Ngoka v Madzomba

High Court, at Mombasa

November 15, 2002

Waki J

Civil Appeal No 49 of 1999

Customary law - proof of customary law - Mijikenda customary law - status of customary law-whether customary law is subject to proof just as other facts to be decided on- nature of customary law- custom existing in any particular era and area-requirement that such customary law should be proved - whether a custom that would force a widow to be inherited against her will can be upheld.

Customary law - application of customary law - mode of application for customary law-criteria to be met before customary law is applied.

The respondent sought a refund of dowry under Mijikenda customary law. He stated that the appellant had remarried his (the respondent’s) late son’s wife and had refused to refund the dowry in accordance with custom. The appellant denied being liable for the amount claimed. The trial magistrate found for the respondent and ordered the appellant to refund the dowry or pay the customary adultery compensation. In the appeal, the appellant alleged, inter alia, that the issue of adultery compensation had not been raised and it was therefore an invalid finding and order. Further, the Mijikenda customary law was not proved that when a person dies leaving a widow and the widow is inherited, dowry should be refunded. The respondent on his part supported the findings of the lower court. The appellant had inherited someone’s wife and had not paid dowry for her. This was Duruma customary law which was admitted by both parties and needed no proof.

Held:

1. As the law stands, customary law is a matter of fact which is subject to proof just as other facts which a court of law has to decide on.

2. Customary law is not static but dynamic. The customary law existing in any particular era and area should be proved.

3. In this case no expert was called to establish the said custom and it was not correct for the trial magistrate to say that the custom was admitted.

4. The Constitution of Kenya recognizes customary laws and has established courts for it’s application, but the mode of application is cleary spelt out in the Judicature Act (cap 8).

5. From the evidence establishing any particular custom, the court must be able to determine whether such custom meets the criteria set out under section 3(2) of the Judicature Act (cap 8).

6. Courts must weigh the proved evidence and establish its concurrence with the Constitution and other widely recognized international norms

7. Any custom that would force a widow to be inherited against her will would be repugnant to justice and morality, and in breach of human rights.

8. (Obiter) Women, in whatever community are no longer the commercial objects of yore and it is time customary law diehards woke up to that reality.

Appeal allowed

Cases

No cases referred to.

Statutes

1. Constitution of Kenya

2. Judicature Act (cap 8) section 3(2)

Advocates

Mr Magolo for the Appellant

Mr Omwenga for the Respondent.

Republic v Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & another

High Court, at Mombasa

November 15, 2002

Waki J

Miscellaneous Application No 64 of 2001

Criminal Practice and Procedure – private criminal prosecution - circumstances in which criminal private prosecution may not be permitted.

Judicial Review – prohibition – application of the order of prohibition to a future action.

Criminal Practice and Procedure - private prosecution - when a private prosecution will not be allowed by the court - where it is instituted with an ulterior motive and is an abuse of the court’s process - private prosecution instituted to remedy a grievance of a civil nature - whether such prosecution proper. T

he applicant sought an order of prohibition against the Chief Magistrate’s Court, prohibiting the court against proceeding with a private criminal prosecution instituted by the applicant against the interested party. It emerged that after a formal complaint was made to the police, and investigations carried out, the issue was essentially a civil matter and the Attorney General had advised against prosecution. It also emerged that the matters complained of by the interested party were purely civil and could be adjudicated by a civil court.

Held:

1. It is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement or frustration of their civil cases. That is an abuse of the process of the court. No matter how serious the criminal charges may be they should not be allowed to stand if their predominant purpose is to further some ulterior purpose.

2. The interested party in this matter was more actuated by the desire to punish the applicant or to oppress him into acceding to his demand by brandishing the sword of punishment under the criminal law, than in any genuine desire to punish for a crime on behalf of the public. The predominant purpose was to further that ulterior motive which the High Court could not allow.

3. The application for an order of prohibition was inappropriate as the order looks into the future and can only stop what has not been done. Certiorari would be efficacious in quashing that which has been done. However it cannot be granted as it was not prayed for in the matter.

4. If anything remains to be done in the proceedings however, the order of prohibition will issue to stop further proceedings.

 Application granted, cost to the applicant.

Cases

1. Saina, Vincent Kibiego v The Attorney General High Court Miscellaneous Application No 839 and 1088 of 1999

2. Republic v Chief Magistrate Mombasa, Exparte Johnson Knassiuma Simiyu High Court Miscellaneous Civil Application No 8 of 1997 4. Kigorogolo v Rueshereka [1969] EA 426 S

tatutes

1. Criminal Procedure Code (cap 75) sections 88, 89

2. Constitution of Kenya sections 26, 77

3. Law Reform Act (cap 26)

4. Civil Procedure Rules (cap 21 Sub Leg) order LIII

 5. Judicature Act (cap 8) section 3

Advocates

Mr Lumatete, holding brief for M/s Waruhiu K’Owade & Ng’ang’a for the Applicant

Mr Kabuki for the interested party.