial Review, Review of Judgment, Criminal Records Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Otieno Okebe
Applicant
The Hon. Attorney General
Respondent
The Director of Criminal Investigations
Respondent
The Ethics and Anti-Corruption Commission
Respondent
The Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the applicant satisfied the threshold for review of judgment under Order 45 of the Civil Procedure Rules.
- 2 Whether failure by the 2nd Respondent to update the criminal records to reflect the applicant's acquittal is discriminatory.
- 3 Whether the applicant is entitled to damages.
Ratio Decidendi
The court found that the applicant had satisfied the threshold for review under Order 45 of the Civil Procedure Rules, as the failure by the 2nd Respondent to update the criminal records to reflect the applicant's acquittal constituted discrimination. The court relied on the principle that review is available to correct self-evident errors or omissions and that the applicant's acquittal should be properly recorded to prevent ongoing prejudice. The court declined to award damages as the claim was not proved but granted declaratory relief and directed the respondents to update the applicant's records accordingly. Costs were awarded against the 2nd Respondent.
Court Disposition
Application for review allowed in part; declaratory relief granted; damages declined; costs awarded against 2nd Respondent.
Orders
- Declaration issued that failure by the 2nd Respondent to update the criminal records clearing the Petitioner to show acquittal in Kisumu Chief Magistrate’s Criminal Case No. 555 of 2008 is discriminatory.
- Declaration issued compelling the Respondents jointly and severally to ensure that the acquittal of the Petitioner in Kisumu Chief Magistrate’s Criminal Case No. 555 of 2008 is immediately relayed and communicated to the Criminal Records Office at the Director of Criminal Investigations office and the Petitioner’s...
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
(CORAM: CHERERE-J)
PETITION NO. 09 OF 2019
BETWEEN
BERNARD OTIENO OKEBE...............................................................PETITIONER
AND
THE HON. ATTORNEY GENERAL...........................................1ST RESPONDENT
THE DIRECTOR OF CRIMINAL INVESTIGATIONS...........2ND RESPONDENT
THE ETHICS AND ANTI-CORRUPTION COMMISSION....3RD RESPONDENT
THE DIRECTOR OF PUBLIC PROSECUTIONS....................4TH RESPONDENT
RULING
1. Order 45 of the Civil Procedure Rules provides as follows:
1. (1) Any person considering himself aggrieved-
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
2. In the case of National Bank of Kenya Limited v Ndungu Njau[1997] eKLR, cited by the Applicants, the Court of Appeal stated with regard to review that: -
“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should require no elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.”
3. The Respondents did not oppose the application. After due consideration of all the material placed before the court, I am persuaded that the Applicant has satisfied the threshold for grant of an order of review.
4. From the foregoing, the judgment dated 20th February, 2020 is hereby reviewed in the following terms:
1. A declaration be and is hereby issued that failure by the 2nd Respondent to update the criminal records clearing the Petitioner to show that he had been tried and acquitted in Kisumu Chief Magistrate’s Criminal Case No. 555 of 2008 is discriminatory
1. A declaration be and is hereby issued compelling the Respondents jointly and severally to ensure that the acquittal of the Petitioner in Kisumu Chief Magistrate’s Criminal Case No. 555 of 2008 is immediately relayed and communicated to the Criminal Records Office at the Director of Criminal Investigations office and the Petitioner’s records be updated accordingly
2. Petitioner’s claim for damages has not been proved and it is declined
3. 2nd Respondent shall bear the costs of this petition
DATED AND DELIVERED IN KISUMU THIS 12th DAY OF March 2020
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Amondi/Okodoi
For the Petitioner - Ms Onsongo hb for Mr. Onsongo
For the 1st , 2nd and 4th Respondents - Ms. Gathu hb for Ms Langát
For the 3rd Respondent - N/A