In Re Estate of Fredrick Clavence Kittany

High Court, at Eldoret

November 22, 2002

Nambuye J

Succession Cause No 11 of 2001

Succession – intestate succession – where the deceased had two wives – where deceased contracted a previous statutory marriage then subsequently contracted a customary marriage – whether both are wives for the purposes of succession – wife entitled to administer succession husband’s estate – appointment of administrators – factors to be considered by the Court.

Succession – intestate succession – persons entitled to inherit – dependants – section 3(5) and 26 of the Law Succession Act (cap 160).

Succession – distribution – intestate succession – distribution of estate of a deceased person – guiding principles in deciding distribution – section 28 of the Law of Succession Act (cap 160).

Succession – inheritance – by wife – where validity of marriage is in question – whether a marriage to the deceased can be declared null and void during succession proceedings – meaning of wife within the ambit of section 3(5) of the Laws of Succession Act (cap 160)

One Sally Kittany, who claimed to be a widow of the deceased FC Kittany, filed a claim in the High Court seeking the letters of representation to the deceased’s estate on her own account and on account of her two children and the mother of the deceased. Rhoda Kittany filed an objection to that claim on the grounds that she (Rhoda) was the sole widow and beneficiary of the estate of the deceased. Rhoda had also filed a succession claim to the estate on her own account and on account of seven beneficiaries who she claimed were children of her marriage to the deceased. Her claim and Sally’s were consolidated.

Rhoda’s evidence was that she and the deceased first married under customary law and they later solemnized their marriage in church in 1979. That they cohabited and resided together and that they bore children and owned property. She admitted that they had marital difficulties but maintained that their marriage was still in existence even at the time of the deceased’s death.

Sally, on the other hand, claimed that she married the deceased as a second wife because his marriage to Rhoda was troubled. She stated that her marriage to the deceased was done under customary law.

It fell on the court to decide who were the proper dependants of the deceased and who was entitled to be appointed as an administrator of the deceased’s estate.

Held:

1. Where it is proved that the deceased had previously contracted a valid customary law marriage and then subsequently contracted a statutory marriage both wives will inherit his estate.

2. Where the deceased contracted a previous statutory marriage then subsequently contracted a customary marriage, for the purposes of the Succession Act only, both women are wives.

3. The mother of the deceased in this case qualified as a dependant within the meaning of the Law of Succession Act, and she was therefore entitled to inherit the deceased’s estate and administer the same jointly with the wife or wives.

4. A marriage cannot be declared null and void through a counsel’s submissions, the court can only be moved substantively to declare the same null and void. Having failed to so move the court that marriage stood valid and recognized by law.

5. Rhoda was the legal wife of the deceased and she is entitled to administer the estate of the deceased either alone or jointly with others as ruled by the court.

6. In the absence of documentary or other proof, children born during the subsistence of a marriage are children of the marriage and are entitled to inherit the estate of the deceased.

7. The deceased did not terminate his marriage to Rhoda, and therefore he had no capacity to marry under customary law or by law and the ceremony with Sally did not constitute a marriage and was null and void.

8. The marriage to Sally did not constitute a marriage as not all the prerequisites were gone into.

9. Before a man or woman is to be presumed to have been married by virtue of a long cohabitation and repute there has to be a declaratory order from a court of competent jurisdiction. In this case there is no such declaratory order.

10. Sally was not the wife of the deceased and did not come within the ambit of the provisions of the amendment in section 3(5) of the Law of Succession Act and so she will not inherit the estate of the deceased; she cannot also administer the same save for the purposes of safeguarding the interests of her children if they are found eligible to inherit.

11. The two children of Sally fall within the ambit of the amendment in section 3(5) of the Law of Succession and were eligible to inherit the estate of the deceased independent of their mother.

12. In deciding the distribution of the estate of the deceased the court will be guided by the principles set out in the Law of Succession Act (cap 160) section 28 namely

a) The nature and amount of the deceased’s property;
b) Any past, present or future capital or income from any source of the dependant;
c) The existing and future means and needs of the dependant; d) Whether the deceased had made any advancement or other gift to the dependant during his lifetime;
e) The conduct of the dependant;
f) The situation and circumstances of the deceased’s other dependants and the beneficiaries under any will; and
g) The general circumstances of the case including so far as can be ascertained the testator’s reasons for not making provision for the dependant.

13. The three claimants to the estate of the deceased all appointed as joint administrators to each take care of their interest and that of their children.

Cases

1. Re Ruenji’s Estate [1977] KLR 21 2. Re Ogola’s Estate [1978] KLR 18

3. Ayoob v Ayoob [1968] EA 72

4. Re Kibiego [1972] EA 179

5. Kipruto (Deceased), In the matter of the estate of Eldoret Probate and Administration No 161 of 1996

6. Mutua (Deceased), In the Matter of the estate of, Probate & Administration Cause No 843 of 1986

Statutes

1. Marriage Act (cap 150) sections 11(1)(d), 34, 37, 50

2. Law of Succession Act (cap 160) sections 3(5), 28, 29, 40, 41, 66

3. African Christian Marriage and Divorce Act (cap 151)

 4. Births and Deaths Registration Act (cap 149)

Wilson Kalya & another v Standard Ltd & 2 others

High Court, at Eldoret

October 30, 2002

Tunya J

Civil Case No 165 of 1999

Defamation – Libel – damages for libel – applicable principles – assessment of special and aggravated damages.

Damages – for defamation - libel – assessment of and measure of damages – factors to be taken into consideration.

The plaintiffs, who were advocates of the High Court, filed a suit against the defendants for libel. The alleged libel arose in respect of a newspaper article which, among other things, imputed that the plaintiffs had stolen from the Kenya Co-operative Creameries and caused its collapse. The statement of defence was struck out and the plaintiffs were allowed to fix the suit for assessment of damages.

Held:

1. In deciding the amount of damages to be awarded for libel, the court should take into account the plaintiff’s standing in society and the violent damage to their reputation.

2. The court in assessing aggravated damages must look at the conduct of both parties before action, after action and during trial. Malicious and insulting conduct on the part of the defendants ought to aggravate the damages.

3. The conduct of the defendants in this case was indicative of recklessness and malice and that conduct made them liable to pay aggravated damages.

4. An apology tendered after a long period of time would have no effect on the damage to the plaintiff’s reputation. It therefore was immaterial that the plaintiffs did already mitigate through paid advertisement or that they had been compensated. The plaintiffs are therefore entitled to damages in lieu of an apology.

 Damages awarded to the plaintiffs.

Cases

1. Biwott, Kipyator Nicholas v Clays Ltd & 3 others High Court Civil Case No 1067 of 1999 consolidated with Kipyator Nicholas Biwott v Dr Ian West & Chester Stern High Court Civil Case No 1068 of 1999

2.Sutcliffe v Pressdram Ltd [1990] 1 All ER 269; [1991] 1 QB 153; [1990] 2 WLR 271

3. Kulei, Joshua v Kalamka Ltd Nairobi High Court Civil Case No 375 of 1997

4. Machira, John P v Wangethi Mwangi & another NAI High Court Civil Case No 1709 of 1996

Texts

Milimo, QC; Rogers, VH (1998) Gatley on Libel & Slander London: Sweet & Maxwell 9th Edn p 76 para 3.11

Statutes

 Civil Procedure Rules (cap 21 Sub Leg) order VI rule 13(1)(b), (d)

Kandie & 2 others v Beatrice Jepkemoi Cherogony

High Court, at Eldoret

October 16, 2002

Tunya J

Civil Appeal No 76 of 2002

(Appeal from the judgment of the Resident Magistrate’s Court at Eldoret, PN Ngigi Esq, in Eldoret CMCC 553 of 2002 dated July 6, 2002)

Burial dispute – customary law – application of burial customs – deceased’s widow desiring to bury her husband at his farm away from his ancestral home – deceased’s father and brothers desiring to bury his body at his ancestral home – whether deceased’s customary law applicable.

Customary law – Tugen customary law - burial customs – custom providing that a man should be buried in his ancestral home – deceased’s widow desiring to bury his body at his farm away from his ancestral home – whether Tugen burial customs applicable to the deceased.

The respondent widow embarked on making funeral arrangements for her deceased husband who she intended to bury in Molo where he owned a piece of land. The deceased’s father and two brothers, however, asserted that the deceased was to be buried in his ancestral home in Baringo District. The respondent filed a suit in the Chief Magistrate’s Court in which the court found in her favour and restrained the appellants from interfering with her funeral and burial arrangements. The appellants appealed against the decision, arguing that both the deceased and the respondent were Tugens from Baringo District and that the law applicable to the deceased’s burial place was his personal law, which was the customary law of the Tugen. According to that law, it was submitted, deceased persons were to be buried in their rural ancestral homes.

Held:

1. It was clear that both the deceased and the respondent subscribed to the Tugen Customs as to burial. During his lifetime, the deceased had maintained regular contact with his ancestral home, where he had even buried his son despite having a large farm in Molo.

2. The customary law of the Tugen was that a man must be buried by his father and family members at his ancestral home. It was never suggested that such a custom was inconsistent with any written law and in the case of Ougo v Otieno [1987] KLR 407, the Court of Appeal held that it was not repugnant to justice and morality.

3. The trial magistrate had misconceived the evidence and misdirected herself in ordering that the deceased be buried at Molo primarily because he had land there. Ownership of land was not a relevant factor in determining the burial place and in any case, there was evidence that the deceased owned land in Baringo as well.

4. The proper place to bury the deceased was at his rural home in Tiriondonin, Baringo District and not in Molo.

Appeal allowed.

Cases Otieno v Ougo & another (No 4) [1987] KLR 407

Statutes

Judicature Act (cap 8) section 3(2)

Advocates

Mr Mweitich for the Appellant.

Mr Chepkonga for the Respondent.

Vishva Builders Ltd v Moi University

High Court, at Eldoret

October 16, 2002

Tunya J

Civil Case No 51 of 1999

Civil Practice and Procedure - summary judgment-application for- once defence filed, court ought to be satisfied on triable issues - need for defendant to demonstrate why he should have leave to defend.

This was an application by the plaintiff pursuant to order XXXV rules 1(1) and (2) of the Civil Procedure Act for summary judgment to be entered against the defendant. The plaintiff grounded his application on grounds inter alia that there was overwhelming documentary evidence that the defendant was indebted to the plaintiffs as expressed in the plaint. The respondent took issue with the amount of interest to be paid on the debts after entering into the contractual agreement with the plaintiff, five years after and three years after filing suit.

Held:

1. Where a plaintiff makes a demand for summary judgment, the defendant must demonstrate to the court that it should have leave to defend the suit.

2. Any dispute over the amount claimed by a contractor once not raised during the contractual period, if brought up for the first time as a defence to a suit, the same may be considered as frivolous.

3. Once a defence has been filed, the court must be satisfied that the defence raises prima facie triable issues and that it is not a mere sham.

Application allowed

Cases

1. Nairobi Golf Hotels (K) Ltd v Lalji Bhimji Sanghani Builders & Contractors Civil Appeal NAI No 5 of 1997

2. Barua, Kea N & Another v Town Construction Company Ltd Civil Application No NAI 325 of 1998 (129/98 UR)

3. Onditi, RA v KCF Ltd High Court Civil Case No 65 of 1993

4. Savings and Loans (K) Ltd v Aggrey Kimaru Maiyo ELD High Court Civil Case No 258 of 1996 Vishva Builders Ltd v Moi University

5. Ata Ul Haq v The City Council of Nairobi [1962] EA 18 6. Gupta v Continental Builders [1978] KLR 83

Texts

 Hailsham Lord et al. (Eds) (1973) Halsbury’s Laws of England London: Butterworths 4th Edn Vol 4 pp 572 – 620

 Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XXXV rules 1(1), (2); 2(1), (2)

Advocates

Mr Gicheru for the Applicant

Mr Kuloba for the Respondent

Kitur v Standard Chartered Bank & 2 others

High Court, at Eldoret

June 13, 2002

Tunya J

Civil Case No 50 of 2002

Civil Practice and Procedure - affidavit - verifying affidavits – contents of – averment that there is no suit pending over the same subject matter – meaning of pending suit – affidavit verifying the correctness of the averments contained in the plaint – false verifying affidavit – Civil Procedure Rules Order VII rule 1(1) (e)

Civil Practice and Procedure – institution of suits – type of pleadings – claims for redemption and recoveyance – claims for fraud arising from a claim of recoveyance – whether suit should be by originating summons or plaint.

Injunctions – interlocutory injunction – applicable principles in granting interlocutory injunctive reliefs.

Mortgages and Charges – statutory power of sale – exercise of power of sale – sale by public auction – sale not conducted as advertised or in accordance with the law - allegation of fraud – remedy available to the chargor – right of redemption.

The applicant filed an application under order XXXIX rules 1,2,3 and 9 of the Civil Procedure Rules. The applicant prayed that the defendant respondent be restrained by means of a temporary injunction from alienating the suit property which had been sold by the respondent in exercise of a chargee’s power of sale, pending the hearing and determination of the substantive suit. The application was on the grounds that the applicant had been denied an opportunity to redeem his property, that the property had been sold below the reserve price, and that that the sale was not conducted by public auction as required by law. The applicant also argued that there was fraud in the sale and that the sale by private treaty without leave of the court was irregular. The respondent challenged the application on the grounds that the verifying affidavit was false, that the claim should have been by originating summons, that any claim of impropriety on the part of the auctioneer in respect of the public auction had a remedy of damages and that the applicant had not fulfilled the principles set out in the case of Giella vs Cassman Brown in failing to show that the award of damages would not be adequate compensation for him.

Held:

1. The subject matter in this suit was subject to a previous suit. It was immaterial that in the previous suit, only the 1st defendant and the plaintiff were parties or that there were additional causes of action claimed in the present suit which did not feature in the previous suit.

2. The averment in the applicant’s verifying affidavit that there was no previous suit or proceedings over the same subject matter between the parties (meaning none of the parties ) was clearly false and in contravention of the rules and law.

3. The verifying affidavit being false it had to be struck out and consequently the plaint could not stand on its own without an affidavit and it had to be be struck out as well.

4. Although this was a claim for redemption and reconveyance which should have been commenced by originating summons; this matter had also a claim/allegation of fraud and relief stemming therefrom hence commencement by plaint was proper.

5. In applications for interlocutory injunctive reliefs, the applicant must demonstrate prima facie that it has a case with a probability of success, that unless an order of injunction is granted by the court the applicant may suffer loss or injury which cannot be compensated by an award of damages and in case of doubt the court should resolve the dispute on a balance of convenience. The applicant herein has a prima facie case with a probability of success.

 6. The evidence revealed that there was absolutely no substance in the claim of denial to the applicant to redeem his property.

7. The mere fact that a sale by public auction was below the reserve price is not by itself evidence of fraud or mala fides on the part of the chargee.

8. Where the public auction was not properly conducted either as advertised or the sale did not conform to the law applicable, the only remedy available to the chargor is damages.

 9. The damages will only be payable if fraud is proved. In the absence of fraud being established as in this case an injunction could not issue.

10. When a chargor lets loose its property to a chargee as security for a loan or any other commercial facility on the basis that in the event of a default it be sold by a chargee, the damages are foreseeable. The security is henceforth a commodity for sale or possible sale, with prior concurrence and consent of the chargor. The applicant could not having defaulted to repay loan arrears prompting a chargee to exercise its statutory power of sale, claim that he was likely to suffer loss or injury incapable of compensation by an award of damages.

11. The false averment in the affidavit coupled with the untrue assertion by the applicant that he had always offered to redeem the property were signs of bad faith. He had come for an equitable relief with unclean hands and was undeserving of an equitable relief.

Application dismissed.

 Cases

1. Ochieng, Nyagilo & another v Fanuel Ochieng & another Kisumu Civil Appeal No 148 of 1995

2. Russell Co Ltd v Commercial Bank of Africa Ltd & another [1986] KLR 633

3. Mbuthia v Jimba Credit Corporation [1988] KLR 1

4. Giella v Cassman Brown & Co Ltd [1973] EA 358

5. Otachi, Robert Kibagendi & another v HF Co Kenya Ltd & 3 others Nairobi Civil Appeal No 251 of 1996

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order VII rule 1(1)(e); order XXXVI; order XXXIX rules 1, 2, 3, 9

 2. Auctioneers Act (cap 526) section 26 3. Registered Land Act (cap 300) sections 77(3), 74

Advocates

Mr Kimaru for the Applicant.

Amolo & Gachoka Advocates for the 1st & 2nd Respondents.

Mr Manani for the 3rd Respondent.

East Africa Tanning Extract Company Ltd v Gerishon Barasa Wanyonyi

High Court, at Eldoret

June 12, 2002

Etyang J

Civil Appeal No 11 of 2000

(An appeal from the Judgment of the Resident Magistrate at Eldoret, JA Wanjala RM Esq dated 6th August 1999 in PMCC No 971 of 1996)

Negligence – duty of care – employer’s duty of care towards employees - duty of care of employer where employee accepts to do a job which is inherently dangerous - tools an employer is to provide a watchman employee so as to discharge his duty of care towards the employee.

Master and Servant - master’s duty of care towards his servant - scope of that duty - where servant undertakes inherently dangerous work.

The appellant appealed against the decision of a subordinate court which awarded the respondent damages for negligence in discharging its duty of care towards the respondent who was its employee. The respondent pleaded that the appellant had failed to take any or any adequate precautions for his safety by failing to provide him with protective clothing, helmet, shield, a whistle, reinforcement and therefore exposed him to an attack by thugs and the subsequent injuries which he sustained. The appellant denied liability and pleaded that the respondent substantially contributed to the incident by failing to adhere to safety rules set by the appellant company, by exposing himself to risk, failing to use safety clothing and by deliberately inflicting injury upon himself. However, not a single officer of the appellant company went to court to verify the pleadings.

Held:

1. An employer is under a duty to take reasonable care for the safety of his employees in all the circumstances so as not to expose them to unnecessary risk.

2. However inherently dangerous the work an employee is engaged to do, an employer is expected reasonably to take steps in respect of that work, to lessen danger or injury to the employee.

3. Therefore, an employer’s duty to the watchman remains the same; to take reasonable care to maintain a safe and proper and suitable security system and to provide them with sufficient protective tools, for their use and generally to take adequate measures which will ensure their safety in the discharge of their duties.

4. A watchman’s tools include a torch, whistle, rungu/club, helmet, shield and protective clothing. There should be provided, where possible, back up systems through regular patrols by armed supervisors and easy accessibility to alarm and communication systems.

Appeal dismissed with costs to the respondent.

Cases

Mumende, Makala Mailu v Nyali Golf & Country Club Civil Appeal No 16 of 1989

Texts

Hailsham, Lord et al (Eds) (1976) Halsbury’s Laws of England London: Butterworths 4th Edn Vol 16 para 560

Statutes

Companies Act (cap 486)

Advocates

Mr Nyagaka for the Appellant.

Mr Kitiwa for the Respondent.

Joseph Njau Kingori v Robert Maina & 3 others

High Court, at Eldoret

March 27, 2002

Nambuye J

 Civil Case No 136 of 2000

Civil Practice and Procedure – parties – joinder of parties - proper and necessary parties to a suit – need for an applicant seeking joinder to demonstrate that he is a necessary and proper party to be joined – stay of execution – substantive relief – need for applicant to be affected by orders – powers of court to strike out name of party or join the same.

Judicial Notice – duties of an administrator - a trustee for the deceased’s estate.

The plaintiff filed this case against the defendants seeking among other orders a mandatory injunction against the defendants compelling them to reinstate the applicant/plaintiff on the suit premises together with his tools and personal effects. The Court made a ruling to this effect on 31st July 2000 which led to an application by the 1st and 2nd defendants seeking inter alia that one Peter Chege be joined as a defendant to the suit. It was averred that the said Peter Chege was the proper and necessary person to be sued as he had obtained letters of administration and was the administrator of the suit property.

Held:

1. An applicant seeking to be joined in a suit must demonstrate that he is a necessary and proper party.

2. In the case of a defendant there must exist a relief flowing from that defendant to the plaintiff .

3. Such applicant seeking to be enjoined in a suit must demonstrate that his presence is necessary to enable the Court to effectively and completely adjudicate upon and settle all questions in the suit.

4. Stay of execution is a substantive relief which can only be availed to a party affected by orders going to bind the parties to the suit at the time they were made.

5. The Court may at any stage of the proceedings either upon or without the application of either party and on such terms as may appear to the Court to be just order that the name of any party improperly named be struck out or any person whose name ought to have been joined be added.

 6. The courts have judicial notice of the position in law that an administrator acts as trustee for the estate and after being issued with the grant and ascertaining the assets and beneficiaries, he eventually distributes the estate to the beneficiaries.

7. The necessary, right and proper party to be sued and to sue on matters relating to an estate is an executor of a will or administrator of an estate.

Application refused.

Cases

1. Nyamosi, Evans Obino v Ndege Okangi Civil Appeal No 32 of 1998

2. Trouistik Union International & Another v Mrs Jane Mbeyu and Another Civil Appeal 145 of 1990

3. Otieno v Ougo & another (No 2) [1987] KLR 400

4. Administrators of the Estate of Maxwell Maurice Ombogo (Deceased) v Standard Chartered Bank (Kenya) Ltd and another Civil Appeal No 162 of 1999

Statutes

1. Law of Succession Act (cap 160) section 46

2. Civil Procedure Rules (cap 21 Sub Leg) order I rules 10, 22

Advocates

Mr Thiongo for the Applicants