[2014] KECA 213 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

CORAM: KIHARA KARIUKI, PCA, MWERA & M’INOTI, JJ.A.

CRIMINAL APPLICATION NO. 1 OF 2014

BETWEEN

DICKSON MWANGI MUNENE.……………………..……….....……..APPELLANT

AND

REPUBLIC.………………………................………….……………..RESPONDENT

(Application for certificate to appeal to the Supreme Court against the judgment of the Court of Appeal at Nairobi (Nambuye, Maraga and Mohammed, JJ.A) dated 28th February 2014

in

CA CR.A NO. 314 OF 2014)

************

RULING OF THE COURT

By a Motion on Notice dated 15th May 2014 and taken out principally under Article 163(4)(b) of the Constitution, the applicant, Dickson Mwangi Munene, seeks a certificate from this Court that his intended appeal to the Supreme Court raises matters of general public importance, which deserve an opportunity to be heard by the apex Court. The applicant’s intended appeal arises from a judgment of this Court (Nambuye, Maraga and Mohammed, JJ.A) dated 28th February 2014 in Criminal Appeal No. 314 of 2011 in which the Court upheld the applicant’s conviction and the sentence of death imposed by the High Court for the offence of murder.

The rather unusual aspect of the application before us is that the bulk of the grounds which the applicant relies upon to make out matters of general public importance under Article 163(4) (b) of the Constitution are also, by the applicant’s own admission, issues involving interpretation and application of the Constitution within the meaning of Article 163(4)(a) of the Constitution. From the outset therefore, we ask ourselves whether it is expedient for the applicant to call upon this Court to pronounce itself on the general public importance of matters which both parties agree entail interpretation or application of the Constitution under Article 163(4)(a) thereof.

In other words, when the contending parties concede that at the heart of the issues that the applicant intends to argue before the Supreme Court lies the question of interpretation and application of the Constitution, can the applicant still ask this Court to determine that the same issues are also matters of general public importance under Article 163(4) (b) of the Constitution? Is such an exercise really necessary under the Constitution? In any event, does such an undertaking by this Court advance the overriding objectives under the Appellate Jurisdiction Act that demands timely disposal of proceedings at affordable costs as well as efficient use of available judicial and administrative resources, including time?

Be that as it may, the short background to the application before us is as follows. At all material times the applicant was an inspector of police in the Kenya Police Force, now the Kenya Police Service. On the morning of 24th January, 2009 at about 7. 00 am the applicant was involved in an incident near Sarit Centre, Westlands, Nairobi, with James Ng’ang’a Muiruri (Deceased),a PhD candidate and graduate tutor at the School of Law, Sheffield University, United Kingdom. As a result, the deceased was fatally shot three times.

The evidence adduced before the High Court was that the previous night the applicant and a group of his friends, who included one Alexander Chepkonga Francis (Chepkonga),had visited several bars in Nairobi, consuming alcohol in the process. At about 6 am on 24th January 2009, they ended up at the Crooked Q Bar and Restaurant (Crooked Q) in Westlands, which the deceased and a group of his friends were patronizing. After sometime an altercation erupted between the two groups in the bar, but in the absence of the applicant, who was said to have been sitting outside in his car. The two groups were separated by the establishment’s security and kept on different floors of the premises.

A while later the deceased’s group, which was on the upper floor, rose to leave. Outside the bar, they encountered the applicant’s group and another round of altercation ensued, this time between the deceased and Chepkonga. The two groups were once again separated by security men and the deceased entered a motor vehicle that was driven by his brother, John Gachera Muiruri (PW 13) and in which was another of his friends, Jedidah Ahawa Okudo (PW14) intending to leave the Crooked Q. Chepkonga summoned the applicant who drove in hot pursuit of the deceased’s car; overtook and blocked it near Sarit Centre. The applicant contends that the deceased had committed a cognizable offence in his presence by assaulting Chepkonga and for that reason he wanted to handcuff and arrest him. The deceased however resisted the arrest and grabbed at the applicant’s gun, which was not secured, and in the process of the struggle, the deceased was fatally shot.

The appellant and Chepkonga were jointly charged with the murder of the deceased. On 5th October, 2011, Warsame, J. (as he then was) found that the applicant had shot the deceased with malice aforethought and that Chepkonga and the applicant had acted with common intention in the murder of the deceased. Accordingly the learned judge convicted both for the offence of murder and sentenced them to death.

Aggrieved by the verdict the two appealed to this Court vide Criminal Appeal No. 314 of 2011. On 28th February 2014 the Court allowed the appeal by Chepkonga, quashed his conviction and set aside the sentence imposed on him. However, the appeal by the applicant was found to lack merit and his conviction and sentence were affirmed. It is against that judgment that the applicant intends to appeal to the Supreme Court.

To merit a certificate from this Court to appeal to the Supreme Court under Article 163(4) (b) of the Constitution the applicant must demonstrate that a matter of general public importance is involved in the intended appeal. The applicant has put forth twelve (12) grounds, which he submits involve matters of general public importance deserving of consideration by the Supreme Court. As most of those grounds also entail interpretation and application of the Constitution, we feel that it is necessary to reproduce the same verbatim here below. The grounds are:

“(i) Whether or not a policeman exercising constitutional and statutory authority to arrest persons committing a cognizable offence is justified to kill (which the applicant denies) a person resisting arrest;

(ii) whether or not a police officer justifiably using his service firearm in the discharge of his duties resulting in the death of a person can lawfully be convicted of the offence of murder or any other offence;

(iii) whether or not when a person is killed in the process of being arrested by a police officer, the arresting officer can be properly convicted of the offence of murder or any other offence;

(iv) whether or not a suspect of a criminal offence has an obligation to say anything to investigators and if failure to do so can lead to the drawing of an adverse inference in complete disregard of the constitutional right to silence; to be presumed innocent; to refuse to give self-incriminating evidence and the guidelines known in common law as the “Judges Rules” provided under Article 50(2)(a)(i) and (l) of the Constitution (equivalent to section (2) (a) & (7) of the repealed constitution);

(v) whether or not it is legally permissible for a court of law to take into account evidence of witnesses of doubtful credibility and whom it has found to have lied on oath as the basis for convicting a suspect of a criminal offence;

(vi) whether or not in re-evaluating and reassessing the evidence, the Court of Appeal, being the 1st and final court in routine circumstances in murder cases, is under a constitutional obligation and legal duty under Article 50(2)(q) of the Constitution, to draw reasonable inferences and conclusions supported by the primary facts or evidence adduced at the trial as contained in the record of appeal; or can the Court of Appeal draw conclusions and inferences not supportable by the primary facts adduced at the trial contained in the record of appeal;

(vii) whether or not it is constitutionally permissible for the legislature to fix an inflexible death sentence irrespective of the circumstances of the offence, the nature of the offence and the character of the offender;

(viii) whether or not fixing of an inflexible sentence by the legislature violates Article 159 (1) of the Constitution which vests judicial authority on “the courts and tribunals established by or under the Constitution”;

(ix) whether sentencing is a judicial or legislative function, which State organ is constitutionally permitted and vested with the power and authority to determine the appropriate sentence?;

(x) whether or not the death sentence is reasonably justifiable in an open and democratic society based on human dignity, equality and freedom;

(xi) whether or not the provisions of section 204 of the Penal Code violate Article 24(1) (c) of the Constitution in limiting the right to life under article 26 (1) in so far as it derogates from the core or essential content of the right to life; and

(xii) whether or not in granting only one unqualified and automatic right of appeal to murder convicts in contradistinction to convicts of other offences, violates Article 27(1) of the Constitution, which guarantees equality before the law, equal protection and equal benefit of the law.”

It is fairly clear, and Mr. Kilikumi, learned counsel for the applicant readily conceded as much, that the above grounds cover both matters of interpretation and application of the Constitution under Article 163(4)(a) of the Constitution and issues which the applicant deems to be matters of general public importance under Article 163(4)(b) of the Constitution. Among the issues raised that touch on the interpretation and application of the Constitution are:

Ground No. 4 which involves the interpretation and application of the right to fair hearing under Article 50 of the Constitution, and in particular the right of an accused person to be presumed innocent until the contrary is proved (Article 50(2) (a); his right to remain silent and not to testify during the proceedings (Article 50(2)(i) and his right to refuse to give self-incriminating evidence (Article 50(2) (l).

Ground No. 6 which involves the interpretation and application of the right, guaranteed by Article 50(2)(q) of the Constitution, to an accused person who is convicted of an offence, to appeal to or to apply for review by a higher court and what such higher court can or cannot do during the review or the hearing of the appeal.

Ground Nos. 7, 8, 9, 10 and 11, which question the constitutionality of the mandatory sentence of death and the respective roles of the judiciary and the legislature in sentencing. Specifically the issues raised entail the interpretation and application of Article 159(1) of the Constitution on the attributes of judicial authority; the right to life under Article 26(1) of the Constitution and the permitted limitation to or derogation from that right under Article 24(1)(c) of the Constitution; and

Ground No. 12 which involves the interpretation and application of the right to equality and freedom from discrimination under Article 27(1) of the Constitution and in particular resolution of the question whether the single appeal as of right available to persons convicted of the offence of murder is unconstitutional and discriminatory and contrary to Article 27(1) of the Constitution in so far as persons convicted of capital offences by subordinates courts are guaranteed at least two appeal as of right.

It is important to note that the above grounds were never raised before this Court when it heard and determined Criminal Appeal No. 314 of 2011. The Court never pronounced itself on the matters raised therein. Rather, the applicant contends, that the issues of the interpretation or application of the Constitution arise of necessity from the judgment of this Court.

In THE KENYA SECTION OF INTERNATIONAL COMMISSION OF JURISTS V ATTORNEY GENERAL & 2 OTHERS, CRIM. APP. NO. 1 OF 2012, the Supreme Court stated that an issue involving interpretation or application of the Constitution under Article 163(4)(a) of the Constitution must not be a collateral question, only minimally related to the substantive issues determined by this Court. If it is such, then the leave of this Court is required. However, in PETER GATIRAU MUNYA V. DICKSON MWENDA KITHINJI & OTHERS SC APP NO. 5 OF 2014, the Supreme Court also stated as follows regarding whether a matter involves questions of constitutional interpretation or application:

“Where specific constitutional provisions cannot be identified as having formed the gist of the cause at the Court of Appeal, the very least an applicant should demonstrate is that the Court’s reasoning, and the conclusions which led to the determination of the issue, put in context, can properly be said to have taken a trajectory of constitutional interpretation or application.”

We understand the applicant in this application to contend that put in its proper context, the reasoning and the determination of this Court has taken a trajectory of constitutional interpretation or application sufficient to enable him to approach the Supreme Court.

As far as the right of appeal to the Supreme Court on matters involving the interpretation or application of the Constitution is concerned, Article 163(4) (a) of the Constitution provides as follows:

“Appeals shall lie from the Court of Appeal to the Supreme Court-

(a) as of right in any case involving the interpretation or application of this Constitution…”(Emphasis added).

In our view, Article 163(4) (a) is clear enough that a party who claims that his intended appeal to the Supreme Court raises issues of the interpretation or application of the Constitution has an express right, free from the requirement of prior leave or certification, to approach the Supreme Court directly. The exercise of the right under Article 163(4)(a) is not dependent on first obtaining a certificate from this Court because the party appeals to the Supreme Court, “as of right”. The words “as of right” connote an appeal by virtue of legal or constitutional entitlement. The Supreme Court, in NICHOLAS KIPTOO ARAP KORRIR SALAT V. IEBC & 7 OTHERS, SC APP NO. 16 OF 2014, observed that whether or not an a matter brought before that Court has properly invoked its jurisdiction under Article 163(4)(a) of the Constitution regarding the interpretation or application of the Constitution is a substantive matter to be decided in the main appeal if and when it is filed. The Court expressed itself thus:

“Whether or not the constitutional questions as framed by the applicant were indeed canvassed and determined by the Court of Appeal is a substantive question that rightly falls for determination during the hearing of the appeal if and when filed.”

So why then would a party who has such an express right and who is entitled to a determination by the Supreme Court whether the issues he intends to canvass before it involve interpretation or application of the Constitution, wish to subject those issues to certification by this Court? Would this Court be acting in deference to the Constitution and in promotion of its purposes, values and principles if it were to purport to introduce strictures and filters to a right of access to the Supreme Court that is otherwise free and devoid of such restrictions? When we inquired from learned counsel for the applicant why the above issues required certification by this Court, the response was that the applicant was acting out of abundant caution in light of the decision of the Supreme Court in SUM MODEL INDUSTRIES LTD V. INDUSTRIAL & COMMERCIAL DEVELOPMENT CORPORATION, SC, C.A. No. 1 of 2011.

In that application, the Supreme Court stated as follows regarding applications for certificate:

“This being an application for leave to appeal against a decision of the Court of Appeal, it would be good practice to originate the application in the Court of Appeal which would be better placed to certify whether a matter of general public importance is involved. It is the Court of Appeal, which has all along been seized of the matter on appeal before it. That Court has had the advantage of assessing the facts and legal arguments placed and advanced before it by the parties. Accordingly, that Court should ideally be afforded the first opportunity to express an opinion as to whether an appeal should lie to the Supreme Court or not. If the applicant should be dissatisfied with the Court of Appeal’s decision in this regard, it is at liberty to seek a review of that decision by this Court as provided for by Article 163(5) of the Constitution. To allow the applicant to disregard the Court of Appeal against whose decision it intends to appeal and come directly to this Court in search of a certificate for leave, would lead to abuse of the process of court.”

In our view the above decision of the Supreme Court does not require a prospective appellant, who claims that his intended appeal raises issues of interpretation or application of the Constitution within the meaning of Article 163(4)(a), to first apply for certificate from this Court. That decision arose from an application under Article 163(4)(b) on matters of general public importance and therefore its application should be restricted to applications of that nature. The Supreme Court stated that where an intended appellant claims that his appeal raises matters of general public importance, he is obliged first to apply for certificate from this Court. This is because, as the Supreme Court later pointed out in STEYN V GNECCHI-RUSCONE(2013) 2 EA 348the Supreme Court and this Court have concurrent jurisdiction regarding certification whether a matter of general public importance is involved in an intended appeal. However, for the sake of good order and practice, the Supreme Court added that in such cases the intended appellant should first make his application for certification in this Court and approach the Supreme Court if he or she is dissatisfied by the decision of this Court. In short, in Sum Model Industries the Supreme Court never laid down a rule that in an intended appeal to the Supreme Court involving interpretation or application of the Constitution, the appellant must first apply for certification by this Court.

The possible rationale behind the fact that the Constitution does not require a certificate from the Supreme Court or from this Court before a party can appeal to the apex Court on matters involving the interpretation or application of the Constitution is that the Constitution deems all matters involving its the interpretation or application to be per se matters of general public importance. In such eventuality, no certification is necessary. Alternatively matters involving interpretation and application of the Constitution are treated by the Constitution as matters sui generis,to be addressed immediately by the Supreme Court once they are raised, without the need for prior certification. In either case, this Court must avoid the real danger inherent in the application before us, of declaring to be matters notof general public importance, issues that the Constitution has otherwise deemed from the outset to be matters of general public importance.

In light of the foregoing, we are of the view that no amount of caution should ever justify or allow to take root in this Court a practice that is in direct conflict with the clear provisions of Article 163(4)(a) of the Constitution. Such practice, in any event would be unnecessary and subversive of the overriding objectives spelt out in the Appellate Jurisdiction Act, which require the just, expeditious, proportionate and affordable resolution of the appeals, efficient use of the available judicial and administrative resources; and the timely disposal of proceedings at affordable costs. Accordingly, we shall consider in this application only issues that the applicant contend raise matters of general public importance under Article 163(4)(b) of the Constitution.

The remaining grounds that the applicant contends raise matters of general public importance are grounds Nos. 1, 2 and 3 in the Motion which collectively raise questions of use of force by a police officer in effecting arrest and issue No. 5 which raises questions of credibility of witnesses and the extent to which a court can take into account and act upon evidence of a witness of doubtful credibility. It is common ground between Mr. Kilukumi and Mr. Orinda, learned Assistant Deputy Public Prosecutor, for the respondent, that the Supreme Court exhaustively considered what constitutes a matter of general public importance in STEYN V GNECCHI-RUSCONE(supra). In that case, the Supreme Court emphasized that it is for the applicant to identify and concisely set out the specific elements of general public importance which he or she attributes to the matter for which certification is sought and that the burden lies upon such applicant to demonstrate that the matter in question carries specific elements of real public interest and concern.

While observing that the exact image of a matter of general public importance may vary in different situations, the majority in the Supreme Court stated that nevertheless there are broad guiding principles to ascertain the stature of a particular case. Accordingly, to constitute a matter one of general public importance:

the matter must be one the determination of which transcends the circumstances of the particular case with significant bearing on the public interest;

where the matter involves a point of law, the point must be substantial, so that its determination will have a significant bearing on the public interest;

such question(s) of law must have arisen in the Court of Appeal and must have been the subject of judicial determination.

The Supreme Court further added that other relevant considerations to be borne in mind in determining whether an issue is a matter of general public importance include the fact that mere apprehension of miscarriage of justice per se is not a basis for certification unless the terms of Article 163(4)(b) are satisfied and that determination of fact in contests between parties are not by themselves a basis for granting a certificate.

The minority in the Supreme Court, while in agreement with the above principles, would have added the following 4 principles as matters of general public importance:

“(i) issues of law of repeated occurrence in the general course of litigation;

(ii) questions of law that are, as a fact, or as appears from the very nature of things, set to affect considerable numbers of persons in general or of litigants;

(ii) questions of law that are destined to continually engage the workings of the judicial organs; and

questions bearing on the proper conduct of the administration of justice.”

In MALCOM BELL V DANIEL ARAP MOI & ANOTHER, SC APP. No. 1 of 2013 and in KOINANGE INVESTMENTS & DEVELOPMENT LTD V ROBERT NELSON NGETHE, SC APP. No. 4 of 2013, the Supreme Court accepted allthe guiding principles, as propounded by both the majority and the minority in STEYN V GNECCHI-RUSCONE (supra),for purposes of determining whether or not a matter of general public importance is involved in an intended appeal.

The first issue of general public importance that the applicant has placed before us relates to the use of force, including lethal force, by a police officer while effecting an arrest. It is a first principle in our jurisdiction that the law does not allow and has never allowed a police officer to use lethal force willy-nilly while effecting an arrest. The circumstances under which a police officer may use force while effecting an arrest are closely regulated by law. Section 21 of the Criminal Procedure Code stipulates as follows:

“21. (1) In making an arrest the police officer or other person making it shall actually touch or confine the body of the person to be arrested, unless there be a submission to custody by word or action.

(2) If a person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, the police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section shall justify the use of greater force than was reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender.”

The principle of use of reasonable force set out in section 21(3) above was repeated in the repealed Police Act, Cap 84, which was in force at the time the offence for which the applicant was convicted, was committed. Section 28 on the use of arms by a police officer provided as follows:

“28. A police officer may use arms against -

(a) any person in lawful custody and charged with or convicted of a felony, when such person is escaping or attempting to escape;

(b) any person who by force rescues or attempts to rescue another from lawful custody;

(c) any person who by force prevents or attempts to prevent the lawful arrest of himself or of any other person:

Provided that arms shall not be used-

(i) as authorized in paragraph (a), unless the officer has reasonable ground to believe that he cannot otherwise prevent the escape, and unless he gives warning to such person that he is about to use arms against him and the warning is unheeded;

(ii) as authorized in paragraph (b) or paragraph (c), unless the officer has reasonable ground to believe that he or any other person is in danger of grievous bodily harm or that he cannot otherwise prevent the rescue or, as the case may be, effect the arrest.”

The use of force by police officers is even more circumscribed under section 61 of the current National Police Service Act, No. 11A of 2011 as read with Schedule 6 of the same Act. This is the Act that repealed and replaced the former Police Act.

A reading of the above statues readily shows that the circumstances under which a police officer can use force, including lethal force while effecting an arrest are well set out in the law. On the facts of the application before us, the trial court and this court exercising its appellate jurisdiction considered the circumstances under which the deceased was shot to death. Both courts concluded that the applicant shot the deceased, who was not armed, three times aiming at vital organs, thus ruling out any justification for use of such lethal force. With respect, given the clear and unambiguous provisions of the law on the use of force by a police officer, we do not see any“cardinal issues of law or of great jurisprudential moment” transcending the particular circumstances of this case, which the applicant can legitimately take forward for further consideration by the Supreme Court. (SeePETER ODUOR NGOGE V FRANCIS OLE KAPARA & 5 OTHERS, SC Petition No. 2 of 2012).

We hold the same view regarding the last ground put forward by the applicant as a matter of general public importance, namely treatment of evidence of witnesses of doubtful credibility and the extent to which a court can rely on such evidence. Again issues of admissibility of evidence and the weight to be attached to such evidence are comprehensively provided for in the Evidence Act and the applicant’s complaint rather than raising any exceptional issue is just common fare.

It appears to us that the appellant’s real grouse is not so much the existence of cardinal issues of law or of jurisprudential moment that deserve consideration by the Supreme Court, but rather the concurrent findings of fact by the High Court and this Court as well as the application in his particular case, of the law on use of force by the police and the application of the rules of evidence, which he considers to have been erroneous. That, we are afraid, from the principles enunciated by the Supreme Court, is not sufficient ground for certification that his intended appeal raises matters of general public importance. As this Court stated in SAMUEL KIBUTHA KAMAU VS REPUBLIC CR. APP No. 1 of 2012:

“In order to come within the limited scope within which a certification may be issued against the general commonsensical proposition that decisions of this Court bear the imprint of finality, it behooves an applicant for certification, the intended appellant to the Supreme Court, to demonstrate that he intends to raise a matter of general public importance. What he intends to urge must be shown to go beyond the usual grievance, dissatisfaction and disappointment that attend the outcome of litigation. His issues must transcend the personal and private to occupy the general and public space sufficiently to invite the Supreme Court’s jurisdiction.”

We have ultimately come to the conclusion that the applicant has failed to discharge the burden on him to satisfy us that his intended appeal to the Supreme Court raises matters of general public importance. Accordingly the Notice of Motion dated 15th May 2014 fails and is hereby dismissed. As this application arises from the exercise of the criminal jurisdiction, we make no orders on costs.

Dated and delivered at Nairobi this 28th day of November, 2014.

P. KIHARA KARIUKI, PCA

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JUDGE OF APPEAL

J. W. MWERA

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JUDGE OF APPEAL

K. M’INOTI

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JUDGE OF APPEAL

I certify that this is a true

copy of the original

DEPUTY REGISTRAR

jkc