Weekly Newsletter 011/2017

Weekly Newsletter 011/2017



Kenya Law

Weekly Newsletter


Failure by Parliament to Enact Legislation to Give Effect to the ‘Two Third Gender Principle’ within scheduled timeline is a violation of the Constitution
Centre for Rights Education and Awareness & 2 others v Speaker of the National Assembly & 6 others
Petition No. 371 of 2016
High Court of Kenya at Nairobi
Constitution and Human Rights Division
John M Mativo J
March 29, 2017
Reported by Kipkemoi Sang & Priscilla Mtawe
Download the Decision

 
Constitutional Law- consequential legislation-  failure and consequences of failure to enact paramount legislations-whether the Respondents failure to enact legislation required implementing the Constitution within the time-frame set out in the Constitution was unlawful - what were the consequences of failure to enact a legislation within the required timelines as specified under the Fifth Schedule of the constitution-whether the Respondents failure to enact legislation required implementing the Constitution within the time-frame set out in the Constitution was unlawful -Constitution of Kenya, 2010, article 27,81, 261 and the Fifth Schedule.

Constitutional Law-jurisdiction-jurisdiction of the High Court to make a determination as to failure of another State organ to undertake Constitutional obligation -whether the Court had jurisdiction  to make a determination as to the failure of parliament to pass legislation that should give effect to the two thirds gender rule- Constitution of Kenya, 2010, article 261

Constitutional Law-right to equality and non-discrimination- equal protection and benefit of the law -enforcement of right to equality and non-discrimination of men and women in parliament- promotion of representation of marginalised groups-the need for the desired legislation to give effect to the two thirds gender rule- Constitution of Kenya, 2010, articles 27(3), (6), 81(b)and100.

Civil Procedure and Practice-doctrine of res judicata- justification of the doctrine of res judicata-where a matter had previously been determined- whether the  defence of  res judicata  as raised by the Respondent would apply on the claim that the matter had been concluded in in the previous  petition No. 182 of 2015
 
Brief facts:
The Petition revolved around the interpretation and application of the provisions of articles 27, 81 and 261 of the Constitution of Kenya, 2010 (hereinafter the Constitution).  The said articles inter alia concerned the implementation of the Constitution to give effect to the principle of two third gender rule. The Constitution tasked parliament to enact any legislation to govern particular matters within specified dates under the Fifth schedule of the Constitution.  Based on the said schedule, the Petitioners’ claim was that the enactment of legislation to give effect to the principle of two third gender rule was to be done within five years from the effective date of the Constitution. 
According to the Petitioners, women were among the marginalized group in Kenya who did not have equal protection and benefit of the law and that they had suffered political exclusion and denied rights to participate effectively in the public affairs of the Republic of Kenya, in both appointive and elective bodies across the entire spectrum of public sector. Women in Kenya constituted less than one third of the elected or appointed persons and in that regard there had been gender imbalance. The Petitioners’ further claimed that the 1st and 2nd Respondents had failed, refused and or neglected to perform their constitutional obligation to pass the necessary legislation to realize the principle that not more than two thirds of the National Assembly and the Senate should be of the same gender.
On the other hand, the Respondent argued that the matter raised was res judicata since it had been determined fully in another previous suit; Petition 182 of 2014.  The Respondent contented inter alia that the jurisdiction of the High Court under article 261 should not be invoked to entrench a constitutional crisis and that the Court should respect the doctrine of separation of powers.

Issues:
  1. Whether the defence of res judicata as raised by the Respondent would apply on the claim that the matter had been concluded in the previous petition No. 182 of 2015
  2. Whether there was a misjoinder of parties by virtue of inclusion of the 1st and 2nd Respondents (speaker of the National Assembly and the Honourable Attorney General respectively) and what were the consequences if any
  3. Whether the Respondents failure to enact legislation required implementing the Constitution within the time-frame set out in the Constitution was unlawful.
  4. What were the consequences of failure to enact a legislation within the required timelines as specified under the Fifth Schedule of the Constitution
  5. Whether the Court had jurisdiction to make a determination as to the failure of parliament to pass legislation that should give effect to the two thirds gender rule
Relevant Provisions of the Law
Constitution of Kenya, 2010
Article27 -Equality and freedom from discrimination;

(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).
(6) To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.
(7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.

(8) In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two thirds of the members of elective or appointive bodies shall be of the same gender.

Article 81-General principles for the electoral system;
The electoral system shall comply with the following principles—
 
(a) freedom of citizens to exercise their political rights under article 38;
(b) not more than two-thirds of the members of elective public bodies shall be of the same gender;
(c) fair representation of persons with disabilities;
(d) universal suffrage based on the aspiration for fair representation and equality of vote; and
(e) free and fair elections, which are—

(i) by secret ballot;
(ii) free from violence, intimidation, improper influence or corruption;
(iii) conducted by an independent body;
(iv) transparent; and

(v) administered in an impartial, neutral, efficient, accurate and accountable manner

Article 261-Consequential legislation;
 
(1) Parliament shall enact any legislation required by this Constitution to be enacted to govern a particular matter within the period specified in the Fifth Schedule, commencing on the effective date.
(2) Despite clause (1), the National Assembly may, by resolution supported by the votes of at least two-thirds of all the members of the National Assembly, extend the period prescribed in respect of any particular matter under clause (1), by a period not exceeding one year.
(3) The power of the National Assembly contemplated under clause (2), may be exercised—

(a)only once in respect of any particular matter; and
(b) only in exceptional circumstances to be certified by the Speaker of the National Assembly.

(4) For the purposes of clause (1), the Attorney-General, in consultation with the Commission for the Implementation of the Constitution, shall prepare the Relevant Bills for tabling before Parliament, as soon as reasonably practicable, to enable Parliament to enact the legislation within the period specified.
(5) If Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter.
(6) The High Court in determining a petition under clause (5) may—

(a) make a declaratory order on the matter; and
(b) transmit an order directing Parliament and the Attorney-General to take steps to ensure that the required legislation is enacted, within the period specified in the order, and to report the progress to the Chief Justice.

(7) If Parliament fails to enact legislation in accordance with an order under clause (6)(b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament.
(8) If Parliament has been dissolved under clause (7), the new Parliament shall enact the required legislation within the periods specified in the Fifth Schedule beginning with the date of commencement of the term of the new Parliament.
(9) If the new Parliament fails to enact legislation in accordance with clause (8), the provisions of clauses (1) to (8) shall apply afresh.
 
Held:
  1. For a defense of res judicata to succeed, the Court ought to be satisfied that not only were the parties the same, but the issues raised were unquestionably similar. In the instant case the issues were not unquestionably similar to the issues in Petition No. 182 of 2015 hence the defence of res judicata raised by the Respondents would fail entirely.
  2. Rule 5 (b) and (c) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013(herein after ‘the Rules) prohibited a  defeat of a petition by reason of the misjoinder or non-joinder of parties, and the Court would in every proceeding deal with the matter in dispute as it deemed fit.
  3. Rule 3(1) of the Rules whose overriding objective was to facilitate access to justice for all persons as required under article 48 of the Constitution, acknowledged that the conduct of judicial proceedings and exercise of judicial authority was entrenched in the Constitution and ought to be reflected in court decisions.
  4. Rule (3) of the Rules required that they be interpreted in accordance with article 259 (1) of the Constitution and be applied with a view to advancing and realizing; rights and fundamental freedoms enshrined in the Bill of Rights; and  values and principles in the Constitution. Rule 8 of the Rules gave the Court inherent powers to make orders as may be necessary for the end of justice and to prevent abuse of court process. Owing to the fact that the fundamental duty of the Court was to do justice between the parties, the argument of misjoinder or non-joinder of parties raised by the Respondents counsels had no merit or legal basis.
  5. Pursuant to article 261 (5) any person could petition the High Court to determine matters relating to the failure of parliament to enact any particular legislation within specified time. The supremacy of the Constitution required that the obligations imposed by it should be fulfilled and the Courts were required by the Constitution to ensure that all branches of government acted within the law and fulfilled their constitutional obligations. The Court in any instant was entrusted with the power to ensure that Parliament fulfilled its constitutional obligations. Where the State failed to undertake a constitutional obligation, the Court as the ultimate guardian of the Constitution would point out the transgression.
  6. Article 2(1) of the Constitution provided that the Constitution was the supreme law of the Republic and bound all persons. Furthermore, article 259 of the Constitution enjoined the Court to interpret the Constitution in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the bill of rights and in a manner that contributed to good governance. The Court was obliged under article 159 (2) (e) of the Constitution to protect and promote the purposes and principles of the constitution. The Constitution was further given a purposive, liberal interpretation so as to give prominence to national values and principles of governance.
  7.  The Court was bound to adopt the interpretation that most favoured the enforcement of the right to equality and non-discrimination of men and women in parliament. In that regard, the amendments to the election laws qualified to be construed even in the slightest manner to be the desired legislation to give effect to the two thirds gender rule. In the instant case Parliament had failed to enact the required legislation to implement the measures contemplated under article 27(6) hence a gross violation of article 27(3) and 100 of the Constitution.
  8. Article 2(5) of the Constitution expressly imported the general rules of international law and made them part of the laws of Kenya. Equality of rights under the law for all persons, male or female, was so basic to democracy and commitment to Human Rights. Parliament had a constitutional obligation to enact the requisite legislation and failure to do so within the stipulated period was unacceptable and a blatant breach of their constitutional duty and mandate of Parliament and therefore the provisions of article 261 would come into play. Members of Parliament swore to obey, respect, uphold, preserve, protect and defend the Constitution.
  9. No constitution was self–executing; hence, parliament being the legislative organ of the State had been mandated by the Constitution to execute its legislative duties. In the instant case it was given a specific time frame and failure to legislate as required within the set time frame failure to which amounted to a gross violation of the Constitution and an act of abdicating from its constitutional mandate.
  10. Law was the vehicle by which society made some of its most basic decisions and courts were the institutions whose major tasks were to defend and preserve the order of things. Courts were important institutions which society had designed to set its norms with. Every organ of the State derived its authority from the Constitution and had to act within the limits of that authority. It was for the Court to uphold the constitutional values and enforce the constitutional limitations. Judicial review did not mean supremacy of the judiciary, but of the Constitution. That was called constitutional supremacy and the High Court had a constitutional duty to uphold it.
  11. The Courts were designed to be an intermediate body between the people and their legislature in order to ensure that the people's representatives acted only within the authority given to parliament under the Constitution. Therefore, the power of the people was superior and where the will of the legislature, stood in opposition to that of the people as declared in the Constitution, then the judges would be governed by the will of the people rather than the legislature. The judges were required to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
  12.  The Constitution itself was very clear on the question of equality between men and women and the steps that were to be taken to give full effect to the realization of the two third gender rule. The Constitution required the State to take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantages suffered by individuals or groups because of past discrimination.
  13. Article 27 (8) required the State to take legislative and other measures to implement the principle that not more than two thirds of the members of elective or appointive bodies were of the same gender. The period allowed for passing the desired legislation lapsed without the legislation in question being in place. Parliament extended the period by one year but again it failed to enact the required legislation. The extension also lapsed and that window closed. The effect was that there was total failure on the part of Parliament to perform constitutional obligations. Refusal to enact the required legislation amounted to denial of the fundamental rights guaranteed to the citizens.
  14. The Constitution’s delegation of tasks to the legislature should be respected, and comity between the arms of government required respect for a cooperative partnership between the various institutions and arms tasked with fulfilling constitutional rights. The Courts and the legislature acted in partnership to give life to constitutional rights. Parliament’s failure to enact the required legislation amounted to failure to recognize the important tasks conferred on the legislature by the Constitution to respect, protect, promote and fulfil the rights in the Bill of Rights.
  15.  Unless the law contemplated under article 81 (b) was enacted and implemented before the next general elections scheduled for August 8, 2017, the resultant was that the National Assembly and Senate if non-compliant with the constitutional requirement of minimum and maximum gender thresholds should be unconstitutional hence null and void. Article 261 required parliament to enact legislations before it was dissolved within the specified period under the Fifth Schedule of the Constitution and where the said parliament failed it would be unconstitutional and a recipe for chaos. In the instant case therefore the 2nd Respondents had failed, refused and neglected to perform their Constitutional mandate prescribed in the constitution. 
Petition allowed. Respondent to pay all costs. 
  1. A declaration issued that the failure by parliament to enact the legislation contemplated under article 27 (6) & (8) and 81 (b) of the Constitution amounted to a violation of the rights of women to equality and freedom from discrimination and a violation of the constitution.
  2. An order of mandamus issued directing Parliament and the Honourable Attorney General to take steps to ensure that the required legislation was enacted within a period of Sixty (60) days from the date of the Court order and to report the progress to the Chief Justice.
  3. If Parliament failed to enact legislation within the said period of sixty (60) days from the date of the Court order, the Petitioners or any other person would be at liberty to petition the Honourable Chief Justice to advise the President to dissolve Parliament.
Kenya Law
Case Updates Issue 011/2017
Case Summaries

LAND LAW

Applicability of the Common Law Doctrines of Accretion and Alluvion in Kenya

Tukero Ole Kina & another  v  Tahir Sheikh Said (also known as TSS)  & 5 others [2015] Eklr
ELC Civil Case No. 219 of 2014
Environment and Land Court at Malindi
O. A. Angote
July 24, 2015
Reported by John Ribia and Njeri Mweha

Download the Decision

Land Law - claim to land – claim to land based on the Common Law doctrines of accretion and alluvion - whether the boundary line of land abutting a body of water followed the changing location of the body of water where the change was as a result of accretion or alluvion - whether the title of land that originally formed part of a body of water passed to the littoral owner as a result of accretion or alluvion.
 Land Law - Common Law doctrines of accretion and alluvion - what was the nature and scope of the Common Law doctrines of accretion and alluvion - whether the Common Law doctrines of accretion and alluvion are applicable in the Kenyan jurisdiction.
Land Law – land boundaries – ager limitatus (of a fixed boundary) - ager non limitatus (not of a fix boundary) – whether the Constitution of Kenya, 2010, the Land Titles Act (repealed), and the Registration of Titles Act (repealed) allowed the registration of plots that were ager non limitatus (not of a fixed boundary).
Words and phrases – meaning of the term ‘accretion’ - the gradual and imperceptible receding of the sea or inland water - Halsbury Laws of England 3rd Ed. Vol. 39 Paragraph 780.
Words and phrases - meaning of the term ‘alluvion’ - the gradual and imperceptible deposit of matter on the foreshore - Halsbury Laws of England 3rd Ed. Vol. 39 Paragraph 780.

Brief facts:
The 1st Plaintiff and the 1st defendant were registered proprietors of adjacent parcels of land whose eastern boundary extended to the Indian Ocean. Following wide spread floods in or about 1961, there was wide spread siltation along the Malindi Bay. The siltation caused the sea in some sections of the Malindi Bay and the North past the Sabaki River to recede, exposing land that originally formed part of the Indian Ocean Sea bed.
Due to the recession of the sea, the 1st Defendant applied and acquired the land that originally formed part of the Indian Ocean Seabed which was adjacent to his land. The plaintiff’s claim was that land resulting from accretion or alluvion was presumed by law to belong to the owner of the dry land to which it was added and as such he was entitled as of right to the accretion or alluvion appurtenant thereto. They claimed that the alluvion ensured to their predecessors in title and when they purchased the suit property, they became the owners of the said right. They claimed that such a right did not require registration and was indefeasible as a covenant between the Plaintiffs, the Government of Kenya and any past and present owner of the said portions of land.
 They further claimed that due process was never followed when the 1st Defendant was issued with a grant for the exposing land that originally formed part of the Indian Ocean Sea bed. They claimed that the grant issued in respect of the suit property was not registered, was not registrable and that the Deed Plan issued was unlawful because the grant purported to suggest that the Government owned the suit property.  It was further averred to that the survey done wasn’t done on the said suit property thus it should have been considered invalid.
The 1st Defendant  claimed that he had applied to the Commissioner of Lands (3rd respondent) and was allocated the newly created land towards the Indian Ocean. Lastly the 1st Defendant claimed that he applied to the Kilifi Local Government and was granted permission to build a wall that created a boundary between between the boundary of the 1st plaintiff’s land and the high water mark.

Issue:
  1. Whether the provisions of the Land Titles Act (repealed), the Registration of Title Act (repealed) and the Government Lands Act (repealed) were applicable to land that underwent accretion or alluvion before the enactment of the Constitution of Kenya, 2010, the Land Registration Act, 2011 and the Land Act, 2012.
  2. What is the nature and scope of the Common Law doctrines of accretion and alluvion?
  3. Whether the Common Law doctrines of accretion and alluvion are applicable in the Kenyan jurisdiction.
  4. Whether the boundary line of land abutting a body of water followed the changing location of the body of water when the change was as a result of accretion or alluvion.
  5. Whether the title of land that originally formed part of a body of water passed to the littoral owner as a result of accretion or alluvion.
  6. Whether the Constitution of Kenya, 2010, the Land Titles Act (repealed), and the Registration of Titles Act (repealed) allowed the registration of plots that were ager non limitatus (not of a fixed boundary).
  7. Read More...

Held:

  1. The Land Titles Act, the Registration of Title Act and the Government Lands Act were repealed and replaced with the Land Registration Act, 2011 and the Lands Act, 2012. The applicable law in respect to the suit property was that which was applicable at the time the grant was registered in favour of the 1st defendant was the Registration of Titles Act (repealed). Considering that the Deed Plan which the plaintiffs were relying on in respect to the suit land was prepared and registered under the Land Titles Act (repealed), the applicable law in respect to the suit property was the Land Titles Act (repealed).
  2.  The position of relying on repealed legislation was grounded on section 23(3)(c) of the Interpretation and General Provisions Act that provided that written law that repealed whole or part of another written law did not affect the right, privilege, obligation or liability acquired, accrued or incurred under the repealed law.
  3. The general rule when dealing with non-criminal legislation is that all statutes other than those which are merely declaratory or which relate only to matters of procedure or evidence or prima facie prospective; are not to be given a retrospective effect unless by express words or necessary implication. Section 162(1) of the Land Act specifically provided that any rights, interest, title, power or obligation acquired, accrued, established, came into force or exercisable before the commencement of the Land Act is to be governed by the law applicable to it before the commencement of the Act. As such, the applicable Laws in the instant matter are the repealed, Registered Tittles Act, Government Lands Act and the Land Titles Act.
  4. The Common Law doctrines of accretion and alluvion recognised the fact that where land was bounded by water, the forces of nature were likely to cause changes in the boundary between the land and the water.
  5. The Halsbury Laws of England 3rd Ed Vol. 3 defined accretion as the gradual and imperceptible receding of the sea or inland water while alluvion was defined to mean the gradual and imperceptible deposit of matter on the foreshore. Both accretion and alluvion led to the addition of land on the foreshore.
  6. Reliction was the opposite of accretion. Reliction is defined to mean the gradual and imperceptible encroachment of water onto land causing a reduction in the surface area of the foreshore. Alluvion, accretion and reliction were identifiable expressions that principally denoted the phenomenon of matima incrementa.
  7. Where title to real property described a boundary line as a body of water, common law had developed several different doctrines that responded to the issue raised by the movable nature of those bodies of water. Accretion, dereliction, erosion and alluvion were ancient common law doctrines rooted in the Roman Law of alluvion and the Civil Law doctrine of accession. As applied, the doctrines were as complex and muddy as the movements of the water. The term ‘accretion’ denotes the process by which an area of land is increased by the gradual deposit of soil due to the action of a boundary river, stream, lake, pond or tidal waters.
  8. In Common Law, where the change in the location of a body of water was caused by accretion, reliction or erosion, the boundary line between the abutting lands moved with the waterway.  The littoral owner was given title to lands that were gradually added by accretion or reliction.
  9. The common law doctrines of accretion and alluvion had been rationalised by courts in the Commonwealth countries and by commentators on grounds that since a riparian owner was subject to losing land by erosion or reliction, he should benefit from any additions to his land by accretions thereto. The most persuasive and fundamental rationale for a doctrine that permitted a boundary to follow the changing location of a body of water was the desirability of maintaining land as riparian that was riparian under earlier conditions, ensuring the upland owners of access to the water along with the advantages of such contiguity.
  10. The term ‘accretion’ denotes the increase which land bordering on river or on the sea underwent through the silting up of soil, sand or other substance or the permanent retiral of the waters. The increase had to be formed by a slow and gradual process so as to be in practical sense imperceptible. The addition could not be observed in its actual progress from moment to moment or from hour to hour although after sometime it could be observed that there had been fresh addition to the shoreline. Where the changes were gradual and imperceptible, the law considered the title to the land as applicable to the land as it may be so changed from time to time.
  11. The Common Law doctrine of accretion applied where title to real property described a boundary line as a body of water.  The doctrine was not applicable when the boundary was not a water line. In cases where the stream bed was parceled out in ownership by fixed or line limits, the essential condition of accretion was lacking.
  12.  The Deed Plan depicted a straight boundary with two beacons on the easterly side, whereafter it was indicated that there was the Indian Ocean.  The boundaries for the 1st plaintiff’s land were shown on the plan by way of beacons pursuant to the provisions of Section 24 of the Survey Act. That was the same position reflected in the Survey plan which subdivided the 1st plaintiff’s land two portions in 1957.
  13. An ager limitatus is a plot of land enclosed on all sides by artificial boundaries and demarcated by such. An ager non limitatus is a plot bounded by one or more side by some natural feature such as a river or, as in this case, the sea shore. Irrespective of the sort of boundaries it had, a plot defined by measurements was also ager limitatus or, if not one in that pure sense, then was regarded as such for all practical purposes.
  14. Ager limitatus literally means, ‘fixed field’ and in Roman – Dutch Law, beaconed land  that was rectilinearly bounded was ager limitatus. If that land abutted a river or sea, there could be no extension of that land area to midstream nor is the owner entitled to alluvion.
  15.  Land registered under the Registration of Titles Act (repealed) required a cadastral survey to be prepared, which was based on a fixed boundary survey principle. Such a survey had an accurate linear and regular measurement to aid the registration of a title of a report. The boundaries of land registered under the Registration of Titles Act (repealed) could easily be identified by any surveyor because of the fixed nature of its beacons.
  16.  The Land Titles Act (repealed), under which the plaintiff’s land was registered, and the Registration of Titles Act (repealed) only allowed the registration of plots that were ager limitatus, a plot of land enclosed on all sides by artificial boundaries and demarcated as such.
  17. Section 22 of the Land Titles Act (repealed) demanded that land registered under the Act had to have fixed boundaries. Section 27(1) thereof provided that every Certificate of Title would set out the description of the immovable property referred to, the figure and references that were necessary to identify it on the plan or map of the area in which it was situated. Section 27(4) provided that there would be attached to every Certificate of Ownership a plan of the land the subject of the certificate signed by the Recorder of Titles and the Director of Surveys.  Section 28(1) provided that the Certificate of Title issued under the Act could not derogate the right of the Government in or over the foreshore. Section 28(1) excluded the holder of a certificate of title any rights over the foreshore and bestowed the rights over the foreshore on the Government.
  18. Considering that the Land Titles Act (repealed) only applied to the Coastal region, it would have recognised the Common Law doctrines of accretion and alluvion if that was the intention of Parliament. Instead, the Act specifically excluded those doctrines by stating that it was the Government which had rights over the foreshore.
  19.  It was contradictory and unlawful to claim that land gained by maritime incrementa on the foreshore went to the owner of the land adjoining the sea. The law has conferred the rights of the foreshore, which is defined as the land between the high water mark and the low water mark, on the Government. The law required that all parcels of land registered under the Land Title Act (repealed) and the Registration of Titles Act (repealed) were ager limitatus as opposed to ager non limitatus.
  20. Article 62(1)(e) of the Constitution of Kenya, 2010 defined pubic land to include all land between the high and low water marks, which was a reinstatement of the provisions of the Land Titles Act (repealed) and the Government Land Act (repealed).
  21. Any land gained from the sea, either by alluvion, accretion or dereliction becomes unalienated Government land as defined by the Government Lands Act (repealed) and the Constitution of Kenya, 2010.
  22. The Constitution had granted the foreshore to the public. The issue of the Plaintiffs having an exclusive right to the beach front under the current constitutional dispensation did not arise. The beach front belongs to the public at all times and is subject to use and allocation pursuant to the provisions of the Constitution and the Land Act, 2012.  Previously, the foreshore formed what was unalienated Government land and could only be dealt with in accordance with the Government Lands Act (repealed).
  23.  The argument that the thousands of hectares of accreted land along the Kenyan coastal line was presumed by law to belong to the owner of the dry land abutting the ocean was unconstitutional and contra-statute.  Article 60(1) of the Constitution of Kenya, 2010 provided that there had to be equitable access to land, while article 62(1) thereof had defined public land to include the territorial sea and all land between the high and low water marks, notwithstanding the persons abutting the said high water mark.
  24.  Even though the Plaintiff’s right to the accreted land crystalised before the promulgation of the Constitution, the argument would still be contra-statute because section 28 of the Land Titles Act (repealed) provided that a Certificate of Title could not confer a right upon any person to or over the foreshore unless that right was expressly described in the certificate issued to the person.  The Government Lands Act (repealed) on the other hand defined ‘unalienated Government Land’ to mean Government land which had not been leased to any person, or in respect of which the Commissioner had not issued any letter of allotment.
  25.  If the boundaries of a piece of land were bounded by specific measurements and beaconed rectilinearly, then the doctrine of accretion and alluvion did not apply to such land. When one acquired an interest in land, his interest was limited to the ‘four’ corners indicated in the Deed Plan, notwithstanding that the ocean was a few meters away.
  26.  The land which was gained by the sea was due to wide spread floods siltation in 1961 along the Malindi Bay as a consequence of which the sea had continued to expose land that originally formed part of the Indian Ocean seabed. The Plaintiffs could not claim ownership of such land under the doctrines of accretion or alluvion because for the two doctrines to apply, the gain had to be by little by little and by small and imperceptible degrees.
  27. The common law doctrine of accretion and alluvion, just like any other common law doctrine, had to be considered in the context of the governing laws, including but not limited to the Constitution of Kenya, 2010, the Land Titles Act (repealed), the Government Act Lands (repealed) and the United Nations Convention on the Law of the Sea.
  28.  Prima facie, the doctrine of accretion and alluvion were not applicable in the instant case because the boundaries in respect to the suit land were fixed by a Deed Plan at specified lines without reference to the water. The eastern boundary which was first fixed in 1929 via a Deed Plan was fixed by a straight line and with identifiable beacons.  The boundary was not ambulatory and therefore the sea water never moved with it.
  29. The issue of the Government having not advertised the plot pursuant to section 13 of the Government Lands Act (repealed) before it allocated the same to the 1st Defendant could only be answered by the 3rd Defendant, the predecessor of the office of the Commissioner of Lands and not the 1st Defendant. The 3rd Defendant had not deponed that the grant issued to the 1st Defendant was unlawfully allocated for want of advertisement. It was an issue which, prima facie, the Court could not invalidate the grant allocated to the 1st Defendant.

Application dismissed.

CIVIL PRACTICE AND PROCEDURE Extension of time is an Equitable remedy to be issued at the Discretion of the Court.

County Executive of Kisumu v County Government of Kisumu & 8 others
Civil Application No 3 of 2016
Supreme Court of Kenya
M Ibrahim, S Wanjala SCJJ
April 12, 2017
Reported by Phoebe Ida Ayaya

Download the Decision

Civil Practice and Procedure – extension of time – application for extension of time within which to file an appeal to the Supreme Court – grounds for allowing extension of time within which to file an appeal- the circumstances in which a court may grant orders for extension of time to litigants-whether the Applicant could rely on the Civil Procedure Rules when making his application to extend time vis a vis the regime of law that governed proceedings before the Supreme Court- whether there would be any prejudice suffered by the Respondents if the extension was granted - Civil Procedure Rules order 50 ; Supreme Court Rules rule 33(6)

Brief facts
Aggrieved by a decision of the Court of Appeal, the Applicant filed a notice of appeal at the instant Court on October, 2015. The notice of appeal was accompanied by a letter addressed to the Registrar requesting for typed copies of the proceedings and the Judges’ notes, which documents formed part of the record of appeal as a mandatory requirement. The typed copies of the proceedings were however, only furnished to the Applicant on December 4, 2015, outside the time limitation period provided by the Rules of the Court for filing an appeal. A certificate of delay by the Deputy Registrar was supplied on December 16, 2015. Hence, it was submitted that the delay was due to reasons beyond the Applicant’s control.
The application was also based on the ground that it was in the best public interest that the appeal herein be heard for the enrichment of jurisprudence. The appeal had been brought by a State organ as against another and as such, it was in the best public interest that the appeal be heard and determined on merit. Lastly, it was stated that the appeal had been lodged without inordinate delay and the Respondents stood to suffer no prejudice whatsoever if the application was allowed.

Issues:

  1. What were the circumstances in which a court may grant orders for extension of time to litigants?
  2. Whether the Applicant could rely on the Civil Procedure Rules when making his application to extend time vis a vis the regime of law that governed proceedings before the Supreme Court.
  3. Whether there would be any prejudice suffered by the Respondents if the extension was granted. Read More...

Held:

  1. In an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. The Court settled the principles that were to guide it in the exercise of its discretion to extend time. The Court delineated the following as the under-lying principles that a Court should consider in exercise of such discretion: -
    1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
    2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
    3. The Court’s exercise of its discretion to extend time, is a consideration to be made on a case to case basis;
    4. Where there is a sensible reason for the delay, the delay should be explained to the satisfaction of the Court;
    5. Whether there will be any prejudice suffered by the respondents if the extension is granted;
    6. Whether the application has been brought without undue delay; and
    7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
  2. A ground of delay of getting typed proceedings was not a prima facie panacea in the case of delay whenever it was pleaded. Each case had to be determined on its own merit and all relevant circumstances considered. It was worth reiterating that in considering whether or not to extend time, the whole period of delay was to be stated and explained to the satisfaction of the Court.
  3. In the instant case, while there was indeed a certificate of delay from the Deputy Registrar of the Court of Appeal, that alone did not suffice for the Court to indulge the Applicant and grant an extension. The proceedings were availed to the Applicant on December 4, 2015. It filed its application more than two months later. While it submitted that it filed the application on February 8, 2016, the record from the receipt of payment and the stamp on the face of the application showed that the application was filed on February 12, 2016.
  4. The regime of law that governed proceedings before the Supreme Court was the Constitution, Supreme Court Act, the Supreme Court Rules, 2012 and any practice directions made by the Court or by the Chief Justice. The Civil Procedure Rules were not applicable. Consequently, the Applicant could not rely on the provisions of the Civil Procedure Act to submit that time was not running.
  5. In filing the notice of appeal on time, the counsel had already received instructions to appeal. In seeking the typed proceedings, counsel was acting under the instructions that he should appeal; hence he had started the process of preparing the record of appeal as early as October, 2015. Having filed a notice of appeal, having requested and received typed proceedings, and also having requested and been issued with a certificate of delay, it could not be probable that counsel was yet to get instructions from the Applicant to lodge an appeal.
  6. The Applicant had an option of filing a timely petition of appeal and putting in those documents which ordinarily should form part of the record of appeal but were not there through a supplementary record of appeal. That procedure was provided for by rule 33(6) of the Court Rules which allowed for filing of the requisite documents late, but without leave.
  7. Whether the Court would have refused to accept the filing a supplementary record of appeal delayed for a day or two was not an issue here but at the very least, that would have demonstrated some vigilance on the Applicant’s side. The applicant did not satisfactorily explain the inordinate delay of two months upon receipt of the typed proceedings.
  8. Whereas the issues as highlighted were germane and novel, that alone could not be a reason for grant of extension. The Court would not admit a matter for hearing on the premise of the novelty of a matter, but upon due exercise of its jurisdiction and within the laid out legal framework.  Arguability of a matter was not a ground alone for extension of time.
  9. An appeal filed in the Court out of time without leave of the Court was irregular and the Court could not invoke such ‘novel’ principles so as to validate that petition and deem it as properly filed. Pursuant to rule 33(1) of the Supreme Court Rules, it was mandatory that an appeal could only be filed within 30 days of filing the notice of appeal. Under rule 53 of the Court’s Rules, the Court indeed extended time.  However, it could not be gainsaid that where the law provided for the time within which something ought to be done, if that time lapsed, one needed to first seek extension of that time before he could proceed to do that which the law required.  By filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, was tantamount to moving the Court to remedy an illegality. That, the Court could not do.
  10. To file an appeal out of time and seek the Court to extend time was presumptive and in-appropriate. No appeal could be filed out of time without leave of the Court. Such a filing rendered the ‘document’ so filed a nullity and of no legal consequence. Consequently, the Court could not accept a document filed out of time without leave of the Court. Where one intended to file an appeal out of time and sought extension of time, the least he could do was to annex the draft intended petition of appeal for the Court’s perusal when making his application for extension of time; and not to file an appeal and sought to legalize it.
  11. If the Court was to grant extension of time in the matter, it would not hesitate to accede to the Respondents’ request, if the same was found to be the position that a petition of appeal had in fact been filed in the Court without leave of Court extending time.
  12. On perusal of the Court Registry records there was no evidence of a petition of appeal already filed in the matter. From the application before the Court, the Applicant stated that it had already filed a petition of appeal and urged that the Court were inclined to extend time, to deem that petition of appeal as properly filed. It then appeared to change tune in its written submissions when it stated that the ‘said appeal’ be taken as a draft for purposes of showing urgency of the matter.
  13. It was upon the Court Registrar to check against such scenarios. Whatever it was that happened in the matter was to be investigated and not allowed to recur. However, as the Court was unable to trace the said petition in the Court’s records at the registry it was of the position that there was no petition of appeal already filed in the matter, hence the issue rested there.

Application dismissed and Applicant to bear costs of the 3rd, 4th, 7th and 8th Respondents.

Long'et Terer - CEO and Editor

e: editor@kenyalaw.org

t: @LongetTerer

The Kenya Law Team

Where Legal Information is Public Knowledge.

The National Council for Law Reporting | P.O Box 10443 - 00100, Nairobi Kenya. | www.kenyalaw.org