Weekly Newsletter 008/2018

Weekly Newsletter 008/2018



Kenya Law

Weekly Newsletter


Legal procedure applicable to a person who sought to regain Kenyan citizenship and had been a Kenyan citizen by birth but had lost Kenyan citizenship by acquiring foreign citizenship.
E W A & 2 others v Director of Immigration and Registration of Persons & another
Petition No 352 of 2016
High Court at Nairobi
Constitutional and Human Rights Division
February 22, 2018
J M Mativo, J
Reported by Beryl A Ikamari
Download the Decision
 
Constitutional Law-citizenship-citizenship by birth-regaining citizenship-where a person was a Kenyan citizen by birth but lost Kenyan citizenship after acquiring foreign citizenship and sought to regain Kenyan citizenship- the applicable procedure for regaining Kenyan citizenship under those circumstances-Constitution of Kenya 2010, article 14(5); Kenya Citizenship and Immigration Act, No. 12 of 2011, section 10.
Constitutional Law-interpretation of the provisions of the Constitution-entitlements of citizens-Kenyan passport-where a person was a Kenyan citizen by birth but lost Kenyan citizenship and had acquired foreign citizenship-whether such a person was entitled to a Kenyan passport-Constitution of Kenya 2010, article 12(1).
 
Brief facts:
The Petitioners were born as Kenyan citizens at hospitals in Nairobi, Kenya. They were adopted by two British citizens. Their adoption orders did not state that they would be presumed to be Kenyan citizens and pursuant to the adoption, they acquired British citizenship.
The Petitioners sought to regain Kenyan citizenship and applied for Kenyan passports but the 1st Respondent declined to issue the passports. The Petitioners said that the denial of the passports was a violation of their rights guaranteed by the Constitution under article 14 and 27 and they wanted the Court to declare that they were Kenyan Citizens. The Respondents stated that the petition was premature and that the Petitioners needed to follow the procedure provided for in section 10 of the Kenya Citizen and Immigration Act in order to regain citizenship.
 
Issues
  1. What legal procedure was applicable to a person who was a Kenyan citizen by birth and was seeking to regain Kenyan citizenship after having lost it by acquiring foreign citizenship?
  2. Under what circumstances was a person entitled to a Kenyan passport?
 
Held:
  1. Any existing law which was inconsistent with the Constitution would be invalid to the extent of the inconsistency. Any provisions of the Immigration Act (repealed) that were inconsistent with the provisions of the Constitution of Kenya 2010 would be invalid to the extent of the inconsistency.
  2. Given that the Petitioners were Kenya citizens by birth, their citizenship could not be revoked or lost merely because they acquired citizenship of another country. Under article 14(5) of the Constitution, a person who was a Kenyan by birth, on the effective date, but ceased to be a Kenyan by acquiring foreign citizenship, was entitled upon application to regain Kenyan citizenship. The Petitioners fell within the terms of article 14(5) of the Constitution and they were entitled to regain citizenship after making an application.
  3. What the Petitioners were required to do was to apply to regain their citizenship. The provisions of article 14(4) of the Constitution and section 9 of the Kenya Citizenship and Immigration Act would not apply to the Applicants because those provisions applied to children who were apparently under the age of 5 years with unknown parents.
  4. A person born in Kenya with at least one Kenyan parent would enjoy Kenyan citizenship by birth under the terms of article 14(1) of the Constitution. That citizenship could not be lost or revoked under any circumstances. The rights and privileges of citizenship under article 12(1) of the Constitution, included the issuance of passports, documents of registration or identification issued by the State to its citizens. Such documents could only be denied, suspended or confiscated in accordance with an Act of Parliament which satisfied the criteria set out in article 24 of the Constitution.
  5. Nationality or citizenship by birth meant nationality that an individual was automatically attributed by law from the moment of birth rather than citizenship acquired as an adult or following any administrative process. The determination of citizenship would be a basic element in obliging the state to protect its citizens and to let them enjoy certain constitutional rights which were related to citizenship, for example, the right to vote.
  6. Section 10 of the Kenya Citizenship and Immigration Act provided that a person who had been a Kenyan citizen by birth but lost Kenyan citizenship after acquiring foreign citizenship could apply in the prescribed manner to the Cabinet  Secretary to regain citizenship. The requirement was that such an application would be accompanied by proof of the Applicant's Kenyan citizenship. The application would have to be accompanied by proof of Applicant’s previous Kenyan citizenship and proof of citizenship of the foreign country.
  7. There was no basis for the 1st Respondent to refuse to grant the Petitioners Kenyan passports. Under article 14(5) of the Constitution, the Petitioners were entitled to regain citizenship upon making an application and under section 10 of the Kenya Citizenship and Immigration Act, the Cabinet Secretary was enjoined to issue the requisite certificate in the prescribed form.
  8. The High Court was empowered to fashion appropriate reliefs for purposes of the enforcement of fundamental rights and freedoms pursuant to article 23(3) of the Constitution. Such relief would take various forms and it could include fashioning new reliefs that the circumstances of the case required.
Petition allowed.
Orders:-
  1. A declaration was issued to the effect that the refusal by the 1st Respondent to grant the Petitioners Kenyan Passports was an infringement of their constitutional rights under article 14 (5) of the Constitution.
  2. That the Petitioners were Kenyan citizens by birth as provided under article 14 (1) of the Constitution and were all entitled to rights of a citizen as provided under article 12 (1) of the Constitution.
  3. An order of mandamus was issued to compel the 1st Respondent to admit and process the Petitioners' applications to regain their citizenship under article 14 (5) of the Constitution and section 10 (3) & (4) of the Act.
  4. An order of mandamus was issued compelling the 1st Respondent to issue the Petitioners with Kenyan passports.
  5. There were no orders as to costs. 
Kenya Law
Case Updates Issue 008/2018
Case Summaries

CIVIL PRACTICE AND PROCEDURE The Effect of Interlocutory Injunctions that do not Lead to the Conclusion of an Election Petition in Election Petition Proceedings

Samwel Kazungu Kambi v Nelly Ilongo Returning Officer, Kilifi County & 2 others [2017] eKLR
Election Petition No. 4 of 2017
High Court at Malindi
November 21, 2017.
W.KORIR J
Reported by Kakai Toili

Download the Decision

Civil Practice and procedure - election petition - stay of proceedings-grounds of stay of proceedings - interlocutory injunctions - interlocutory injunctions that do not lead to the conclusion of an election petition - whether interlocutory injunctions that do not lead to the conclusion of an election petition can lead to a stay of proceedings - Constitution of Kenya, 2010, article 164(3); Elections Act section 85 A; Court of Appeal (Election Petition) Rules, 2017 Rule I8; Elections (Parliamentary and County Elections) Petitions Rules, 2017
Statutes - interpretation of statutes - Court of Appeal (Election Petition) Rules-rule 18 - whether rule 18 of the Court of Appeal (Election Petition) Rules, 2017on stay of proceedings expanded the applicability of section 85 A (2) of the Elections Act 2011 on appeals to the Court of Appeal to include stay of proceedings in an election court-Elections Act, 2011 section 85 A; Court of Appeal (Election Petition) Rules, 2017, rule 18

Brief facts:
The 3rd Respondent filed and served a Notice of Appeal dated November 6, 2017 against the Ruling No. 1 and 4 of the Court dated October 31, 2017. The 3rd Respondent then filed a Preliminary Objection dated November 16, 2017 which stated among others that he had complied with the pre-conditions contained within rule 18 of the Court of Appeal (Election Petition) Rules 2017 and that the mandatory stay envisaged by the said rule 18 was in force and that the Court had been divested of any power to issue any judgment, decree, order or directions in the matter pending further orders from the Court of Appeal.

Issue:

  1. Whether interlocutory injunctions that do not lead to the conclusion of an election petition can lead to a stay of proceedings in an election court.
  2. Whether Rule 18 of the Court of Appeal (Election Petition) Rules, 2017 expanded the applicability of section 85 A (2) of the Elections Act 2011 to include stay of proceedings in an election court.Read More...

Relevant Provisions of the law:
Constitution of Kenya, 2010
Article 164 - Court of Appeal
(3) The Court of Appeal has jurisdiction to hear appeals from—

(a) the High Court; and

(b) any other court or tribunal as prescribed by an Act of Parliament.

Elections Act, 2011
Section 85 A - Appeals to the Court of Appeal.

(1) An appeal from the High Court in an election petition concerning membership of the National Assembly, Senate or the office of county governor shall lie to the Court of Appeal on matters of law only and shall be—

(a) filed within thirty days of the decision of the High Court; and
(b) heard and determined within six months of the filing of the appeal.

(2) An appeal under subsection (1) shall act as a stay of the certificate of the election court certifying

Court of Appeal (Election Petition) Rules, 2017
Rule I8 - Stay of proceedings.

(1) The filing and service of a notice of appeal stays the execution of any judgment, decree, order or direction from the High Court pending the determination of the appeal.

(2) Sub rule (1) shall cease to apply if no record of appeal is filed within thirty days from the date of the judgment of the High Court.

Elections (Parliamentary and County Elections) Petitions Rules, 2017
Rule 15 -Pre-trial conferencing and interlocutory applications.
(2) An election court shall not allow any interlocutory application to be made on conclusion of the pre-trial conference, if the interlocutory application could have, by its nature, been brought before the commencement of the hearing of the petition.

Held:

  1. Rule 15(2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 was self-explanatory. It only allowed interlocutory applications that by their nature could not have been made before the pre-trial conference to be made after the pre-trial conference. The instant Application was one of that kind
  2. If Rule 18 of the Court of Appeal (Election Petition) Rules, 2017 was applicable to interlocutory decisions then the rule could have come into play from November 8, 2017 which was after the pre-trial conference. The Court was on November 10, 2017 alerted by Counsel for the 3rd Respondent of his intention to raise the objection. The objection was therefore presented without undue delay. It was clear that the instant Preliminary Objection could not have been brought before the pre-trial conference. The Preliminary Objection was not in breach of Rule 15(2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017.
  3. The 2016 amendments to the Elections Act, 2011 cemented a long line of jurisprudence developed by the Court of Appeal in interlocutory appeals arising from election petitions from the 2013 general election. Through the decisions, the Court held that although the right of appeal against an interlocutory decision was available to a party in an election petition, that right was deferred to await the final decision of the election court.
  4. The impression gotten from Court of Appeal decisions was that the Court had reached the conclusion that all appeals arising from interlocutory decisions of an election court are deferred to await the final judgment of the Election Court.
  5. Where the Court stood in the hierarchy of courts in Kenya, the Court’s opinion as to whether or not the Supreme Court had made a finding that an appeal could be entertained on an interlocutory decision would not be of any help to the 3rd Respondent. The prevailing jurisprudence in the Court of Appeal was as stated and the Court could not change that jurisprudence. It was upon the 3rd Respondent to move the Court of Appeal to deal with that issue.
  6. However, in certain circumstances the dictates of justice required that appeals on interlocutory decisions of election courts be heard promptly and not deferred to await the final decision. The Supreme Court’s opinion in the Hassan Ali Joho case that the Election Courts and the Court of Appeal had the discretion in ascertaining the justice of each case to balance justice should have been the guiding principle. The aim should have been to do justice but with the Courts always conscious of the ticking clock that overarched election petitions.
  7. A classic example as to why appeals should have been entertained on interlocutory decisions was the Hassan Ali Joho case. In that case, a constitutional question had arisen at the interlocutory stage as to whether the Petition was filed out of time. The Election Court dismissed the Application seeking to strike out the Petition on the ground that it had been filed out of time. When the issue went to the Court of Appeal, the Appeal was dismissed. Undeterred Hassan Ali Joho moved to the Supreme Court. The Supreme Court agreed with him that the Petition had indeed been filed out of time. It was therefore apparent that had the issue reached the Supreme Court at supersonic speed, the Election Court needed not have heard the Petition.
  8. The doctrine of deferred and sequential appellate jurisdiction in regard to interlocutory decisions in electoral disputes should be revisited and tinkered with so that the Court of Appeal acting upon its wisdom and discretion can promptly review some decisions. How this can be achieved without staying the proceedings of the Election Court is a matter that can be addressed by the Court of Appeal or by an amendment to the Court of Appeal (Election Petition) Rules, 2017.
  9. The right of appeal provided by article 164(3) of the Constitution should not have been rendered sterile simply because the appeal was arising from an interlocutory decision in an election dispute. It was alright to have deferred an appeal where such deferment would not have prejudiced the parties. However, if postponing an appeal would result in injustice, then such an appeal should have been heard without undue delay.
  10. The law was that the right of appeal on an interlocutory decision in an election petition was deferred awaiting the final decision of the election court. Reading Rule 18 of the Court of Appeal (Election Petition) Rules, 2017 to mean that the proceedings of an election court were stopped once a notice of appeal on a decision in an interlocutory application was filed and served would have resulted in an absurdity as the Court of Appeal did not hear appeals arising from interlocutory decisions by election courts. Such a stay would have resulted in the abdication by an election court of its responsibility to hear and determine an election petition within six months from the date it is lodged.
  11. It was well-established that the law applicable to election petitions was the Constitution, the Elections Act, 2011 and the regulations and rules made thereunder. The Court was hesitant to seek the definition of the term judgment from the Appellate Jurisdiction Act but instead went for the answer provided by Rule 2 of the Court of Appeal (Election Petition) Rules, 2017
  12. A plain reading of the Elections Act, 2011 as amended in 2016 clearly showed that the decision that was to be stayed was the final decision of the election court. The words used in Section 85A(2) of the Elections Act, 2011 were clear that an appeal under section 85 A (1) acted as stay of the certificate of the Election Court certifying the results of an election until the appeal was heard and determined.
  13. The certificate referred to in section 85A (2) was explained in section 86(1).It was therefore apparent that a certificate determining the questions raised in a petition could only be issued at the conclusion of the trial. Rule 18 of the Court of Appeal (Election Petition) Rules, 2017, which rules were made on the authority of the Elections Act, could not purport to expand the applicability of section 85A(2) to include stay of proceedings before an election court.
  14. The Court of Appeal (Election Petition) Rules, 2017 were drafted with the provisions of the Elections Act, 2011, and more so section 85A, in mind. Subsidiary legislation could not expand the territory of a statute. Subsidiary legislation was meant to effectuate the mother law but not to create rights not envisaged by the Act or take away rights given by the Act. Subsidiary legislation had to strictly adhere to the provisions of the statute that created it. The statute should have, as a matter of course, been in consonance with the Constitution.
  15. A perusal of the Court of Appeal (Election Petition) Rules, 2017 showed that the appeal contemplated was an appeal from the final determination of the High Court in an election matter. Rules 4(1), 6(3) (a), and 8(1) (g) and (h), among other rules, bore testimony to that assertion. Rule 18 should therefore have been read in line with the other rules so that the reference therein to a decree, order and direction could only mean a decree, order or direction arising from and after the judgment of an election court.
  16. An analysis of the law clearly showed that appeals arising from decisions in interlocutory applications were to await the outcome of the Petition unless such a decision has resulted in the striking out of the petition. The automatic stay granted by Rule 18 of the Court of Appeal (Election Petition) Rules, 2017 was only against the final decision of the Election Court. The Preliminary Objection was without merit and should have stood dismissed.
  17. The timelines set by the Constitution and the Elections Act were neither negotiable nor could they be extended by any court for whatever reason. It was indeed the tyranny of time. That meant a trial court had to manage the allocated time very well so as to complete a hearing and determine an election petition timeously. It was therefore imperative that the Elections Petitions Rules be amended to bring about mechanisms of expediting trials.
  18. Any provision that would suspend or stay proceedings in an election petition would put the Trial Court at the risk of failing to comply with article 105(2) of the Constitution as such a provision would be null and void.
  19. The thirty days given to an Appellant by Rule 18 (2) of the Court of Appeal (Election Petition) Rules, 2017 to file a Record of Appeal did not include the time for the actual hearing of the Appeal. The Court had no control over the Court of Appeal’s diary and so the time that Court would take to hear and determine the Appeal cannot be predicted.
  20. The timelines provided by the Constitution and electoral law could not be suspended. Once a petition had been lodged the clock starts ticking and within six months of lodging the Petition a resolution had to be made. An appeal to the Court of Appeal did not stop the constitutional clock from ticking. The constitutional clock plodded irrespective of the activities of the Court and or the parties in an election dispute.
  21. Rule 18 of the Court of Appeal (Election Petition) Rules, 2017 could not be read so that it could result in the stay of an election petition. Any provision that attempted to frustrate the constitutional timelines was void. Rule 18 only applied to the final decision of an election court. That was the decision that was stayed upon the filing and service of a notice of appeal by an Appellant. In the circumstances there was no basis for declaring rule 18 unconstitutional.

Preliminary Objection dismissed, costs to be met by the 3rd Respondent

CIVIL PRACTICE AND PROCEDURE The Effect of Death of a Donor of a Power of Attorney to a Suit Instituted by the Donee of the Power Attorney

Loice Wanjiru Meru & 3 others v John Migui Meru [2017] eKLR
E.L.C Appeal No. 3A of 2017
Environment and Land Court at Murang’a
J.G. Kemei J
November 23, 2017
Reported by Kakai Toili

Download the Decision

Civil Practice and Procedure – suits – abatement of suits – suits initiated under a power of attorney - death of a donor of a power of attorney - whether a suit abated on the death of a donor of the power of attorney.
Civil Practice and Procedure – suits – suits initiated under a power of attorney - parties to a suit – substitution of parties to a suit - whether a donee of a power of attorney could substitute himself as the Plaintiff in a suit filed in his own name instead of the donor’s name upon the death of the donor.
Civil Practice and Procedure – suits – abatement of suits – suits initiated under a power of attorney - death of a donor of a power of attorney - grant of letters of administration ad litem - whether grant of letters of administration ad litem could save a suit instituted by a donee of a power attorney upon the death of the donor from abating.
Land law - power of attorney- donor of power of attorney – death of the donor of power of attorney – extent to which a power of attorney could be used after the death of the donor – what was the extent to which a power of attorney could be used after the death of the donor of the power of attorney.

Brief facts:
On May 4, 2015 the Respondent filed a suit in Murang’a as an attorney of his mother through a general Power of Attorney registered at the Lands Office on the April 8, 2015 as 408/4/2015. The Power of Attorney interalia empowered and authorized the Respondent to demand, sue and recover monies due and owing to her. The Respondent filed the suit in his own name seeking among other things, the refund of the share of the rental income due to his mother that had been unlawfully deducted by the Appellants as unpaid costs of the upkeep of the building that they co-owned together.
The Respondents mother passed away on the June,2015 and the Respondent was issued with limited grant of letters of administration ad litem as the personal representative but limited only to the purpose of substitution in the PMCC No 167 of 2015 at Murang’a.
On the June 17, 2015 the Appellants filed a Notice of Motion seeking orders that the suit be struck out on the grounds interalia that the stratum of the suit collapsed upon the death of the donor of the Power of Attorney to the Respondent. On the November 2, 2015 the Trial Court dismissed the Application. Aggrieved by the dismissal the Appellants filed the Appeal.

Issues:

  1. Whether a suit abated on the death of a donor of the power of attorney.
  2. Whether a donee of a power of attorney could substitute himself as the Plaintiff in a suit filed in his own name instead of the donor’s name upon the death of the donor.
  3. Whether grant of letters of administration ad litem could save a suit instituted by a donee of a power attorney upon the death of the donor from abating.
  4. What was the extent to which a power of attorney could be used after the death of the donor of the power of attorney? Read More..

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 159- Judicial authority
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
(d) justice shall be administered without undue regard to procedural technicalities; and

Civil Procedure Act
Section 75 - Orders from which appeal lies.

(1) An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted—

(a) an order superseding an arbitration where the award has not been completed within the period allowed by the court;
(b) an order on an award stated in the form of a special case;
(c) an order modifying or correcting an award;
(d) an order staying or refusing to stay a suit where there is an agreement to refer to arbitration;
(e) an order filing or refusing to file an award in an arbitration without the intervention of the court;
(f) an order under section 64;
(g) an order under any of the provisions of this Act imposing a fine or directing the arrest or detention in prison of any person except where the arrest or detention is in execution of a decree;
(h) any order made under rules from which an appeal is expressly allowed by rules.

(2) No appeal shall lie from any order passed in appeal under this section.

Civil Procedure Rules, 2010
Order 9 – Recognized Agents and Advocates
2. The recognized agents of parties by whom such appearance s, applications and acts may be made or done are—

(a) subject to approval by the court in any particular suit persons holding powers of attorney authorizing them to make such appearances and applications and do such acts on behalf of parties;
(b)
persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts;
(c) in respect of a corporation, an officer of the corporation duly authorized under the corporate seal.

Held:

  1. Section 75 of the Civil Procedure Act read together with order 43 Rule 1 (b) of the Civil Procedure Rules provided for appeals that accrued by right.
  2. In principle every person who is a party in a civil proceeding is entitled to represent himself personally or through an agent. Order 9 rule 2 of the Civil Procedure Rules provided for recognized agents.
  3. In the instant case the Plaintiff had a proper Power of Attorney to act for his mother in the suit. Therefore, he was acting for a disclosed principal. That was disclosed both in the Plaint and the registered Power of Attorney on record. There was no uncertainty as to whose Attorney he was acting for. There were sufficient disclosures to put the Defendant on notice as to the party on the opposite side and her claim against the Defendant. The Plaintiff filed the suit in his name and not in the name of his mother however, that was a procedural defect that was not fatal to the case.
  4. The test on whether a suit had abated or not depended on whether the suit was considered personal to the party. Causes of action relating to contracts and property were viewed as independent of the party and did not abate when the party died. However, in suits that were personal to a party such as injuries, libel, slander and malicious prosecution, the suits abated on the death of the party. The suit involved property and therefore was not personal to the party. Suits had to be prosecuted by and against living persons.
  5. Order 24 rules 1 to 3 of the Civil Procedure Rules stated that the death of a Plaintiff could not cause the suit to abate if the cause of action survived or continued. Where a sole Plaintiff died and the cause of action survived, the Court on application made in that behalf caused the legal representative of the deceased to be made a party and proceed with the suit. The substitution had to be done within a period of one year. However, the Court was clothed with discretion to so extend the time for substitution on good reasons.
  6. A Power of Attorney was extinguished on the death of the donor. It was plainly clear on record that upon the death of the Deceased, the Power of Attorney donated to her son, the Respondent, stood extinguished by operation of law. That was the effect of her death on the Power of Attorney. However, her demise did not extinguish the cause of action. It being not personal to the party, the cause of action survived the donor of the extinguished Power of Attorney. Upon her death the Respondent applied for letters of grant of administration ad litem which were duly granted by the Court permitting him to so substitute the deceased party. The Respondent was appearing as the personal representative of the deceased party and not as an Attorney.
  7. The wording of the grant of letters of administration ad litem stated the purpose as for substitution in the Muranga case. There was no reason advanced by the Respondent why he did not file the suit in his mother’s name. However, taken that the Plaintiff brought the suit in his capacity as a holder of a Power of Attorney on behalf of his mother and not on his own, and noting that the cause of action survived her, he was right to apply for substitution of the deceased party, in whose authority he had filed the suit in the first place. Any procedural defect could and had to be cured by article 159 (2) (d) of the Constitution in the interest of the substantive justice of the case.
  8. There was no reason to fault the Trial Court in holding that the suit did not abate.

Appeal dismissed with costs to the Respondent.

FAMILY LAW Registration of a Foreign Decree of Dissolution of Marriage is not Mandatory

M W M v H M M [2017] eKLR
High Court at Nairobi
Civil Suit No.75 of 2014 (O.S)
M.W.Muigai,J
October 30, 2017.
Reported by Kakai Toili

Download the Decision

Family Law- matrimonial property- division of matrimonial property- recognition of indirect contribution during division of matrimonial property - whether a court had to consider direct and indirect contribution before division of matrimonial property- Constitution of Kenya,2010 article 45(3), Matrimonial Property Act,2013 section 6
Family law – marriages – dissolution of marriages - dissolution of foreign marriages - foreign decree of dissolution of a marriage – registration of a foreign decree of dissolution of a marriage - whether it was mandatory for a foreign decree of dissolution of marriage to be registered before a court could recognize it.
Jurisdiction – jurisdiction of the High Court – jurisdiction of the High Court to deal with land matters – allegations of illegality and fraud in land matters - whether the High Court had jurisdiction to entertain suits dealing with illegality and fraud in purchase of land

Brief facts:
The Applicant and the Respondent got married under Kikuyu customary law in 1994 and later solemnized their marriage on April 10, 1999 and were blessed with two children. In the year 1993 the Respondent purchased the Suit Property at Kayole and built apartments .
In July 1998 the Respondent purchased the Suit Property at Ruiru at Kshs.250,000/= and registered it in the joint names of the Appellant and Respondent. The Respondent began construction of their home on the said property a few months after the wedding with the help of the Applicant after which they later moved into the house.
The Applicant moved to the United States of America (USA) in July 2001and the Respondent joined him there in August 2002. Due to matrimonial differences the Applicant petitioned for divorce in the District Court of Sedgwick County, Kansas and the matter was heard, determined and the Court dissolved their marriage.
The Respondent returned to Kenya in December 2006 and took possession of the Suit Properties. Aggrieved by the Respondent’s actions the Applicant moved the Court on the ground that she contributed to the purchase of the properties and that her contribution was in the nature of monetary and non-monetary contribution including child care, compassion, management of the matrimonial home, management of the family businesses and properties.

Issues:

  1. Whether it was mandatory for a foreign decree of dissolution of marriage to be registered before a court could recognize it.
  2. Whether a court had to consider direct and indirect contribution before division of matrimonial property.
  3. Whether the High Court had jurisdiction to entertain suits dealing with illegality and fraud in purchase of land.
  4. Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 45 – Family
(3) Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.

Matrimonial Property Act
6. Meaning of matrimonial property
(1)For the purposes of this Act, matrimonial property means—

(a) the matrimonial home or homes;
(b) household goods and effects in the matrimonial home or homes; or
(c) any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.

(2) Despite subsection (1), trust property, including property held in trust under customary law, does not form part of matrimonial property.
(3) Despite subsection (1), the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights.
(4) A party to an agreement made under subsection (3) may apply to the Court to set aside the agreement and the Court may set aside the agreement if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust.

Held:

  1. The law of domicile played an important role in the determination of whether or not the Court to which a dispute had been presented had jurisdiction. The Court would only have jurisdiction over a suit for dissolution of marriage where the parties had been domiciled within the jurisdiction of that Court for the period allowed by the relevant law.
  2. At the time when the divorce decree was issued in the year 2003, both parties were domiciled in Kansas, USA. The District Court of Sedgwick County, Kansas (the Kansas Court) had jurisdiction in a marital matter in the circumstances. No material was placed before the Court to show that the Parties had not been resident in the Kansas long enough to confer jurisdiction or competence on the Kansas Court to handle their matter.
  3. The Kansas Court had jurisdiction to dissolve the marriage between the Applicant and the Respondent. Consequently, the order by the Kansas Court dissolving the Parties’ marriage was an order of a court of competent jurisdiction. It was valid and binding unless it was set aside, reversed or varied by the Court which made it or by a higher court on appeal in the same jurisdiction.
  4. The law required the Registrar of marriages to register a decree of dissolution marriage from a foreign country, but it was not a mandatory requirement. Therefore the Kansas Court Decree dissolved the Parties marriage.
  5. By the time the Respondent purchased the Suit Property in Ruiru in the year 1998, he was married to the Applicant under customary law. The Suit Property in Ruiru was acquired within the subsistence of marriage and was matrimonial property as far as section 6(1) of the Matrimonial Property Act was concerned.
  6. Under section 26(1) of the Land Registration Act the title of a registered proprietor was prima facie evidence that the proprietor was the absolute and indefeasible owner of the land subject to any encumbrances, easements restrictions and conditions contained or endorsed in the certificate. Such title could be challenged on the ground of fraud or misrepresentation to which the proprietor was proved to be a party and where the certificate of title had been acquired illegally, unprocedurally or through a corrupt scheme.
  7. The Court lacked jurisdiction to address the illegality and fraud alleged by the Applicant against the Respondent with regard to the Suit Property at Kayole as that issue regarding title to land could be challenged in the Environment and Land Division of the High Court.
  8. The Applicant substantially contributed to the development and management of the Suit property at Kayole during the subsistence of her marriage to the Respondent. It was the joint effort in acquisition and development of the property that resulted in finished apartments which were rented out. The Suit Property at Kayole was matrimonial property as far as section 6(1) of the Matrimonial Property Act was concerned.
  9. Article 45 of the Constitution gave both parties to marriage equal rights before, during and after marriage. It arguably extended to matrimonial property and was a constitutional statement of the principle that matrimonial property was shared 50%/ 50% in the event that the marriage came to an end.
  10. The provisions of sections 2, 6 & 7 of the Matrimonial Property Act, 2013 gave lifelife into the rights provided in article 45(3) of the Constitution. The Matrimonial Property Act recognized that both monetary and non-monetary contribution should have been taken into account in determining contribution.
  11. Where the disputed property was not so registered in the joint names of the spouses but was registered in the name of one spouse, the beneficial share of each spouse would have ultimately depended on their proven respective proportions of financial contribution either direct or indirect towards the acquisition of the property.However, in cases where each spouse had made a substantial but unascertainable contribution, it could have been equitable to apply the maxim equality is equity.
  12. A Trial Court ought to have interrogated the direct and indirect contribution of each party to the marriage in acquisition and development of the suit properties so as to inform the division of matrimonial properties after dissolution of the marriage.
  13. The Suit Property at Ruiru was purchased by the Respondent with assistance from the Applicant and registered in their joint names. There had to be financial contribution. From the year 1994 to 2001 the Applicant also provided non-monetary contribution; management of the matrimonial home, child care of the 2 children of the marriage, companionship and management of family businesses.
  14. In the absence of evidence of actual contribution by each party and competing versions of acquisition and development of the suit property at Kayole, the Applicant and Respondent each was entitled to 50% share in the property.

Application partly allowed

  1. The Suit properties at Ruiru and Kayole be sold and the proceeds shared equally between the parties.
  2. Each party to give priority to the other party to buy the other out on any of the properties after valuation of the properties.
  3. Each party to bear own costs.
CRIMINAL LAW Factors to Consider when Discontinuing a Murder Trial due to Settlement Between Families of the Accused and Deceased

Republic v Musili Ivia & another [2017] Eklr
Criminal Case No. 2 of 2016
High Court at Garissa
George Dulu,J
October 5, 2017
Reported by Kakai Toili

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Criminal Law – trial - murder trial- accused charged with offence of murder - application to discontinue a murder trial – factors to consider in discontinuing a murder trial – settlement reached between the families of an accused and the deceased - what were the factors to consider when discontinuing a murder trial due to settlement between families of the Accused and Deceased – Constitution of Kenya, 2010, article 157 (6) & (8) and 159 (2) (c) & (3)

Brief facts:
The Accused persons were charged with the offence of murder contrary to section 203 as read with 204 of the Penal Code. The Accused persons pleaded not guilty to the charge. On the date of the hearing the Principal Prosecuting Counsel informed the Court that clan members of the Deceased and the Accused had reached an agreement for payment for blood money under customs of the Kamba community, in the form of cows and bulls.
The Principal Prosecuting Counsel asked the Court to discontinue the trial on the ground that the kin of both the Deceased and the Accused persons had reached an amicable settlement and that in the circumstances it would have been impossible for the Prosecution to get relevant witnesses to come to court to testify in support of the Prosecution’s case.

Issue:

  1. What were the factors to consider when discontinuing a murder trial due to settlement between families of anAccused and Deceased?Read More...

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 157 - Director of Public Prosecutions.
(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may—

(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;
(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
(c) subject to clauses (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).

(8) The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.
Article 159 - Judicial authority
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);
(3) Traditional dispute resolution mechanisms shall not be used in a way that—

(a) contravenes the Bill of Rights;
(b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or
(c) is inconsistent with this Constitution or any written law.

Held:

  1. A request by the representative of the Director of Public Prosecution on discontinuing a murder trial on the ground that the kin of the Deceased and the Accused persons had reached an amicable settlement had to be considered on its own facts and circumstances. The provisions of the Constitution, the written law and international conventions had to be considered. If any of them prohibited settlement then the request had to be declined.
  2. The effect the proposed settlement would have on the interests of the victim, relatives of the victim, local community and the public at large had to be considered. In the circumstances of the instant case, the settlement agreement was not inconsistent with the spirit and purpose of article 159(2) (c) and (3) of the Constitution.
  3. There was no written law or International Convention that prohibited the amicable settlement proposed. The victim was dead and close relatives had agreed to the settlement. There was no objection from the community or the public.
  4. Under article 157(6) and (8) of the Constitution, the Director of Public Prosecutions had power to discontinue criminal proceedings subject to the permission of the Court.

Criminal proceedings against the accused persons discontinued, accused persons discharged

DEVOLUTION LAW A Governor does not have the Power to Dismiss a County Chief Officer

David Ogega Kebiro & another v Kisii County Public Service Board & another [2017] eKLR
Cause No. 389 of 2017
Employment and Labour Relations Court at Kisumu
Maureen Onyango, J
October 19, 2017
Reported by Kakai Toili

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Devolution Law – county governments – Governor – powers of the Governor – power to dismiss a county chief officer - whether a Governor had the power to dismiss a County Chief Officer – Constitution of Kenya, 2010, articles 41, 47&183; County Government Act, sections 36 &45,; Employment Act, 2007 sections 41,43 & 45
Devolution Law – county governments – county public service – offices in the county public service – county chief officer - whether the office of county chief officer was in the county public service – County Government Act, sections 2 & 45 (4)
Devolution Law – county governments – county public service – offices in the county public service – county chief officer – term of office of a county chief officer - whether the term of office of county chief officer came to an end together with the term of the county governor

Brief facts:
The Claimants were both chief officers of Kisii County Government having been appointed through a competitive process. The appointments were on fixed term contracts of 5 years effective from April 1, 2014.
On August 29, 2017 the Claimants received letters signed by the Acting County Secretary, Kisii County sending them on 45 days’ annual leave and were required to hand over to other people.
On October 30, 2017, Kisii County Government advertised several vacancies including 16 positions of chief officers, among the positions advertised were the positions of the Claimants. Concerned about the advertisement of their positions both Claimants immediately wrote to the Secretary Public Service Board expressing concern about the advertisement of their positions before their term had expired and without any formal communication. They sought information on the status of their contracts in relation to the advertisement. The County Secretary promised to look into the matter. Due to the fact that the closing date for the applications was September 12, 2017 at 4:00pm, the Claimants filed the instant suit on September 13, 2017.

Issues:

  1. Whether a Governor had the power to dismiss a County Chief Officer.
  2. Whether the office of County Chief Officer was in the County Public Service.
  3. Whether the term of office of County Chief Officer came to an end together with the term of the county governor.
  4. Read More..

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 41 - Labour relations.
(1) Every person has the right to fair labour practices.
(2) Every worker has the right—

(a) to fair remuneration;
(b) to reasonable working conditions;
(c) to form, join or participate in the activities and programmes of a trade union; and
(d) to go on strike.

(3) Every employer has the right—

(a) to form and join an employers organisation; and
(b) to participate in the activities and programmes of an employers organisation.

(4) Every trade union and every employers’ organisation has the right—

(a) to determine its own administration, programmes and activities;
(b) to organise; and
(c) to form and join a federation.

(5) Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.

Article 47 - Fair administrative action.
(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—

(a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and
(b) promote efficient administration.

County Government Act, 2012
Section 36 - Functions of the executive committee
(1) In addition to the functions provided under Article 183 of the Constitution, a county executive committee shall—

(a) supervise the administration and delivery of services in the county and all decentralized units and agencies in the county;
(b) perform any other functions conferred on it by the Constitution or national legislation; and
(c) carry out any function incidental to any of the assigned functions.

(2) In the performance of its functions, a county executive committee shall have power to determine its own programme of activities and every member of the committee shall observe integrity and disclosure of interest in any matter before the committee.

Section 45 – Appointment of county chief officers
(1) The governor shall—

(a) nominate qualified and experienced county chief officers from among persons competitively sourced and recommended by the County Public Service Board; and
(b) with the approval of the county assembly, appoint county chief officers.

(2) The office of a county chief officer shall be an office in the county public service.
(3) A county chief officer shall be responsible to the respective county executive committee member for the administration of a county department as provided under section 46.
(4) The county chief officer shall be the authorized officer in respect of the exercise of delegated power.
(5) The governor may re-assign a county chief officer.
(6) A county chief officer may resign from office by giving notice, in writing, to the governor.

Employment Act, 2007
Section 41 – Notification and hearing before termination on grounds of misconduct.
(3) Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.
(4) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.

Section 43 – Proof of reason for termination.
(1) In any claim arising out of termination of a contract, the employer shall be required to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.
(2) The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.

Section 45 - Unfair termination.
(7) No employer shall terminate the employment of an employee unfairly.
(8) A termination of employment by an employer is unfair if the employer fails to prove—

(a) that the reason for the termination is valid;
(b) that the reason for the termination is a fair reason—
(i) related to the employee’s conduct, capacity or compatibility; or
(c) that the employment was terminated in accordance with fair procedure.

(9) An employee who has been continuously employed by his employer for a period not less than thirteen months immediately before the date of termination shall have the right to complain that he has been unfairly terminated.
(10) A termination of employment shall be unfair for the purposes of this Part where—

(a) the termination is for one of the reasons specified in section 46; or
(b) it is found out that in all the circumstances of the case, the employer did not act in accordance with justice and equity in terminating the employment of the employee.

(11) In deciding whether it was just and equitable for an employer to terminate the employment of an employee, for the purposes of this section, a labour officer, or the Industrial Court shall consider—

(a) the procedure adopted by the employer in reaching the decision to dismiss the employee, the communication of that decision to the employee and the handling of any appeal against the decision;
(b) the conduct and capability of the employee up to the date of termination;
(c) the extent to which the employer has complied with any statutory requirements connected with the termination, including the issuing of a certificate under section 51 and the procedural requirements set out in section 41;
(d) the previous practice of the employer in dealing with the type of circumstances which led to the termination; and the existence of any pervious warning letters issued to the employee

Held:

  1. Section 45(1) of the County Government Act (the Act) provided that the Chief Officers be sourced competitively and recommended to the Governor by the County Public Service Board while section 45(4) expressly provided that the office of County Chief Officer was in the county public service and at section 45(4) that the County Chief Officer exercised delegated power.
  2. Under section 2 of the Act the only offices excluded from county public service were those of Governor, Deputy Governor, Members of the County Executive Committee and the Members of the County Assembly. The office of County Chief Officer was an office in the County Public Service.
  3. Besides the powers in t section 31 of the Act on the power of the Governor, section 36 on the functions of the Executive Committee and section 183 on the functions of County Executive Committees, both the Governor and the Executive could not exercise any other powers unless such powers were donated by legislation. That was expressly stated in both the Constitution and the Act. Jurisdiction was a matter regulated by the Constitution, Statute law and judicial precedent.
  4. The power to dismiss a County Chief Officer was not donated by any of the provisions of the Act. Section 45 of the Act only gave the Governor authority to appoint and to reassign a County Chief Officer and not any other power over the County Chief Officer.
  5. The powers of removal and dismissal in the Constitution and legislation where donated had been done very expressly, examples were the powers to remove the Governor, the Members of the County Executive Committee and the Speaker. No such provisions had been made with respect to the County Chief Officer.
  6. The Governor had no powers to dismiss a County Chief Officer and they did not serve at the pleasure of the Governor. The pleasure doctrine did not apply to them.
  7. Section 45 of the Act did not state that the powers to appoint Chief Officers had to be exercised by the Governor upon taking office even if the positions were not vacant. The only positions that left offices with the Governor were those which were either provided for by law or those appointments made at the discretion of the Governor.
  8. The term of office of a County Chief Officer did not come to an end when the Governor vacated office but in accordance with the terms of engagement as read with terms of service of other public officers.
  9. The Respondents could only terminate the employment of the Claimants in compliance with the provisions of the Constitution. The Claimants were protected by article 41 of the Constitution which prohibited unfair labour practices, article 47 which provided for a fair hearing and sections 41, 43 and 45 of the Employment Act. That meant that their contracts could only be terminated for valid grounds or upon effluxion of time when their contract terms lapsed. Any other termination would be unlawful.

Claim partly allowed

  1. The advertisement of the positions held by the Claimants declared null and void.
  2. An order of injunction issued restraining the Respondents from terminating the contracts of the Claimants before expiry thereof without due process.
  3. No orders for costs.

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