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Muasya Mwania V Republic [2016] eKLR

Case Number: Criminal Appeal 67 of 2015 Date Delivered: 29 Sep 2016

Judge: Lilian Nabwire Mutende

Court: High Court at Kitui

Parties: Muasya Mwania v Republic

Citation: Muasya Mwania V Republic [2016] eKLR

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Josephine Juma Ouma V Republic [2016] eKLR

Case Number: Criminal Appeal 61 of 2016 Date Delivered: 29 Sep 2016

Judge: James Aaron Makau

Court: High Court at Siaya

Parties: Josephine Juma Ouma v Republic

Citation: Josephine Juma Ouma V Republic [2016] eKLR

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Wesonga Lusaka V Philip Khamala Joseph [2016] eKLR

Case Number: Civil Appeal Case 57 of 2010. Date Delivered: 29 Sep 2016

Judge: Samwel Ndungu Mukunya

Court: High Court at Bungoma

Parties: Wesonga Lusaka v Philip Khamala Joseph

Citation: Wesonga Lusaka V Philip Khamala Joseph [2016] eKLR

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H A O & Another V George Oduor [2016] eKLR

Case Number: Petition 3 of 2016 Date Delivered: 29 Sep 2016

Judge: Esther Nyambura Maina

Court: High Court at Kisumu

Parties: H A O & C N v George Oduor

Citation: H A O & Another V George Oduor [2016] eKLR

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Thomas Omondi V Tom Nelson [2016] eKLR

Case Number: Cause 272 of 2015 Date Delivered: 29 Sep 2016

Judge: James Rika

Court: Environment and Land Court at Mombasa

Parties: Thomas Omondi v Tom Nelson

Citation: Thomas Omondi V Tom Nelson [2016] eKLR

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Patrick Owino Okumu V Republic [2016]eKLR

Case Number: Criminal Appeal 177 of 2015 Date Delivered: 29 Sep 2016

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Patrick Owino Okumu v Republic

Citation: Patrick Owino Okumu V Republic [2016] eKLR

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Daniel Otieno Awuor V Hardware Trading Stores Ltd & Another [2016] eKLR

Case Number: Civil Appeal 92 of 2010 Date Delivered: 29 Sep 2016

Judge: Janet Nzilani Mulwa

Court: High Court at Nakuru

Parties: Daniel Otieno Awuor V Hardware Trading Stores Ltd & Douglas Gitonga Mathenge

Citation: Daniel Otieno Awuor V Hardware Trading Stores Ltd & Another [2016] eKLR

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Daniel Musau Kimeuappellant V John Maloli Kituku [2016] eKLR

Case Number: Civil Appeal 183 of 2012 Date Delivered: 29 Sep 2016

Judge: Joseph Kiplagat Sergon

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Daniel Musau Kimeuappellant v John Maloli Kituku

Citation: Daniel Musau Kimeuappellant V John Maloli Kituku [2016] eKLR

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John Kaigai Kamuri V Republic [2016] eKLR

Case Number: Criminal Appeal 80 of 2015 Date Delivered: 29 Sep 2016

Judge: Abigail Mshila

Court: High Court at Murang'a

Parties: John Kaigai Kamuri v Republic

Citation: John Kaigai Kamuri V Republic [2016] eKLR

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Geoffrey Nyongesa V Republic [2016] eKLR

Case Number: Criminal Appeal 25 of 2015 Date Delivered: 29 Sep 2016

Judge: Stephen Mururgu Githinji

Court: High Court at Kapenguria

Parties: Geoffrey Nyongesa v Republic

Citation: Geoffrey Nyongesa V Republic [2016] eKLR

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Stan Musyoka Manthi V Amina Abdi [2016] eKLR

Case Number: Civil Appeal 553 of 2003 Date Delivered: 29 Sep 2016

Judge: Amraphael Mbogholi-Msagha

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Stan Musyoka Manthi v Amina Abdi

Citation: Stan Musyoka Manthi V Amina Abdi [2016] eKLR

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Kenya Power & Lighting Co. Ltd V Micheal Murewe & Another [2016] eKLR

Case Number: Civil Appeal 21 of 2015 Date Delivered: 29 Sep 2016

Judge: James Aaron Makau

Court: High Court at Siaya

Parties: Kenya Power & Lighting Co. Ltd v Micheal Murewe & Attorney General

Citation: Kenya Power & Lighting Co. Ltd V Micheal Murewe & Another [2016] eKLR

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Justus Kimeli Rotich V Governor, County Government Of Nandi & 2 Others [2016] eKLR

Case Number: Petition 7 of 2014 Date Delivered: 29 Sep 2016

Judge: Cecilia Wathaiya Githua

Court: High Court at Eldoret

Parties: Justus Kimeli Rotich v Governor, County Government of Nandi, Nandi County Public Service Board & Silas Kipruto

Citation: Justus Kimeli Rotich V Governor, County Government Of Nandi & 2 Others [2016] eKLR

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Erick Githua Kiarie V Attorney General & 2 Others [2016] eKLR

Case Number: Petition 19 of 2014 Date Delivered: 29 Sep 2016

Judge: Cecilia Wathaiya Githua

Court: High Court at Eldoret

Parties: Erick Githua Kiarie v Attorney General,Cabinet Secretary for Education & Cabinet Secretary for Labour, Social Security and Services

Citation: Erick Githua Kiarie V Attorney General & 2 Others [2016] eKLR

Children held in detention facilities have the right to free and compulsory basic education

Erick Githua Kiarie v Attorney General & 2 others

Petition No. 19 of 2014

High Court of Kenya at Eldoret

C.W. Githua, J

   September 29, 2016

Reported By Teddy Musiga & Winnie Matiri

 

Constitutional Law- Bill of Rights- fundamental rights and freedoms- right to education- the right of every child to free and compulsory education- enforcement of the right to free and compulsory basic education- realization of the right to free and compulsory basic education for children held in detention facilities- Constitution of Kenya, 2010 article 53(1)(b) & 43(1)(f); Basic Education Regulations 2015, section 29; The Children Act, section 7; The International Covenant on Economic, Social and Cultural Rights (ICESR) article 13(1) & Universal Declaration of Human Rights (UDHR) article 26.

Constitutional Law- Bill of Rights- fundamental rights and freedoms- enforcement of fundamental rights and freedoms- right of a child to free and compulsory basic education- limitation of the right of a child to free and compulsory basic education- constitutional threshold for limitation of rights- whether the limitation of the right of children to basic and compulsory education for the reasons given met the constitutional threshold for the limitation of rights- Constitution of Kenya, 2010 articles 53(1)(b) & 24.

Constitutional Law- Bill of Rights- fundamental rights and freedoms- Implementation of fundamental rights and freedoms- immediate and progressive realisation of rights- minorities and marginalised groups- detention facilities- jail for children under the age of 18- whether children in detention facilities fell in the category of minority and marginalized groups and therefore their right to basic education was not an immediate right but one that should be realized progressively- Constitution of Kenya, 2010 article 56.

 

Brief Facts

The Petitioner filed the petition on behalf of minors remanded at the Kapsoya Juvenile remand home (KJRH) and children held in other detention facilities on grounds that the state had violated their constitutional rights especially the right to free and compulsory basic education guaranteed by the Constitution of Kenya 2010, The Basic Education Act and the Children Act.

The Petitioner contended that although the KJRH was established to act as a committal institution for children in conflict with the law, it also housed children in need of care and protection which included children with disabilities; that the 2nd and 3rd Respondents had failed to put in place mechanisms to facilitate access to education for children in the remand home which contravened the right to free and compulsory basic education guaranteed to all children by the Constitution under article 53 and the law. The Petitioner asserted that these children’s right against discrimination under article 27 was also violated as other children who were not in custody were getting education.

The Respondents argued that the right to basic education was not absolute and could be limited under article 24 of the Constitution; that the right flowed from the right to liberty; that under section 50 of the Children’s Act and the fifth schedule thereto, the right to liberty for children in conflict with the law was curtailed through remand orders issued by the court; and that the right to basic education for such children was limited for the period of their detention. They further argued that children in detention centres fell under the category of minorities and marginalized groups and that therefore their right to basic education should be realized progressively.

Issues

  1. Whether the 2nd and 3rd Respondent’s failure to offer or facilitate formal education to children held at the KJRH and by extension other detention facilities in the country contravened their constitutional right to free and compulsory basic education.
  2. What orders were appropriate to remedy a breach (if any) of contravention of the constitutional right to basic education to detained children
  3. Whether the limitation of the right of children to basic and compulsory education for the reasons given met the constitutional threshold for the limitation of rights as provided for under article 24 of the Constitution.
  4. Whether children in detention facilities fell in the category of minority and marginalized groups and therefore their right to basic education was not an immediate right but one that should be realized progressively.

 

Relevant provisions of the Law

Constitution of Kenya, 2010

Article 24

(1). A right or fundamental freedom in the Bill of rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-

 (a) the nature of the right or fundamental freedom;

 (b) the importance of the purpose of the limitation;

 (c) the nature and extent of the limitation

 (d) the need to ensure that the enjoyment of rights and  Fundamental freedoms by any individual does not Prejudice the rights and fundamental freedoms of others; and

  (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

Article 25

Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited-

 (a) “Freedom from torture and cruel, inhuman or degrading treatment or punishment.

 (b) Freedom from slavery or servitude

 (c) The right to a fair trial and      

 (d) The right to an order of habeas corpus.

The Children Act

Section 7

i Every child shall be entitled to education the provision of which shall be the responsibility of Government and the parents.

 ii Every child shall be entitled to free basic education which shall be compulsory in accordance with Article 28 of the United Nations Convention on the Rights of the child”.

Section 7(ii) 1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:

  (a)  Make primary education compulsory and available free to all;

 (b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;

 (c) Make higher education accessible to all on the basis of capacity by every appropriate means;

  (d) Make educational and vocational information and guidance available and accessible to all children;

 (e) Take measures to encourage regular attendance at schools and the reduction of drop - out rates….”

 

Held

  1. Under article 43 (1) (f) of the Constitution, the right of every person to education was enshrined as part of the economic and social rights enumerated therein but the Constitution did not stop there. It proceeded further to specifically provide for the right of children to basic education by declaring under article 53 (1) (b) that every child had the right to free and compulsory basic education.
  2. To give effect to the right to free and compulsory basic education, the Basic Education Act No. 14 of 2013 (the Act) was enacted with one of its purposes being to promote and regulate free and compulsory basic education. Section 28 of the Act required the Cabinet Secretary responsible for basic education and training to implement the right of every child to free and compulsory education. Section 29 of the Act proceeded to provide the different ways which the 2nd Respondent should employ to ensure that all children were afforded free and compulsory education.
  3. The Children Act Chapter 141 of the Laws of Kenya which according to its preamble was enacted to give effect to Kenya’s treaty obligations in the convention on the Rights of the Child and the African Charter on the Rights and welfare of the child and other connected purposes also secured the right of children to free and compulsory basic education.  Article 28 of the United Nations Convention on the Rights of the Child was incorporated in section 7 (ii) of the Children Act.
  4. Other key international instruments ratified by Kenya which obligated state parties to provide free and compulsory basic education were the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic Social and Cultural Rights (ICESR) which identified education as a means to ensure full development of the human personality and dignity.  In this regard, article 13 (1) of the ICESCR provided that the state parties to the present covenant recognized the right to everyone to education.  They agreed that education should be directed to the full development of the human personality and the sense of its dignity, and should strengthen the respect for human rights and fundamental freedoms.
  5. The UDHR also recognized the right to free and compulsory basic education. Article 26 of the UDHR stated that everyone had the right to education, that education should be free, at least in the elementary and fundamental stages and that elementary education should be compulsory. All international instruments form part of the laws of Kenya by virtue of article 2(5) and (6) of the Constitution.
  6. The central role that education played in driving societal change and in empowering people to realize their full potential could not be gainsaid. The right to education had not only been recognized as a basic human right but also as one which was essential for the enjoyment of all other human rights. The importance of the right in shaping people’s lives was captured by the committee on Social, Economic and Cultural rights in General comment No. 13 on the right to education guaranteed under article 13 of the ICESCR in the terms that  education was both a human right in itself and an indispensable means of realizing other human rights. 
  7. As an empowerment right, education was the primary vehicle by which economically and socially marginalized adults and children could lift themselves out of poverty and obtain the means to participate fully in their communities. Education had a vital role in empowering women, safeguarding children from exploitative and hazardous labour and sexual exploitation, promoting human rights and democracy, protecting the environment, and controlling population growth.  Increasingly, education was recognized as one of the best financial investments states could make.  But the importance of education was not just practical; a well-educated, enlightened and active mind, able to wander freely and widely, was one of the joys and rewards of human existence.
  8. Under article 21(1) of the Constitution, the state and all state organs had an obligation to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights which included the right of all children to free and compulsory basic education. And under article 3 thereof, every person had an obligation to respect, uphold and defend the Constitution.
  9. The people of Kenya in promulgating the Constitution of Kenya 2010 decided that of all the rights and freedoms that were guaranteed in the Constitution, only four of those rights and freedoms should be absolute; that all the other rights would be subject to limitation but only to the extent and circumstances permitted by article 24 of the Constitution. 
  10. The right of children to free and compulsory basic education could be limited under article 24 of the Constitution. Under article 24(3) of the Constitution, the burden of demonstrating to the Court, tribunal or other authority that the requirements warranting the limitation of a right under article 24(1) of the Constitution had been satisfied, fell on the state or on the person seeking to justify a particular limitation.
  11. The Respondent’s failure to offer basic education to the children at K J R H or any other remand facility constituted a limitation on their right to free and compulsory education.  The question that arose was whether the said limitation for the reasons given met the constitutional threshold for the limitation of rights as provided for under article 24 of the Constitution.
  12. The first test under article 24 of the Constitution was whether the limitation in question was prescribed by the law.  That meant that the limitation had to be expressly contained in a statute.  It was only after the limitation passed the first test that the Court would be called upon to consider if it was reasonable and justifiable in a free and democratic society taking into account all the relevant factors spelt out in the article,  that was , the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the need to balance the rights and freedoms of an individual against the rights of the others, the relation between the limitation and its purpose and whether there were less restrictive means to achieve the purpose.
  13. Section 57 of the Children Act empowered the Court to issue committal orders remanding children to remand homes. Section 50 only established Children Remand Homes.  There was no limitation express or otherwise in the provision limiting the right of children held in remand homes to basic education.  The provision stated that the order committing a child to custody in a children’s remand home or ordering him to be sent to a rehabilitation school should be sufficient authority for his confinement in that place in accordance with the tenor thereof, or in a health institution under section 56, and a child while confined and while being conveyed to or from a children’s remand home or a rehabilitation school to or from a health institution, as the case might be, should be deemed to be in lawful custody.
  14. There was no substance in the Respondent’s submission that the children’s right to basic education was dependent on their liberty; that once their liberty was taken away by a committal order to a remand home that right was limited by article 51 of the Constitution for the period of their detention. Article 51of the Constitution in so far as was relevant for purposes of the petition were in the terms that a person who was detained, held in custody or imprisoned under the law, retained all the rights and fundamental freedoms in the Bill of Rights, except to the extent that any particular right or a fundamental freedom was clearly incompatible with the fact that the person was detained, held in custody or imprisoned.           
  15. Persons, who included children in legal custody, retained all their rights and fundamental freedoms in the Bill of Rights unless any particular right was incompatible with their detention. The Respondents did not demonstrate how the right to basic education for children held in detention centres, were incompatible with the fact of their detention.
  16. The expected period of stay of children in remand homes which the Respondent described as short but which was long in terms of the school calendar (between one and three school terms considering that a child was to be discharged if after one year, the case was still pending) could not be said to be incompatible with the right to basic education for two main reasons: First, remand homes were permanent institutions and nothing would prevent the 2nd Respondent in conjunction with the 3rd Respondent to initiate and offer basic education to the children in remand homes at any given time for the duration of their detention.  Secondly, offering education to such children would be appropriate and of great benefit so that when they were either acquitted or reunited with their families or placed in other institutions (for children in need of care and protection), they would be able to continue with their education and catch up with their peers.
  17. Moreover, if the fact of detention of children was incompatible with learning, the 2nd Respondent would not have enacted in section 29 of the Basic Education Regulations of 2015 that learners of school going age residing in children’s homes, borstal institutions or other corrective facilities should be provided with basic education and training to enforce their right to education as guaranteed by several constitutional provisions.
  18. The reason given by the Respondents to justify their failure to offer basic education to detained children, that was, their alleged short stay in detention was not backed by any statutory provision. The Respondents had therefore failed to satisfy the first test set under article 24 of the Constitution for the limitation of constitutional rights.  They had failed to demonstrate that the constitutional right of children held in detention facilities in the country to access free and compulsory basic education was limited by any law.
  19. It was not necessary to proceed to the next step of considering whether the limitation by the Respondents was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom taking into account all the relevant factors set out in article 24 (1) (a) and (b) of the Constitution. The constitutional right of children to free and compulsory basic education enshrined under article 53 (1) (b) of the Constitution should not be limited in any way in a civilized and democratic society like the one in Kenya taking into account the nature of that right and its importance.
  20. Children and the youth were the future of any country and it was only education when imparted at the right time that would enable them live a dignified and fulfilling life in future and to positively contribute to the economy of the country. Under article 20 of the Constitution, courts were enjoined to interpret the Bill of Rights in a way that ensured that a person enjoyed the rights and fundamental freedoms enshrined therein to the greatest extent consistent with the nature of the right or fundamental freedom and to adopt an interpretation that most favoured the enforcement of a right or fundamental freedom.
  21. The framers of the Constitution in providing for the right of children to free and compulsory basic education intended to have the right afforded to children wherever they were irrespective of their circumstances. That was why for children, the Constitution specifically provided for basic education that was free and compulsory as opposed to the plain right of education granted to any person under article 43 1 (f). The fact of detention could not override the constitutional guarantee to children of access to basic education. The Respondent’s failure to offer or facilitate free and compulsory basic education to children detained at KJ R H was unlawful as it contravened the provisions of the Children Act and the Basic Education Act and was also unconstitutional as it violated article 53 (1) (b) of the Constitution.
  22. The right of children to free and compulsory basic education was immediate and was not subject to progressive realization under article 21 (2) of the Constitution since it was not one of the social economic rights guaranteed under article 43 of the Constitution. The right to basic education was not to be progressively realized. That right was to be enjoyed now and to argue otherwise would be to cheapen the Constitution and even in a society where we lived with great wealth disparities and millions wallowing in abject poverty, only education could give everyone the chance and opportunity to realize their dream and aspirations. That opportunity was not granted in the circumstances obtaining in the Petition.
  23. Children in detention facilities did not fall within the category of minority and marginalized groups provided for under article 56 of the Constitution. They were just children who for some reason found themselves in conflict with the law or in need of care and protection but who still enjoyed the right to equal protection and benefit of the law.

Petition allowed.

 (i) An order compelling the 2nd and 3rd Respondents to make available to children in KJRH and all other children in detention facilities, educational programs which were integrated with the public education system.

 (ii) That the 2nd Respondent, in consultation with the 3rd Respondent develop a policy within the next 120 days clearly setting out a comprehensive framework through which basic education would be provided to children detained at KJRH and all other detention facilities in Kenya.

 (iii) That the 2nd respondent file an affidavit within 120 days of the judgment’s date detailing the policy measures put in place to offer basic education to children held at K J R H and other detention facilities in the country.

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Peter Mwangi Maina V Equator Bottlers Limited [2016] eKLR

Case Number: Cause 297 of 2015 Date Delivered: 29 Sep 2016

Judge: Maureen Onyango Atieno

Court: Employment and Labour Relations Court at Kisumu

Parties: Peter Mwangi Maina v Equator Bottlers Limited

Citation: Peter Mwangi Maina V Equator Bottlers Limited [2016] eKLR

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David Kanyita Nyoro V Republic [2016] eKLR

Case Number: Criminal Appeal 107 of 2015 Date Delivered: 29 Sep 2016

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: David Kanyita Nyoro v Republic

Citation: David Kanyita Nyoro V Republic [2016] eKLR

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Teresia Wanjiru V Republic [2016] eKLR

Case Number: Criminal Appeal 27 of 2016 Date Delivered: 29 Sep 2016

Judge: George Matatia Abaleka Dulu

Court: High Court at Garissa

Parties: Teresia Wanjiru v Republic

Citation: Teresia Wanjiru V Republic [2016] eKLR

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Gabriel Smith Otieno Awiti V Homabay County Assembly & Another [2016] eKLR

Case Number: Petition 27 of 2015 Date Delivered: 29 Sep 2016

Judge: Maureen Onyango Atieno

Court: Employment and Labour Relations Court at Kisumu

Parties: Gabriel Smith Otieno Awiti v Homabay County Assembly & County Assembly Service Board

Citation: Gabriel Smith Otieno Awiti V Homabay County Assembly & Another [2016] eKLR

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Irene Moraa Momanyi V Republic [2016] eKLR

Case Number: Criminal Appeal 24 of 2016 Date Delivered: 29 Sep 2016

Judge: Winfrida Adhiambo Okwany

Court: High Court at Kisii

Parties: Irene Moraa Momanyi v Republic

Citation: Irene Moraa Momanyi V Republic [2016] eKLR

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Otieno Ragot & Co Advocates V Kenindia Assurance Co Limited [2016] eKLR

Case Number: Miscellaneous Cause 199 of 2015 Date Delivered: 29 Sep 2016

Judge: Esther Nyambura Maina

Court: High Court at Kisumu

Parties: Otieno Ragot & Co Advocates v Kenindia Assurance Co Limited

Citation: Otieno Ragot & Co Advocates V Kenindia Assurance Co Limited [2016] eKLR

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Rufus Kiuna Kungu & Another V Francis Njue Nyaga [2016] eKLR

Case Number: Civil Appeal 163 of 2013 Date Delivered: 29 Sep 2016

Judge: Beatrice Thuranira Jaden

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Rufus Kiuna Kungu & Geoffrey Kariuki Njuguna v Francis Njue Nyaga

Citation: Rufus Kiuna Kungu & Another V Francis Njue Nyaga [2016] eKLR

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Amos Kiluyi Simiyu V Augustine Masinde & Another [2016] eKLR

Case Number: Environment and Land Case 124 of 2013 Date Delivered: 29 Sep 2016

Judge: Samwel Ndungu Mukunya

Court: Environment and Land Court at Bungoma

Parties: Amos Kiluyi Simiyu v Augustine Masinde & Priscilah Asami

Citation: Amos Kiluyi Simiyu V Augustine Masinde & Another [2016] eKLR

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Ezekiel Mosomi Nyakundi V Adix Plastics Limited [2016] eKLR

Case Number: Cause 522 of 2015 Date Delivered: 29 Sep 2016

Judge: Hellen Wasilwa Seruya

Court: Employment and Labour Relations Court at Nairobi

Parties: Ezekiel Mosomi Nyakundi v Adix Plastics Limited

Citation: Ezekiel Mosomi Nyakundi V Adix Plastics Limited [2016] eKLR

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Humphrey Barasa V Republic [2016] eKLR

Case Number: Criminal Appeal 43 of 2015 Date Delivered: 29 Sep 2016

Judge: Weldon Kipyegon Korir

Court: High Court at Busia

Parties: Humphrey Barasa v Republic

Citation: Humphrey Barasa V Republic [2016] eKLR

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Timau Farmers Company Ltd & Another V John Gathogo & 6 Others [2016] eKLR

Case Number: Civil Case 7 of 2015 Date Delivered: 29 Sep 2016

Judge: Mary Muhanji Kasango

Court: High Court at Nanyuki

Parties: Timau Farmers Company Ltd & Joshua Marete Kiambati V John Gathogo, Peter Nganga Mbugua, M’lingera M’nitari, John Kiunjuri Kamau, Irene Wanjiku Kanyari, Joseph Ndiangui Watuthu & Monica Gitonga

Citation: Timau Farmers Company Ltd & Another V John Gathogo & 6 Others [2016] eKLR

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Mohamed Kingori Weru V Republic [2016]eKLR

Case Number: Criminal Appeal 114 of 2015 Date Delivered: 29 Sep 2016

Judge: George Matatia Abaleka Dulu

Court: High Court at Garissa

Parties: Mohamed Kingori Weru v Republic

Citation: Mohamed Kingori Weru V Republic [2016] eKLR

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Otieno Ragot And Co. Advocates V Kenindia Assurance Co. Limited [2016] eKLR

Case Number: Miscelenaous Cause 78 of 2015 Date Delivered: 29 Sep 2016

Judge: Esther Nyambura Maina

Court: High Court at Kisumu

Parties: Otieno Ragot and Co. Advocates v Kenindia Assurance Co. Limited

Citation: Otieno Ragot And Co. Advocates V Kenindia Assurance Co. Limited [2016] eKLR

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Imara Steel Mills Ltd V Heritage Insurance Co. Kenya Ltd & 38 Others [2016] eKLR

Case Number: Civil Suit 8 of 2015 Date Delivered: 28 Sep 2016

Judge: Reuben Nyambati Nyakundi

Court: High Court at Kajiado

Parties: Imara Steel Mills Ltd v Heritage Insurance Co. Kenya Ltd,Sila Nzioka & 37 others

Citation: Imara Steel Mills Ltd V Heritage Insurance Co. Kenya Ltd & 38 Others [2016] eKLR

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Erastus Mwaniki Gichobi & Another V Republic [2016] eKLR

Case Number: Criminal Appeal Case 100 & 101 of 2013 (Consolidated) Date Delivered: 28 Sep 2016

Judge: Robert Kipkoech Limo

Court: High Court at Kerugoya

Parties: Erastus Mwaniki Gichobi & Elijah Mugo Murimi v Republic

Citation: Erastus Mwaniki Gichobi & Another V Republic [2016] eKLR

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N L S V B R P [2016] eKLR

Case Number: Civil Case 3 of 2015 Date Delivered: 28 Sep 2016

Judge: Said Juma Chitembwe

Court: High Court at Malindi

Parties: N L S v B R P

Citation: N L S V B R P [2016] eKLR

A simple friendship which leads to the birth of the child cannot suffice to presume marriage

N L S v B R P

Civil Case No. 3 of 2015

High Court of Kenya at Malindi

SJ Chitembwe, J

September 28, 2016

Reported by Teddy Musiga and Mercy Cherotich

 

Family Law – marriage – presumption of marriage – marriage by habit and repute – where the parties had a relationship leading to the birth of a child – where the parties lived together in a house owned by one of the parties -what were the prerequisites for presumption of marriage - whether a relationship which led to the birth of a child was sufficient to warrant a presumption of marriage.

Family law-marriage-matrimonial property- whether matrimonial property could arise where there was no proof of marriage

Words and phrases –marriage– meaning of “marriage”- the legal union of a couple as husband and wife  Black’s Law Dictionary 9th, edition

Words and phrases – marriage by habit and repute – meaning of “marriage by habit and repute”- an irregular marriage created by cohabitation that implies mutual agreement to be married  Black’s Law Dictionary 9th, edition

Words and phrases – presumption – meaning of “presumption”- a legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts  Black’s Law Dictionary 9th, edition

 

Brief facts

The Plaintiff sought a declaration that the relationship between her and the defendant be presumed to be a marriage by cohabitation and repute and further that the suit property be declared matrimonial property. The Plaintiff also sought a permanent injunction restraining the Defendant from selling, evicting and denying access to the Plaintiff.

It was alleged by the Plaintiff that the Plaintiff and Defendant met in April 2010, they fell in love and the Defendant declared to her that he would take her as his wife in the presence of her parents and other family members. The two then held themselves out to the public as husband and wife and the Plaintiff performed her wifely duties and the Defendant as a husband provided for their matrimonial and basic needs.  The Defendant frequented Kenya from Europe three to four times annually and in his absence the Plaintiff remained faithful.

During the visits the Defendant bought the suit property. The Plaintiff also averred that she sold off all her movables amounting to a sum of Kshs.1.2 Million, which amount was included in the purchase of the suit property.

The defendant denied the allegations by the Plaintiff and averred that the Court had no jurisdiction to hear and determine the matter.

Issues

        i.            Whether a relationship which led to the birth of a child was sufficient to warrant a presumption of marriage.

      ii.            Whether matrimonial property could arise where there was no proof of marriage.

iii.            What were the prerequisites for presumption of marriage?

    iv.            Whether presumption of marriage could be applied retrospectively to accommodate a union that commenced before the application of the Marriage Act.

 Held

1. The Court cannot move any inch in a matter if it lacks jurisdiction. The Defendant did not however demonstrate the court’s lack of jurisdiction nor submit on it. The prayers sought by the Plaintiff were within the court’s mandate under the Matrimonial Property Act.  The Court had jurisdiction to deal with the matter.  The property was also bought for over Kshs.20 million which fell outside the Chief Magistrate’s pecuniary jurisdiction.

2. The parties allegedly begun their relationship in 2010 hence the Marriage Act, 2014 (the Act) would not apply for the purposes of determining their union save for the transitional provision in Section 96 of Act.  The definition of marriage under the Act however was in tandem with Black’s law dictionary. Under section 3 (1) the Act provided that, Marriage was the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with the Act. The essentials of a valid marriage according to Black’s law dictionary are;

a.     parties legally capable of contracting to marry

b.     mutual consent or agreement and

c.     an actual contracting in the form prescribed by law.

Article 45 (2) of the Constitution provided for the right to marry a person of the opposite sex based on the free consent of the parties.

3. Under section 44 of the Marriage Act, a notification of the customary marriage ought to have been made within three months of the marriage in the absence of which there was no marriage. The alleged marriage allegedly took place in 2010 and the Act commenced in 2014 hence its provisions could not all apply to the alleged marriage.

4. Under section 2 of the Marriage Act, to cohabit means to live in an arrangement in which an unmarried couple lived together in a long-term relationship that resembled a marriage. Before a presumption of marriage could arise a party needed to establish long cohabitation and acts of general repute. Long cohabitation is not mere friendship or that the woman iss not a mere concubine but that the long cohabitation had crystallized into a marriage and it was safe to presume the existence of a marriage. Since the presumption was in the nature of an assumption it was not imperative that certain customary rites be performed.

5. In cohabitation, two essentials had to be present, the legal capacity to contract a marriage and consent. Long cohabitation as man and wife gave rise to a presumption of marriage; only cogent evidence to the contrary could rebut such a presumption. The presumption was nothing more than an assumption rising out of long cohabitation and general repute that the parties had been married irrespective of the nature of the marriage actually contracted.

6. The Defendant denied that there was cohabitation for the purposes of a presumption of marriage hence the burden was on him to disprove. If a man and woman cohabit and hold themselves out as husband and wife, that in itself raises a presumption that they are legally married and when it is challenged, the burden lies on those challenging it to prove that there was in fact no marriage, and not upon those who rely on it to prove that it was solemnized.

7.      The presumption of marriage was a presumption of fact.  The Blacks’ law Dictionary stated that a presumption of fact is a presumption that may be, but as a matter of law need not be drawn from another established fact or group of facts. Section 119 of the Evidence Act provided that; the Court could presume the existence of any fact which it thought likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

8. The Court had to consider all the facts of the case and the circumstances.  The performance of a customary marriage was not a basic requirement for the Court to presume marriage. Long cohabitation as man and wife gave rise to presumption of marriage. In the instant case the cohabitation was intermittent.  Since October 2013 parties had not been cohabiting.  Although visitors to the house saw them living together, they had had a rough and brutal physical engagement leading to reports to the police.  The period from October, 2013 could not be considered as part of the long cohabitation of the parties. The only periodto be considered would be April 2010 to October 2013.

9. In a case involving presumption of marriage, an oral promise to marry was not sufficient.  What counted were the behaviors of the parties. Where the children adopted the name of the man, the man paid school fees for the children from the age of one year upto 18 years, change of identity card, family photographs among other things.  There were no photographs for the Maragoli Customary rites; no photographs were taken showing the defendant and the plaintiff’s parents.  No photographs were taken showing the defendant in the Bamburi apartment or showing the plaintiff in her alledged Posho Mill or Commercial Simu Ya Jamii Phones. 

10. No presumption of marriage could be made.  There was no long period of cohabitation and neither did the parties take themselves to be married.  What existed was a simple friendship which led to the birth of the child.  Giving birth to a child during such sexual relationship could not lead to a presumption of marriage.  The relationship could not be held to be a marriage.

11. It would be an academic exercise to elaborate on matrimonial property in that matrimonial property arose where there was a marriage. It was clear that no presumption of marriage arose and therefore no matrimonial property could be considered.

12. It would also be flogging a dead horse if the alleged issue of contribution was considered. Firstly because no presumption of marriage arose therefore there was no matrimonial property. Secondly, the Plaintiff did not prove that she used to work and earn a Kshs. 35,000.00 and left her employment for the sake of the marriage.  At the very least a letter from her former employer could have sufficed to prove employment.  Thirdly, the figure of Kshs.1.2 million she allegedly contributed towards the purchase of the house was not proved.  There was no evidence to prove that the plaintiff sold her items.

13. The principles governing the grant of an order for injunctions including temporary injunctions, are:

a.     a prima facie case with chances of success has to be established.

b.     a party must demonstrate that he/she is likely to suffer irreparable harm or damage of which damages will be insufficient compensation if not granted the prayer and where that is not clear the court may invoke the principle of balance of convenience

A prima facie case in civil cases itis a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.

14. The parties were litigating before the children’s court. The children’s matter had no bearing on the instant case. The Defendant could deal with the property as he pleased.  The orders issued in the children’s case would be effected on their own as opposed to connection with the instant case.

15. The Plaintiff did not prove that general damages accrued to her. The injury she suffered in was not pleaded or proved or demonstrated in evidence or even submitted. She entered into a sexual relationship with the defendant and the two had a child together.  Other than that, there was nothing more.  She enjoyed the relationship when the parties were good friends.  She could not claim damages since the relationship had broken down.

Suit dismissed, parties to bear its own costs.

 

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