Criminal lawRuth Rotich & Company AdvocatesDEFINITION OF VICTIMS IN A CRIMINAL TRIAL

INTRODUCTION
In this case Odhiambo v Attorney General & 2 others; Nyanchoga (Interested Party) (Petition E400 of 2021) [2024] KEHC 354 (KLR) ;

The petitioner sought for:-
A declaration that the definition of “victim” under section 2 of the Victim Protection Act was unconstitutional for not providing for the protection, rights and welfare of all victims of criminal offences such as companies, associations or other body of persons whether incorporated or unincorporated who were recognized as persons under the Constitution.

A declaration that section 13 of the Victim Protection Act was unconstitutional to the extent that it limited the rights of juristic persons to challenge or add any evidence in criminal proceedings in which they were the complainants thus rendering such trial unfair and detrimental to the administration of justice.

The petitioner asserted that the Victim Protection Act was enacted to give effect to article 50(9) of the Constitution to provide the protection of victims of crime and abuse of power. It was the petitioner’s case that section 2 of the Victim Protection Act which restricted the definition of “victim” to natural persons was discriminative against persons who were not natural persons. Further that the definition contravened the rights and fundamental freedoms of juristic persons recognized as such under article 260 of the Constitution as persons. It was therefore the Petitioner’s contention that non-natural persons were exposed to serious threats of violation of their rights and freedoms.

It was held that:-

Section 2 of the Victim Protection Act defined “victim” as meaning any natural person who suffered injury, loss or damage as a consequence of an offence. Section 4 of the Victim Protection Act listed the general guiding principles in the application of the Act.

Article 10 of the Constitution provided for national values and principles of governance which bound every person and entity whenever any of them applied or interpret , enacted, applied or interpreted any law, or made or implemented public policy decisions. Human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized must be upheld.

Article 27(1) of the Constitution provided that every person was equal before the law and had the right to equal protection and equal benefit of the law. Discrimination is prohibited on any ground.

A court, administrative body or a person performing any function under the Victim Protection Act was required to respect and uphold the right of every person to a fair trial under article 47 of the Constitution, the right to a fair trial under article 48 of the Constitution and the rights of arrested persons as well as the right not to be discriminated against. Every person is equal before the law.

From a reading of section 3 of the Victim Protection Act, recognizing and giving effect to the rights of victims of crime could apply to both natural and juristic persons. Similarly, protection of the dignity of victims through provision of better information, support services, reparations and compensation from the offender, establishment of programs to assist vulnerable victims, supporting reconciliation by means of a restorative justice response, among others could also apply to juristic persons. That was because juristic persons especially companies were also often victims of offences such as theft by servant, stealing, arson, malicious injury to property, rioters injuring building or machinery, forcible entry among others. As such, they also needed protection of the law.

There was no justifiable reason why juristic persons should not also be protected under the provisions of the Victim Protection Act.

The denial of rights of victims of offences just because they were juristic and not natural persons, amounted to unfair discrimination. The unjust or prejudicial distinction in the treatment of different categories of victims is against the equality and non-discrimination values and principles in the Constitution.

A proper interpretation of article 50(9) of the Constitution was that the envisaged legislation therein providing for the protection, rights and welfare of victims of offences applied to all victims of offences, without discrimination.

Article 1 of the Constitution provided that all sovereign power belonged to the people of Kenya. Sovereign power at the national level was delegated to the Legislature, the Executive and the Judiciary. T

Legislative authority was vested in Parliament under article 94(1) of the Constitution. Parliament must therefore be allowed to discharge its legislative mandate without interference by other arms of Government.

The purpose of the Victim Protection Act was to protect the rights and welfare of victims of offences. As such, Parliament ought to have taken a broader view of the impact of offences upon all victims thereof and extended the definition of “victim” to include non-natural persons. The Petition was allowed.

FINAL ORDERS
A declaration was issued that that the definition of “victim” under section 2 of the Victim Protection Act, was unconstitutional for not providing for the protection, rights and welfare of all victims of criminal offences such as companies, associations or other body of persons whether incorporated or unincorporated who were recognized as persons.

A clarion call was made to upon Parliament to amend the Victim Protection Act so that the definition of “victim” is in line with the Constitution and to section 5 of the Victim Protection Act.

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