SCHOOL OF LAW

LEGAL WRITING AND

DRAFTING
Case Study

6/1/2019
Table of Contents
Declaration......................................................................................................................................ii
Acknowledgement..........................................................................................................................iii
Dedication......................................................................................................................................iv
List of References............................................................................................................................v
List of Cases...................................................................................................................................vi
In the Legal Opinion......................................................................................................................vi
In the Case Brief.............................................................................................................................vi
Research Outline..............................................................................................................................1
The Research Problem.....................................................................................................................1
Study of Facts..................................................................................................................................1
Identification of Legal Issues.......................................................................................................... 1
Analysis of the Legal Issue, Under Applicable Law.......................................................................1
Legal Options Against the State of Kenya...................................................................................... 2
Recommendations........................................................................................................................... 2
Legal Opinion..................................................................................................................................3
Background..................................................................................................................................3
Legal Issues Arising.....................................................................................................................3
Analysis of Legal Issues Arising.....................................................................................................4
st
i. Validity of The 1 March 2019 Search................................................................................ 4
ii. Breach of Fundamental Rights and Freedoms......................................................................4
Right to Privacy...............................................................................................................................4
Right to Dignity...............................................................................................................................5
Rights of an Arrested Person...........................................................................................................5
Right to Protection of Property........................................................................................................5
Iii. Defamation by The State...................................................................................................5
Iv. Jurisdiction Over Ben John’s Case.......................................................................................6
Legal Options.................................................................................................................................. 6
Recommendation.............................................................................................................................6
Brief Facts........................................................................................................................................7
Bibliography..................................................................................................................................12
Annexures........................................................................................................................................1

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LIST OF REFERENCES
The Constitution of Kenya 2010

The National Police Service Act 2011

The Penal Code Cap 63

The Criminal Procedure Code Cap 75

The Defamation Act Cap 36

The Elections Act 2011

The Election Laws (Amendment) Act 2017

The Election Regulations 2011

The Evidence Act 1963

The Political Parties Act 2011

The Supreme Court Act 2011

The Supreme Court Rules 2011

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LIST OF CASES

In the Legal Opinion

Johnson Gacheru Ngigi v Inspector General of the National Police Service & another [2019] eKLR

Wilfred Gisebe Gisebe & 2 others v County Government of Kisii and 2 others (2017) eKLR

Samura Engineering Ltd and 10 others vs Kenya Revenue Authority [2012] eKLR

Fuste v Riverside Healthcare Association 256 Va. 127, 134 (2003)

Anarita Karimi Njeru vs Republic (1979) KLR 154

In the Case Brief

In the Matter of the Principle of Gender Representation in the National Assembly and the
Senate 2012

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RESEARCH OUTLINE

The Research problem

We will use this outline to analyze Ben John's legal options against the state of Kenya.

Study of Facts
The study of facts in this case will help us to identify the legal issues to be addressed in the legal
opinion.

Identification of Legal Issues

From the facts, we have identified the following legal issues to address in the legal opinion: -
1) Whether the search conducted was valid
2) Whether Ben’s fundamental rights and freedoms have been breached
3) Whether Ben John was defamed by the state
4) Which court has jurisdiction over Ben John's case

Analysis of the legal issue, under applicable law

We will analyse the legal remedies available to Ben John by discussing the following issues: -
1. Whether the search conducted was valid.
a) Articles 24 and 31 of the Constitution of Kenya, 2010.
b) Section 20 of the National Police Act, 2011.
c) Section 120 of the Criminal Procedure Code will apply.
d) The case of Johnson Gacheru Ngigi versus Inspector of the National Police Service
& another [2019] eKLR will apply.
2. Whether Ben’s fundamental rights and freedoms have been breached.
There are several fundamental rights and freedoms which have been breached in this case.
i. Right to Privacy.
a) We will apply article 31 of the Constitution of Kenya.
b) We will apply the cases of Wilfred Gisebe Gisebe & 2 others v County Government
of Kisii and 2 others (2017) eKLR, and Samura Engineering Ltd and 10 others vs
Kenya Revenue Authority [2012] eKLR
ii. Right to dignity.
a) Articles 28 of the Constitution of Kenya will apply.

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 iii. Rights of an arrested person.
a) Articles 49 (a), (c) and (f) of the Constitution of Kenya.
b) Article 29 of the Constitution in line with the case of Keroche Breweries Limited and
6 others versus Attorney General and 10 others (2016)eKLR will apply.
iv. Right to protection of property.
a) Article 40 of the Constitution of Kenya shall be applied.
b) Section 339 (1) of the Penal Code on offences of malicious damage to property will
apply.
c) We will apply the case of Simon Kiama Ndiagui versus Republic NYR HCCRA
NO.92 of 2013[2017] eKLR.
We will give Ben John an opinion based on the analysis made.
3. Whether Ben John was defamed.
We will define defamation according to Article 194 of the Constitution and of the Penal Code,
restating the state’s defamatory words towards Ben.
The case of Fuste v Riverside Healthcare Association 256 Va.127,134(2003) will help us illustrate.
We will give Ben John a legal opinion based on the analysis.
4. Which court has jurisdiction over Ben John’s case.
Definition of jurisdiction
We will apply article 23(1) and 165(a) and (b) of the Constitution on the jurisdiction of the High
court.
The case of Anarita Karimi Njeru vs Republic (1979) KLR 154 shall apply.

Legal options against the state of Kenya

We will discuss how the detectives infringed the rights and fundamental freedoms.
We will demonstrate that the detectives were acting in violation of the rule of law, destroying
Ben’s property.
We will show that the state defamed Ben John through publications by the media.
We will give Ben John an opinion based on the analysis.

Recommendations
We will make recommendations of the several legal options available to Ben John against the state.

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 FIRM 16 & CO. ADVOCATES

Advocates, Notaries Public and Commissioners for Oath

__________
Partners:
Allan Abuti, Cephas Doc, Eunice Maina, Eva Ann Chege, Faith Cherono, Juma Joshua, Sherleen
Wawira, Victor Ayodi, Victoria Atieno
_________
Victoria Towers, Third Ngong Ave. Upperhill, Nairobi, Kenya.
Mobile: 0756 000010 Email: [email protected]

nd
OUR REF: HIG123/19 YOUR REF: TBA 2 May 2019
Ben John,
P.O. Box 234-00100,
NAIROBI.
“HAND DELIVERY”
Dear Sir,
RE: THE LEGAL OPTIONS AVAILABLE AGAINST THE STATE
We refer to the above matter and acknowledge your instructions to render a legal opinion. We have
considered the facts, in relation to the law and are pleased to furnish you with our legal opinion.

LEGAL OPINION
Background
st
On 1 March 2019, detectives from the Directorate of Criminal Investigations (DCI) raided your
house at 5:30am. The detectives broke your front door and started searching your house. They
searched every inch of your house without a search warrant. They told you that they were
looking for evidence that you had stashed Ksh 500, 000 in your house and that you were
involved in corrupt dealings amounting to five billion Kenya Shillings. The officers damaged
property worth around Ksh 1, 500, 000 in the process.
Legal issues arising
From the above facts, the following issues arise;
i. Whether the search conducted was valid;
ii. Whether your fundamental rights and freedoms were breached;
iii. Whether the state defamed you; and
iv. Which court has jurisdiction over your case.

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Analysis of Legal Issues Arising
st
i. Validity of the 1 March 2019 search
Article 31 of the Constitution provides for the right of every person to privacy including the right
not to have their person, home or property searched. The right may be limited under Article 24
where it is justifiable by law and based on human dignity, equality and freedom. A search
warrant is an order by a judge/magistrate commanding a law enforcement officer to search a
specific person or premises for specified goods.
Ordinarily, officers should obtain a warrant before conducting a search. However, a search may
be conducted with or without a search warrant. Searches can infringe the right to privacy and
must therefore be conducted within the statutory safeguards which regulate the way in which
state officials enter private homes of ordinary citizens. Section 20 of the Police Act provides that
where an officer has reasonable suspicion that something necessary for the purposes of such
investigation is likely to be found in any place and that the delay occasioned by obtaining a
warrant will prejudice investigation, he/she may conduct the search without a warrant. Section
120 of the Criminal Procedure Code provides that where the premises to be searched is closed
the officer shall demand the person residing in it to allow him/her free access in and out of the
premises. The officer may only break any door or window where ingress cannot be obtained.
Where an officer violates the rules for conducting searches the evidence obtained is illegal and
the court may exercise discretion to disregard it. In Johnson Gacheru Ngigi v Inspector General
of the National Police Service & another [2019] eKLR, the court awarded the petitioner damages
for a search on his premises without a warrant deeming it arbitrary and unlawful.
ii. Breach of Fundamental Rights and Freedoms

Right to Privacy
Article 31 of the Constitution of Kenya guarantees every person the right to privacy which includes
not to have their person, home or property searched. This right was infringed when the detectives
from the Directorate of Criminal Investigations raided your house at 5.30 am. In the case of Wilfred
Gisebe Gisebe & 2 others v County Government of Kisii and 2 others (2017) eKLR, the petitioner
was awarded damages based on infringement of their privacy rights under Article 31 of the
Constitution by the respondents’ arbitrary invasion and search of their home. In Samura Engineering
Ltd and 10 others vs Kenya Revenue Authority [2012] eKLR, the petitioners were

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awarded damages based on infringement of their privacy rights which the respondents breached
when they searched and seized of their property.

Right to Dignity
Article 28 of the Constitution provides for every person’s right to dignity and respect and
protection of their dignity. The detectives violated this right by televising the raid on national
television, handcuffing and forcing you to sit on the floor.

Rights of an arrested person

Article 49 of the Constitution provides that an arrested person has to be informed in the language
he understands of the reason for the arrest and to be brought before a court within twenty-four
hours after being arrested. In Keroche Breweries Limited and 6 others versus Attorney General
& 10 others (2016)eKLR, the court emphasized on Article 29 of the Constitution which
guarantees the right not to be deprived of freedom arbitrarily without just cause.

Right to protection of property

Article 40 of the Constitution stipulates the protection of right to property. The State should not
deprive a person of property of any description. The detectives, while conducting the search
destroyed property worth Ksh.1,500,000 without justification. They deprived, limited and
hindered you from enjoying and owning property based on Article 40 (3) of the Constitution.
iii. Defamation by the State
Defamation is a tort that injures a person’s reputation. The ingredients for liability are; the
statement must be defamatory, it must make reference to the plaintiff, and it must be
communicated to a person other than the plaintiff. Two hours into the search, the officers did not
find anything that would implicate you. However, they insisted that you were a public thief and
must be brought to book. The statement was made in the course of their official duty and against
you. It was defamatory as it painted you as a public thief. This was published to the public as
there were at least six media stations televising the raid. Vicarious liability principle applies in
defamation just as it does in other torts. Generally, the principal is liable for tortious conduct of
their agent. In Fuste v Riverside Healthcare Association 256 Va. 127, 134 (2003), it was held
that defamation liability may be founded upon statements made by an authorized agent.

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iv. Jurisdiction over Ben John’s case
Jurisdiction is the authority constitutionally conferred upon a court to pronounce the sentence
and to award the remedies provided by law upon facts proven or admitted. Article 23(1) of the
Constitution vests power to the High Court to hear and determine applications for violation or
infringement of a right or fundamental freedom in the Bill of Rights. Article 23(2) stipulates that
parliament shall enact legislation to give original jurisdiction to subordinate courts to hear and
determine applications for redress of a denial or violation of a right or fundamental freedom.
Article 165(b) of the Constitution reiterates the jurisdiction of the high court to determine the
question whether a right or fundamental freedom has been violated or infringed upon.
Article 22(1) provides that every person has the right to institute court proceedings claiming that
a right or fundamental freedom in the bill of rights has been violated. Additionally, every person
under Article 258 has a right to institute court proceedings, claiming that the Constitution has
been contravened. In the case of Anarita Karimi Njeru vs Republic(1979) KLR 154 it was stated
that while petitioning the court, it is important to set out with a reasonable degree of precision
that of which is complained, the provision allegedly infringed and the manner of infringement.

Legal Options
From the analysis above, it is clear that your fundamental rights and freedoms were violated. The
available reliefs include but are not limited to; a declaration that the search was arbitrary
amounting to a violation of your rights and recovery of damages for infringement of your rights.

Recommendation
It is our recommendation that;
a) A petition to the High Court be filed based on the conduct of the search without a warrant. If
found liable, the court can declare the search arbitrary under Article 29(a) of the Constitution.
b) A suit against the state be filed for the infringement of your rights to privacy, dignity,
property and the right to freedom and security of person. If found liable, the court can make
an order for compensation.
c) The state be sued for compensation of Ksh. 1,500,000 for destruction of property.
Yours Faithfully,
___________
Eunice Maina
Firm 16 & Co Advocates

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 CASE BRIEF IN THE MATTER OF MOHAMED ABDI MAHAMUD V AHMED
ABDULLAHI MOHAMAD & 3 OTHERS; AHMED ALI MUKTAR (INTERESTED
PARTY)

REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI

(Coram: Maraga; CJ & P, Ibrahim, Ojwang, Wanjala, Njoki &

Lenaola, SCJJ) Petition No. 7 of 2018

BRIEF FACTS
In the general election held on 8th August 2017, six candidates including the appellant, the 1st
and 2nd respondents contested for the Wajir gubernatorial seat. The appellant garnered 49,079
st
votes. His runners-up was the 1 respondent who received 35,572 votes. The appellant was
accordingly declared the Governor of Wajir County.

PROCEDURAL HISTORY

The appellant’s election was challenged in the High Court on the grounds that the appellant was
constitutionally not qualified to vie and that the election was marred with irregularities and
illegalities. The High court found in favour of the petitioners, nullified the election of the
appellant and directed a fresh election. The appellant appealed to the Court of Appeal, sitting in
Nairobi (Waki, Makhandia and Kiage JJA) in Election Petition No. 2 of 2018. The Appellate
Court in its judgement dated 20th April, 2018 dismissed the petitioner’s appeal and in so doing,
upheld the decision of the High Court (Mabeya J). The appellant now appealed to the Supreme
Court.

ISSUES
The Supreme Court in a majority decision singled out the relevant issues to be as follows;
1) Whether it had jurisdiction to entertain the appeal;
2) Whether the High Court, sitting as an election Court, had jurisdiction to entertain a pre-
election dispute arising from nominations;
3) Whether it had jurisdiction to determine issues that were never addressed by the Court of
Appeal; and

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 4) Whether or not the appellant had the requisite academic qualification to vie for the
position of Governor for Wajir County.

HOLDING
The court overturned the decision of the Court of Appeal and in so doing, upheld the election of
the appellant as Governor of Wajir County.
LAW APPLIED BY THE COURT

1. Constitution of Kenya (2010) - Articles 88 (4), (e), 163(4)(a), 105(1) (3), 165 (3) (6),
180(2) and 193(1)(b)
2. Elections Act (2011) - Sections 22(1)(b)(ii), 74(1), 83, 85A and 109
3. Election Laws (Amendment) Act No. 1 of 2017 - Section 8
4. Election Regulations (2011) - Regulations 47 and 79
5. Evidence Act (1963) - Section 107
6. Political Parties Act (2011) - Section 39
7. Supreme Court Act (2011) - Sections 3(c), 20 and 21(3)
8. Supreme Court Rules (2012) - Rules 3(5) and 18

RULE OF LAW/ LEGAL PRINCIPLE APPLIED (In the Majority Opinion)

On the first issue, the court held that it had jurisdiction to determine the appeal as the material
question required an interpretation and application of the Constitution.

On the second issue, it was held that the High Court had no jurisdiction to deal with pre-election
disputes. The Election Court (High Court) only had supervisory and judicial review jurisdiction
over the decisions of the IEBC as provided for in Article 165 (3) (6) of the Constitution.

On the third issue, the court held that it could not exercise its appellate jurisdiction over matters
that were not addressed by the Court of Appeal and downed its tools as these three issues it had
ruled on were sufficient to resolve the appeal.

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The Dissenting Opinion of Justice D. K. Maraga, CJ & P

Maraga J in a thorough dissenting opinion highlighted seven issues;

On the question of jurisdiction, he established that the court had jurisdiction as the issues of
academic qualification and conduct of elections were issues requiring constitutional
interpretation.
On the question of burden and standard of proof in election petitions, Maraga J stated that the use
of the term “forgery” did not connote a criminal or quasi-criminal intent requiring proof beyond
reasonable doubt. It was an ordinary challenge of the validity of the appellant’s certificates
which in the law of electoral disputes, required proof to a standard higher than that of a balance
of probabilities but below beyond reasonable doubt.

On the question of whether the appellant possessed the requisite academic qualification to vie for
the position of County Governor, he affirmed the rulings of the High Court and Court of Appeal
concurring that the appellant did not have the requisite academic qualification to contest in the
election.

On the question of whether election courts have jurisdiction to entertain pre-election nomination
disputes, he propounded the following three reasons for why they do;

1. Elections are a process and ‘nominations or determinations of qualification to run are part
of the “continuum” consisting in “a plurality of stages” that make up an election.’ Since
the election court is tasked with the responsibility of auditing the entire electoral process
to determine its validity, it cannot be said to have lacked jurisdiction.
2. While the IEBC had the responsibility to determine pre-election nomination disputes it
was not its core mandate.
3. Dismissal for want of prosecution by the IEBC meant that the matter had not been
determined on merits and was not res judicata. As such, the Election Court’s still had
jurisdiction.
On the issue of whether the Deputy Governor’s election could stand on its own if the appellant
was not qualified to vie in the election, he found the proposition not supported in law.

On the issue of whether the Supreme Court had jurisdiction to determine issues left unresolved
by the Court of Appeal, he ruled in the affirmative. He reasoned that the doctrine of mootness

9
was not cast in stone as there were instances in which the Supreme Court could intervene and
rule on unresolved matters especially if such matters were of jurisprudential moment and
national importance.

The Dissenting Opinion of Lenaola,

SCJ Lenaola J dissented and highlighted on two issues;

On the issue of the jurisdiction of election courts to determine pre-election disputes, he argued
that the complaint previously lodged with the IEBC was not heard on merit and as such, the
Election Court had the residual jurisdiction to determine the question of qualification of the
petitioner to finality.

On the question as to whether the court could rule on matters unresolved by the Court of Appeal,
he was of the opinion that the Supreme Court had no such authority. He argued that the Supreme
Court performed an appellate role with regard to matters from the Court of Appeal and that
matters which were unresolved by the Court of Appeal could not properly lie before the Supreme
Court.

FIRM’S COMMENT/OPINION

It is the considered opinion of the firm that the judgement limits the jurisdiction of an election court
to what happens after an election begins and not facts in pre-election such as nominations. This is a
lamentable departure from the forward-thinking opinion of the court previously given in the case of
In the Matter of the Principle of Gender Representation in the National Assembly
and the Senate (2012) which at paragraph 100 described elections as ‘a process set in a plurality
of stages.’ Maraga J in his dissent opined that ‘nominations or determinations of qualification to
run are part of the “continuum” consisting in “a plurality of stages” that make up an election.

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PART FOUR PLAIN ENGLISH

Question 3

PLAIN ENGLISH

Under this Agreement, neither DEPOSITOR nor REAL GLOBAL shall be liable for failing to
discharge any duty, when caused by unforeseeable circumstances. If such an event occurs, the
affected party shall immediately notify the other party of the consequences of the cause. Where
the cause requires REAL GLOBAL to continue to protect the goods, DEPOSITOR must pay for
the same. All goods are handled and transported at DEPOSITOR’s risk.

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BIBLIOGRAPHY
CASE LAWS

Anarita Karimi Njeru vs Republic (1979) KLR 154

Fuste v Riverside Healthcare Association 256 Va. 127, 134 (2003)

In the Matter of the Principle of Gender Representation in the National Assembly and the
Senate 2012

Johnson Gacheru Ngigi v Inspector General of the National Police Service & another [2019] eKLR

Mohamed Abdi Mahamud V Ahmed Abdullahi Mohamad & 3 Others; Ahmed Ali Muktar
(Interested Party)

Wilfred Gisebe Gisebe & 2 others v County Government of Kisii and 2 others (2017)

eKLR Samura Engineering Ltd and 10 others vs Kenya Revenue Authority [2012] eKLR

STATUTES

The Constitution of Kenya, 2010;

The Criminal Procedure Code, Cap 75

The Defamation Act, Cap 36

The Elections Act, 2011

The Election Laws (Amendment) Act, 2017

The Election Regulations, 2011

The Evidence Act, 1963

The National Police Service Act, 2011;

The Penal Code, Cap 63

The Political Parties Act, 2011

The Supreme Court Act, 2011

The Supreme Court Rules, 2011

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