Josephine v Attorney General (Criminal Appeal 128 of 2009) [2015] KECA 407 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that Kenyan courts alone control property located in Kenya, even when it is jointly owned with an internationally wanted fugitive.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the High Court had jurisdiction to hear and entertain the Originating Notice of Motion dated 5th May 2008
- 2.whether the orders sought in the Originating Motion dated 5th May 2008 violate the appellant's right to private property under Section 75 of the Constitution
- 3.whether a cause of action is disclosed against the appellant
- 4.whether UN Security Council Resolutions are part of customary international law
- 5.whether UN Security Council Resolutions Nos. 955 of 1994; 978 of 1995; 1165 of 1998; 1503 of 2003 and 1534 of 2004 are applicable and enforceable in Kenya
- 6.whether the instant appeal is competent before this Court
Key legal issues
#Jurisdiction of the High Court over property situated in Kenya
The High Court has unlimited original jurisdiction over all persons and things, corporeal or incorporeal, found within Kenya; the joint ownership of the subject property with a fugitive is immaterial, and no foreign court including the ICTR has jurisdiction over Kenyan property.
The Court invoked the Supreme Court's holding in Samuel Kamau Macharia that jurisdiction flows only from the Constitution or legislation. Section 60 of the repealed Constitution conferred unlimited original jurisdiction over all persons and things in Kenya. Since House No. 6 on LR No. 1/1154 is in Nairobi, the High Court has jurisdiction regardless of whether the title is joint, and regardless of the owner's physical presence. The Court adopted the reasoning of the Gbao case that jurisdiction exercised is that of the Kenyan High Court itself, not that of the ICTR.
Whether the preservation orders violate the appellant's right to private property under Section 75
Whether a violation of private property rights has occurred is a question of fact requiring determination by the trial court after an inter partes hearing; it could not be resolved on a preliminary objection.
The Court observed that jurisdiction must first exist before any question of violation can be determined. Whether the freezing of rental income constitutes a taking under Section 75 depends on contested factual allegations - e.g. whether rental income was being used to finance a fugitive - which the High Court has not adjudicated. As an appellate court, the Court of Appeal cannot establish facts in the first instance. It therefore reserved the contested facts for determination by the High Court, expressly declining to prejudge the case.
Whether UN Security Council Resolutions are applicable and enforceable in Kenya
Chapter VII Security Council Resolutions bind Kenya internationally but are not self-executing and are not a source of Kenyan domestic law absent implementing legislation; they may be referred to only to determine rights and obligations under Kenyan law and to the extent not inconsistent with the Constitution or written law.
The Court surveyed monist and dualist theories, noting Kenya was dualist before 2010. It rejected the argument that the UN Charter is a statute of general application under the Judicature Act's 1897 cut-off. Drawing on local precedent (Rono v Rono; Kenya Airways v Auma), it held courts may resort to international customary law or ratified instruments to fill gaps or resolve ambiguity. The Resolutions themselves recognise the primacy of municipal law and require implementation in accordance with national law; the Constitution's supremacy clause cannot be overridden.
Whether Security Council Resolutions form part of customary international law
The respondent failed to demonstrate that the Resolutions in issue were declaratory of any principle of customary international law; the Court declined to find them part of international customary law.
The Court noted customary international law is established through state practice and, as with customary law in Kenya, must be proved as a fact by evidence. It distinguished between Resolutions that merely require conduct of member states and those declaratory of customary norms, observing that on a preliminary objection it would be hard to draw that distinction. There was no demonstrated consensus of state practice or jurisprudence that the Resolutions form part of customary international law.
Cause of action against the appellant and joint tenancy
The in rem allegations (use of rental income to evade capture; non-payment of taxes) prima facie disclose a cause of action attaching to the property; in the absence of evidence of severance, the co-owners' interests are presumed to be a joint tenancy that is indivisible and unseverable.
The title shows concurrent ownership with no indication of tenancy in common or tenancy in entirety; the legal presumption is joint tenancy, under which each owner holds everything and nothing. Severance requires breaking one of the four unities, proved by cogent evidence at trial, not by preliminary objection. Since the appellant does not challenge jurisdiction over Mr. Kabuga's interest, and her interest is concurrent with his, the High Court's jurisdiction extends to the entire property.
Competence of the Originating Motion and of the appeal
The Originating Motion complied in substance with the Masaba v R format and, where no specific format is prescribed by law, a Motion is permissible; the appeal was properly instituted because a Notice of Appeal was filed within time in a criminal matter.
Guided by Masaba v R, the Court found the Originating Notice of Motion compliant in substance. On the respondent's competency objection, the Court held that Rule 59(1) provides that a Notice of Appeal institutes the appeal in criminal matters; Rule 82, relied on by the respondent, concerns civil appeals. The appellant's Notice of Appeal filed on 8th July 2009 was within time, so the appeal was proper and competent.
Legal principles established
#- The High Court's jurisdiction over real property is dependent solely on the property being located within the geographical boundaries of the Republic of Kenya, irrespective of the type or mode of ownership or the presence of the registered owner.
- No court outside Kenya, including the ICTR, can have jurisdictional competence over property situated in Kenya.
- UN Security Council Resolutions made under Chapter VII of the UN Charter are binding on Kenya at the international plane but are not self-executing and are not a source of law in Kenya in the absence of implementing legislation; Kenyan courts may only refer to them to determine rights and obligations under Kenyan law, to fill gaps or ambiguities, and to the extent they are not inconsistent with the Constitution or written law.
- The UN Charter is not a statute of general application under Section 3 of the Judicature Act because the reception cut-off date is 12th August 1897 and the Charter is not an English statute.
- Where property is registered in more than one name and there is no contrary entry on the register, it is presumed to be held in joint tenancy; severance requires cogent evidence breaking one of the four unities and cannot be achieved by way of preliminary objection.
- A preliminary objection must be grounded on uncontroverted facts and settled principles of law; where facts are contested, it cannot succeed.
- In criminal matters, a Notice of Appeal institutes the appeal; leave requirements applicable to memoranda of appeal (Rule 82) relate to civil appeals.
Court orders
#- 1.The appeal is dismissed
- 2.The orders made on 30th June 2009 consolidating all applications pending before the High Court and directing the same to be heard inter partes are affirmed
- 3.The proceedings pending before the High Court between the parties are to be concluded taking into account Sections 6 and 7 of the Sixth Schedule and Article 2(5) and (6) of the 2010 Constitution
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Originating Notice of Motion dated 5th May 2008
- Jurisdiction invoked
- Appeal as of right to the Court of Appeal (criminal matter instituted by Notice of Appeal under Rule 59(1) of the Court's Rules); underlying dispute commenced under the repealed Constitution (Section 60) and the Geneva Convention Act, Cap 198
Relief refused
#Discharge of the ex-parte preservation orders of 6th May 2008 on the ground that the ICTR has ceased to exist
The appeal was dismissed in its entirety; the High Court's jurisdiction over property situated in Kenya is not dependent on the existence of the ICTR
Costs
No costs order is recorded in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
No court outside Kenya,including the ICTR, can have jurisdictional competence on property situated inKenya.
the said Security Council Resolutions are not a source of law in Kenya and are only applicable to the extent that Kenyan courts can make reference to them to determine rights and obligations under Kenyan law or where necessary to draw the court into the field of international law or to fill a gap or ambiguity where domestic law is ambiguous, uncertain or totally lacking.
A preliminary objection must be grounded upon uncontroverted facts and well established and settled principles of law; if the applicable principles of law are arguable, uncertain and not settled a preliminary objection cannot succeed.
In the absence of evidence, the legal presumption remains that a property registered in joint names is indivisible and not severable.
we find that the learned judge did not err in dismissing the appellant's preliminary objection dated 28th July 2008. We afirm the orders made on 30th June 2009 consolidating all applications pending before the High Court and directing the same to be heard inter partes. This appeal has no merit and is hereby dismissed.
we direct that the proceedings now pending before the High Court between the parties hereto be concluded taking into account Sections 6 and 7 of the Sixth Schedule and Article 2 (5) and (6) o f the 2010 Constitution.
Issues in the judgment
#The grant of leave to appeal is inconsistently dated within the judgment
The text of the ruling of Apondi, J. quoted in the judgment contains obvious transcription/corruption errors in its final orders passage
Several passages of the judgment contain corrupted text affecting the accuracy of quotations
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- M’Ringera & 4 others v Mutea & 2 others (Environment and Land Appeal E039 of 2026) [2026] KEELC 4399 (KLR)[2026] KEELC 4399 (KLR)2 Jul 2026applied
- Bwire (Suing as personal representative of the Estate of Pamphilian Akumu Magina) v Mujanja & 3 others (Environment and Land Case 62 of 2018) [2026] KEELC 1943 (KLR)[2026] KEELC 1943 (KLR)9 Apr 2026
- Joseph Kirimi M'Mbwiria & Another v Defendants18 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Josephine v Attorney General (Criminal Appeal 128 of 2009) [2015] KECA 407 (KLR)", Case Analysis (2015). Criminal Appeal (not expressly numbered in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/407/eng@2015-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.