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|Case Number:||Succession Cause 278 of 2000|
|Parties:||JOEL MITHIKA M’IBUATHU v MARGARET CIOMAUA M’IBUATHU|
|Date Delivered:||31 Oct 2007|
|Court:||High Court at Meru|
|Citation:||JOEL MITHIKA M’IBUATHU v MARGARET CIOMAUA M’IBUATHU  eKLR|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE MATTER OF THE ESTATE OF M’IBUATHU M’ILULA……DECEASED
JOEL MITHIKA M’IBUATHU……………………….RESPONDENT/PETITIONER
V E R S U S
MARGARET CIOMAUA M’IBUATHU…………….........APPLICANT/OBJECTOR
R U L I N G
The House of the 1st wife Rael Kooru (deceased)
(a) Joel Mithika - son
(b) Joyce Muthena - Married daughter
(c) Paulina Kaka - Married daughter
(d) Mary Kangai - Married daughter
The House of his 2nd wife of Margaret Ciomaua
(a) Regina Karambu - Married daughter
(b) Martha Kathure - Married daughter
“The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commences or proceed so far as possible in accordance with this Act”.
(a) Land Parcel No. Njia/Buri-e-Ruri/976
(b) Land Parcel No. Njia/Buri-e-Ruri/2161
(c) Land Parcel No.Njia/Buri-e-Ruri/2497
(d) Plot No. 563, Akirang’ondu Land Adjudication Section
(e) Plot No. 17A Muringene Market Adjudication Section
(f) Ksh.60,000/- held by the Public Trustee.
“The Law of Succession Act has brought in substantial changes to the Customary Law rules of intestacy. The position of the widow has been much enhanced and there is now no distinction between sons and daughters. The Act adopts the Commission’s (i.e. the Commission on the Law of Succession) recommendations that the law of intestacy should be based not on a system of fixed shares but on the idea of a discretionary trust”
See E. Cotran case book on Kenya Customary Law, 1997.
6. The comments by the learned Judge flow directly from the statement at page 47 paras 151 and 152 of the Report on Commission on the Law of Succession that:
In customary law, on the other hand, the matter is complicated by the rules of division amongst the “houses” by which there is an equal division amongst the “houses” irrespective of the number of children in each “house”. We believe this rule to be highly unfair and discriminatory.
We have considered the possibility of applying to the estate of a polygamist the same rules of intestacy that we have recommended for a monogamist. This would mean that the life interest given to the widow would have to be shared by the several widows and the power of appointment exercisable by the widows jointly. Much as we would have preferred to have similar rules for monogamous and polygamous households, we do not think that it would be practicable to have several widows sharing a life interest and a power of appointment. Human nature being what it is, each widow is bound to prefer her own children and such a system is bound to lead to disputes and endless litigation.”
7. In the present dispute and with that background in mind, the proposal by Joel is as follows: (at paragraph 5 of his Affidavit aforesaid)
“(a)NJIA/BURI-E-RURI/2497 measuring 0.50 Hectares.
“(i) One acre be registered to Margaret Ciomaua M’Ibwathu.
(ii) The balance to be registered to Joel Mithika M’Ibwathu.
(a) NJIA/BURI-E-RURI/976 measuring 1.1 hectares be registered to Joel Mithika M’Ibwathu.
(b) NJIA/BURI-E-RURI/2161 measuring 0.44 Ha be registered in the names of Joel Mithika M’Ibwathu.
(c) Plot No. 563 Akirangondu Adjudication Section be registered in the names of Joel Mithika M’Ibwathu.
(d) Plot No. 17A Muringene be registered in the names of Joel Mithika M’Ibwuathu
(e) Ksh.60,000/= be shared as follows:-
-Ksh.20,000/= Margaret Ciamaua M’Ibwathu
-Ksh.40,000/= Joel Mithika M’Ibwathu
“(a) land parcel No. Njia/Buri-E-Ruri/976 measuring about 1.1 hectares to be shared equally by Margaret Ciomaua M’Ibuathu and Joel Mithika M’Ibuathu.
(b) Land parcel No. Njia/Buri-E-Ruri/2161 measuring about 0.44 hectares to be shared equally by Margaret Ciomaua M’Ibuathu and Joel Mithika M’Ibuathu.
(c)\Land Parcel No. Njia/Buri-E-Ruri/2497 measuring about 0.5 hectares to be shared equally by Margaret Ciomaua M’Ibuathu and Joel Mithika M’Ibuathu.
(d) Plot No. 563, measuring about 0.13 hectares, Akirangondu land Adjudication Section to be shared equally by Margaret Ciomaua and Joel Mithika M’Ibuathu.
(e) Plot No 17A Muringene Market to be subdivided into two halves and one half be transferred to Margaret Ciomaua M’Ibuathu and the other half to Joel Mithika M’Ibuathu.
(f) Money, approximately Ksh.60,000/= transferred to Public Trustee from deceased bank account with KCB be equally shared by Margaret Ciomaua M’Ibuathu and Joel Mithika M’Ibuathu”.
9. Looking at the two proposals, it seems to me that Joel’s proposal is actuated more by ego that as the only male in the family he ought to have a lion’s share of his estate and yet as Justice Cotran stated above, Margaret, as a widow has a much more enhanced position than is conferred by both the Act and customary law. In any event, the discrimination of women merely because they are women has been held to be unconstitutional and against all relevant International Treaties and Instruments. For effect, I should quote the powerful statement made by Waki J.A. in Mary Rono vs Jane Rono and Another, C.A. No. 66/02 where the learned Judge stated as follows:-
The manner in which courts apply the law in this county is spelt out in section 3 of the Judicature Act Chapter 8, Laws of Kenya
application of African Customary Laws takes pride of place in section 3(2) but it is circumscribed thus:-
“…………so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law………”
The Constitution, which takes hierarchical primacy in the mode of exercise of jurisdiction, outlaws any law that is discriminatory in itself or in effect. That is section 82(1). In section 82(3), it defines discrimination as follows:-
“affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connexion, political opinion, colour, creed, or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description”
That provision has not always been the same with regard to discrimination on grounds of sex. “Or sex” was inserted in a relatively recent constitutional amendment by Act No. 9 of 1997. In the same section however, the protection is taken away by provisions in section 82(4) which allow discriminatory laws, thus:-
“Subsection (1) shall not apply to any law so far as the law makes provisions-
(b) With respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law;
(c) For the application in the case of members of a particular race or tribe of customary law with respect to any matter to the exclusion of any law with respect to that matter which is applicable in the case of other persons; or
(d) Whereby persons of a description mentioned in subsection (3) may be subjected to a disability or restriction or may be accorded a privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons for any other description, is reasonably justifiable in a democratic society.”
Is international law relevant for consideration in this matter? As a member of the international community, Kenya subscribed to international customary laws and has ratified various international customary laws and has ratified various international covenants and treaties. In particular, it subscribes to the International Bill of Rights, which is the Universal Declaration of Human Rights (1948) and two international human rights covenants; the covenant on economic, social and cultural rights and the Covenant on civil and political Rights (both adopted by the UN general Assembly in 1966). In 1984 it also ratified, without reservation, the Convention on the Elimination of All Forms of Discrimination Against Women, in short, ‘CEDAW”. Article 1 thereof defines discrimination against women as.
“Any distinction, exclusion or restriction made on the basis of sex which has the effect or effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social cultural, civil or any other field.”
In the African context, Kenya subscribes to the African Charter of Human and People’ Rights, otherwise known as the Banjul Charter (1981), which it ratified in 1992 without reservations. In article 18, the charter enjoins member States, inter alia to:-
“….ensure the elimination of every discrimination against women and also ensure the protection of rights of the woman and the child as stipulated in international declarations and conventions.”
It is in the context of those international laws that the 1997 amendment to section 82 of the constitution becomes understandable. The country was moving in tandem with emerging global culture, particularly on gender issues. There has of course, for a long time, been raging debates in our jurisprudence about the application of international laws within our domestic context. Of the two theories on when international law should apply, Kenya subscribes to the common law view that international law is only part of domestic law where it has been specifically incorporated. In civil law jurisdictions, the adoption theory is that international law is automatically part of domestic law except where it is in conflict with domestic law. However, the current thinking on the common law theory is that both international customary law and treaty law can be applied by state courts where there is no conflict with existing state law, even in the absence of implementing legislation. Principle 7 of the Bangalore Principles on the Domestic Application of International Human Rights Norms states:-
“It is within the proper nature of the judicial process and well established functions for national courts to have regard to international obligations which a country undertakes – whether or not they have been incorporated into domestic law – for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or the common law.”
That Principle, amongst others, has been reaffirmed, amplified, reinforced, and confirmed in various other international for a as reflecting the universality of human right inherent in men and women. In Longwe vs International Hotels 1993 (4 LRC 221), justice Musumali stated:-
“…ratification of such (instruments) by a nation state without reservations is a clear testimony of the willingness by the State to be bound by the provisions of such [instruments]. Since there is that willingness, if an issue comes before this court which would not be covered by local legislation but would be covered by such international [instrument], I would take judicial notice of that Treaty Convention in my resolution of the dispute.”
A clear pointer to the currency of that thinking in this country is in the draft constitution where it is proposed that the Laws of Kenya comprise, amongst others;
“Customary international law and international agreements applicable to Kenya.”
I have gone at some length into international law provisions to underscore the view I take in this matter that the central issue relating to discrimination, which this appeal raises, cannot be fully addressed by reference to domestic legislation alone. The relevant international laws which Kenya has ratified, will also inform my decision”.
DATED, SIGNED AND DELIVERED THIS 31ST . DAY OF OCTOBER 2007
In presence of
N/A Advocate for the petitioner
Mr. Mburugu Advocate for the Obejctor