Kenya Law: Weekly Newsletter 016/2018

Weekly Newsletter 016/2018

Weekly Newsletter 016/2018



Kenya Law

Weekly Newsletter


Children Adoptees Have a Right to Know the Identity of their Parents, the Parent’s Origin and the Existence if any of their Siblings.
D W T v B N T & 3 others [2018] eKLR
Petition No. 46 Of 2016
High Court at Nairobi
Milimani Law Courts
Constitutional & Human Rights Division
April 18, 2018
J.M. Mativo, J
Reported By Felix Okiri

Download the Decision

 

Constitutional Law- fundamental rights and freedoms –rights of a child - rights of an adoptee – application to know biological parents and circumstances of adoption - whether an adopted child had a right to know his or her biological parents- what were the limitation of that right - Constitution of Kenya, 2010 articles 24,27, 28, 29, 35 and 45

Constitutional Law- fundamental rights and freedoms- rights of a child- enforcement of the Bill of Rights- whether a right to the information of the child’s background and the identifying information about his/her biological parents could be articulated as a fundamental right guaranteed in the Bill of Rights.

Civil Practice & Procedure- parties to a suit -joinder of parties-where a party was improperly enjoined in the suit- whether joinder, misjoinder or non-joinder of a party was sufficient to defeat a constitutional Petition - whether the Petition was bad for misjoinder of parties and for raising several causes of action- Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
 

Brief facts:

The Petitioner, a male adult, was an adopted son of the 1st and 2nd Respondents. He sought to know his biological parents and circumstances of his adoption from the 3rd Respondent. The Petitioner claimed that his rights under articles 27, 28 and 35 of the Constitution had been violated in that the adopting parents adopted him under circumstances unknown to him, yet they had denied him parental compassion, love, care and support.
The Petitioner claimed that he lived with the 1st and 2nd Respondents until he was 17 years when he was compelled by adverse treatment to leave their home. He stated that sometimes in 2011, he was charged, tried and convicted of the offence of violently robbing the 2nd Respondent. His appeal against the said conviction was pending in the Court of Appeal.
The Petitioner sought a declaration that despite not being their biological son and regardless of criminal proceedings against him, he was part of the 1st and 2nd Respondents’ family, and was consequently eligible to parental care, love and support and was entitled to enjoy the right to dignity, security of person, family and equality like other members of the family to the greatest extent possible.
The Petitioner had also enjoined the fourth Respondent, the British High Commission in the instant Petition.

 

Issues:

  1. Whether an adopted child had a right to know his or her biological parents.
  2. Whether a right to the information of the child’s background and the identifying information about his/her biological parents could be articulated as a fundamental ‘right’ guaranteed in the Bill of Rights.
  3. Whether the Petition was bad for misjoinder of parties and for raising several causes of action.

Relevant Provisions of the Law
Convention on the Rights of Child 1989
Article 8

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2. Where the child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.”
 

Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption.
Article 30

(1) The competent authorities of a contracting State shall ensure that information held by them concerning the child's origin, in particular information concerning the identity of his or her parents, as well as the medical history, is preserved.
(2) They shall ensure that the child or his or her representative has access to such information, under appropriate guidance, in so far as is permitted by the law of that State.”
 

The Declaration on Social and Legal Principles relating to the Protection and Welfare of Children
Article 9

... need of a foster or an adopted child to know about his or her background was to be recognized by persons responsible for the child's care, unless that was contrary to the child's best interests.
 

The Evidence Act
Section 107 (1)

Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist." Sub-section (2) provides that "when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
 

Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
Rule
5(b)

A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.
 

Rule 5 (d)

“The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—
(i) order that the name of any party improperly joined, be struck out; and
(ii) that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added”

Held:

  1. A person was significantly shaped by his identity as a person who was adopted and his biological identity was as much a part of his life as was his adopted identity. That information which was critical to the formation of a person’s identity was often inaccessible to most adopted children, who did not know who their biological parents were.
  2. Whereas the law in Kenya merely provided for adoption, it did not address any concerns or the rights of adopted children to know the identity of their biological parents, the circumstances that led to their adoption, and the suitability of the adopting parents.
  3. Whereas pertinent questions were determined by the court handling the adoption, there was no provision stating that such information was to be provided to the child either during minority or upon attaining the age of majority. Part X11 of the Children's Act lay down parameters as to who could adopt and under what conditions, but other than parental rights, it did not address pertinent rights of the adopted child such as: the right to identity, the right to be informed about his or her biological parents, the right to be informed of the circumstances leading to his adoption, and the right to know the whereabouts of her/his biological parents or the suitability of the adopting parents.
  4. Every person had the right to know where they came from and their family lineage. A big dilemma however arose in adoption cases. Adoption processes throughout the world were shrouded in secrecy, perhaps due to the sensitive nature of the relationship that was being severed or created out of the adoption exercise. The Children's Act was silent on the question of whether or not adopted children had a right to know their origin. Further, the Act was also silent on what information the children could or could not access and at what age. The information on the origin of the child was in the custody of the government and adoption agencies and the court handling the adoption. That lacuna in Kenya’s law led the Court to resort to international law as a source of law in Kenya.
  5. Article 8 of the Convention on the Rights of the Child provided that States Parties were to undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. It further provided that where the child was illegally deprived of some or all of the elements of his or her identity, States Parties had to provide appropriate assistance and protection, with a view to re-establishing speedily the child’s identity. Article 30 of the same convention provided that the competent authorities of a Contracting State were to ensure that information held by them concerning the child's origin, in particular information concerning the identity of the child’s parents, as well as the medical history, was preserved. It required State parties to ensure that the child or his or her representative had access to such information, under appropriate guidance, in so far as was permitted by the law of that State.
  6. The law in the United Kingdom provided that children could apply for a copy of their original birth certificate and for information about their birth family from the adoption agency, which arranged the adoption. Adult adoptees and birth family members could also apply to the Registrar General for entry of their names on the Adoption Contact Register which included the names of adopted persons and the relatives of adopted persons. In other Jurisdictions, the right was guaranteed once one reached the age of majority.
  7. From the child study report, one would be able to gather information as to who were the biological parents of the child, if the biological parents were known. There could be no objection in furnishing to the adoptive parents particulars in regard to the biological parents of the child taken in adoption, but it was to be made clear that it was to be entirely at the discretion of the adoptive parents whether and if so when , to inform the child about its biological parents. But if after attaining the age of maturity, the child wanted to know about its biological parents, there could not be any serious objection to the giving of such information to the child because after the child had attained maturity, it was not likely to be easily affected by such information and in such a case, the adoptive parents could, in exercise of their discretion, furnish such information to the child if they thought fit.
  8. In Kenya, when issues of the need for the child to know the biological parents arose, the Court could refer to the Constitution for reference and guidance. Article 35 of the Constitution provided that every citizen had the right of access to information held by the State, information held by another person and required for the exercise or protection of any right or fundamental freedom. Information regarding adoption of children in Kenya was held by the State and adoption agencies. Article 35 enabled the child either during the age of minority through her legal guardian or after attaining the age of majority to apply to be furnished with information about their biological parents.
  9. Article 31 of the Constitution provided that every person had the right to privacy, which included the right not to have information relating to their family or private affairs unnecessarily required or revealed. That provision brought about a competition of rights and interests. The biological parents of the child had the right to have their matters kept in secrecy but the child on the other hand had the right to the information and to know their true identities. Article 53 of the constitution provided that the best interest of the child was of paramount importance in all matters affecting the child. Children adoptees had a right to know the identity of their parents, the parent’s origin and the existence if any of their siblings. In pursuing the right to know one’s origins as a fundamental right, the three interests that emerged were - medical, legal and genetic. Also, when enjoying the right, one had to strike a balance between the need for one to know the biological parents, and protection of confidentiality/privacy of the biological and adopting parents.
  10. The need to know one’s parentage and background was crucial to children and adults who did not have that information. That right to know one’s origins meant having the information and identity of one’s biological parents and conditions of birth. The right to know stemmed from the desire to know the identity of self. Social scientists had considered the meaning of identity to be determined by three main aspects: self-definition, coherence of personality and a sense of continuity over time.
  11. That meant that identity was often determined by social changes and one’s definition of self was affected by how a relationship was seen in the social context. Adoption transgressed notions of identity and the journey of identity development in Kenya was complex and problematic for adopted persons. Adoption was governed by different kinds of social arrangements; those arrangements had implications on the development of the identity of the child.
  12. Many adopted persons felt the need to know information about their birth parents. That need translated to an assertion of the right to know one’s origins. There were three main needs to have that information –
    1. There was often the desire to know one’s medical and health history and for that purpose, knowing the medical history of one’s parents and ancestors became important.
    2. One’s legal interest in property, which blood relationship could confer on children. Those two interests were subsidiary interests.
    3. The primary interest was a psychological need for identity. The psychological need to know one’s roots or identity was found to be the most important reason as to why adoptees wanted to know about their biological parents since it underlay the need to know and could shape the identity of an adopted person.
  13. There was a psychological need in all people, manifest principally among those who grew up away from their original families, to know about their background, geneology, and personal history, if they were to grow up feeling complete and whole. The idea of the importance of blood ties and genes was common to most people and they felt profoundly deracinated if brought up with no knowledge of their blood origins. That psychological need to know one’s origins had now been recognized as . It was an important element in one’s psychological balance to know where one came from and that everyone had a right to know the truth about their origins.
  14. Adopted persons who did not have information about their roots often had difficulty establishing a personal identity. Problems with identity formation were particularly acute during adolescence and at crisis points in adulthood. A diminished sense of self was also related to genealogical bewilderment. Genealogical bewilderment could occur when children either did not have any knowledge of their biological parents or possessed only uncertain knowledge and the resulting State of confusion and uncertainty fundamentally undermined children’s sense of security, thus affecting their mental health. In addition to the psychological need, medical crises also often precipitated the need for information about biological relatives. Ranging from allergies to searches for transplant donors, medical needs could have left adoptees without sufficient information to get proper treatment. Short of a crisis, impending marriage and childbearing led to concerns about genetic disease and hereditary traits. Other reasons for open records advanced by adoptees included inheritance rights, religion, and simply a longing to meet their birth parents.
  15. It was beyond doubt that there was an international recognition of the Child’s Right to identity as a fundamental right. That psychological need to know one’s identity had been articulated as a right in the Convention for the Rights of the Child 1989 (CRC) in articles 7 and 8.The CRC had gone on to protect several rights of the child, such as the right to identity that were not recognized as fundamental human rights before, a recognition that it was a right worthy of international recognition. “Identity” was not defined under the CRC and only instances of identity such as nationality, name and family relations were listed.
  16. Article 8 was particularly meant to address unusual conditions such as natural parents versus adoptive parents and other such conditions. Article 8, therefore imposed an obligation on the State to not only preserve the identity of a child i.e. to preserve all the information relating to the biological parents of the adopted child, but also not to deprive the child of such information and to assist the child in getting such information.
  17. The CRC thus affirmed that an adoptee could seek a right against the State or any person for providing him/her information about her identity and about her biological parents. In addition to the CRC, the child’s right to know her identity was also protected in the Hague Convention on Protection of Children and Cooperation in Respect of Inter- Country Adoption. In article 30, it required State authorities to ensure that information held by them concerning the child’s origin, in particular information concerning the identity of his or her parents, as well as the medical history, was preserved and that the child or his or her representative had access to such information, under appropriate guidance, in so far as it was permitted by law in that State.
  18. The child’s right to know his or her origin was derived from the general right to privacy guaranteed under article 17 of the International Covenant on Civil and Political Rights 1966.The right to privacy would include the right to know and receive information of one’s family and private life and guaranteed against arbitrary interference with the same. The right to privacy and family life was also guaranteed under article 8 of the European Convention of Human Rights.
  19. That need of the child to know about her background was also recognized in the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally in article 9 which stated that the need of a foster or an adopted child to know about his or her background was to be recognized by persons responsible for the child's care, unless that was contrary to the child's best interests.
  20. The competing rights such as the right to privacy for the biological parents and the adopting parents all had to be balanced. With those competing interests, courts were obligated to ensure that the best interests of the child where the child was still a minor, had to prevail over all interests of all other parties. On the other hand, where the child had attained the age of majority as in the instant case, the reasons for refusal to supply the information had to satisfy the limitations test under article 24 of the Constitution.
  21. The law in Kenya was in favour of the disclosure. First, the adopted person had a constitutional right to dignity and privacy which included right to know their biological parents.By insisting on the information, the person was seeking to exercise a fundamental right recognized in Kenya’s Constitution and international Instruments discussed above. Article 35 of the constitution provided that every citizen had the right of access to information held by the state, information held by another person and required for the exercise or protection of any right or fundamental freedom.
  22. Information regarding adoption of children in Kenya was held by the State and adoption agencies. The only limitation in the case of a minor would be of the child contemplated under article 53 (2) of the Constitution. For an adult as in the present case, the reasons for refusal could only pass constitutional muster if they satisfied limitation of rights under article 24. For example, the need to ensure that the disclosure did not prejudice the rights and fundamental freedoms of others. Examples here would have included the right to privacy of the biological parents and the Adoptive parents, but even then, the burden lay on the person who sought to justify the limitation to demonstrate to the Court that the requirements of article 24 of the Constitution had been satisfied.
  23. There was no material before the Court to demonstrate that the 3rd Respondent handled the adoption in question or had in its custody, care or control the information sought. The adoption was done in Court. The Petitioner did not avail the court proceedings, judgment and documents produced in court in the adoption proceedings to demonstrate that indeed the 3rd Respondent was involved in the Adoption. The Court had the Petitioner’s averments on one side and a denial by the 3rd Respondent on the other and it was expected to make a determination.
  24. All cases were decided on the legal burden of proof being discharged (or not). Whether one liked it or not, the legal burden of proof was consciously or unconsciously the acid test applied when coming to a decision in any particular case.
  25. It was a fundamental principle of law that a litigant bore the burden of proof in respect of the propositions he asserted to prove his claim. Decisions on violation of constitutional rights were not to be made in a factual vacuum. To attempt to do so had the impact of trivializing the Constitution and inevitably result in ill-considered opinions. The presentation of clear evidence in support of violation of constitutional rights was not, a mere technicality; rather, it was essential to a proper consideration of constitutional issues. Decisions on violation of constitutional rights could not be based upon the unsupported hypotheses.
  26. There was also no evidence that the Petitioner ever requested the information in question from the 3rd Respondent or any of the Respondents and was denied.
  27. Failure by the Petitioner to adduce evidence to link the 3rd Respondent with the adoption led the Court to the irresistible conclusion that there was no material for the Court to conclude that the 3rd Respondent handled the adoption in question or had in their custody, control or power the information sought. Consequently, the answer to the issue under consideration was in the negative.
  28. The 1st and 2nd Respondents cited provisions of the Civil Procedure Rules and heavily relied on decisions rendered in civil cases. They over looked the fact that the case was a constitutional Petition seeking to enforce fundamental rights and that the same was expressed under the provisions of the Constitution. The proceedings were governed by
  29. It was evident both from the Constitution and the rules which required that substantive justice be done that the joinder, misjoinder or non-joinder of a party was not sufficient to defeat a constitutional Petition. Those rules were in accord with the requirements of the Constitution that in exercising judicial authority, the Court was to seek to do substantive justice, hence the provisions of article 159 (2)(d) of the Constitution which provided that . In the circumstances, the objection which premised on the alleged misjoinder of parties failed.
  30. In a mathematical proof, elegance was the minimum number of steps to achieve the solution with greatest clarity. In dance or the martial arts, elegance was minimum motion with maximum effect. In filmmaking, elegance was a simple message with complex meaning. The most challenging games had the fewest rules, as do the most dynamic societies and organizations. An elegant solution was quite often a single tiny idea that changed everything. Elegance was the simplicity found on the far side of complexity.
  31. While elegance in a pleading was not a precondition to its legitimacy, it was an aspiration which, if achieved, could only but advance the interests of justice. A poorly drawn pleading, on the other hand, which did not tell a coherent story in a well ordered structure, would fail to achieve the central purpose of the exercise, namely communication of the essence of case which was sought to be advanced.
  32. Pleading was not to be dismissed as a lost art. It had an important part to play in civil litigation conducted within the adversarial system. Crafting a good pleading called for precision in drafting, diligence in the identification of the material facts marshaled in support of each allegation, an understanding of the legal principles which were necessary to formulate complete causes of action and the judgment and courage to shed what was unnecessary.
  33. Although a primary function of a pleading was to tell the defending party what claim it had to meet, an equally important function was to inform the court or tribunal of fact precisely what issues were before it for determination.
  34. The function of a pleading in civil proceedings was to alert the other party to the case they needed to meet and hence satisfy basic requirements of procedural fairness and further, to define the precise issues for determination so that the court could conduct a fair trial. The cardinal rule was that a pleading had to state all the material facts to establish a reasonable cause of action (or defence). The expression material fact was not synonymous with providing all the circumstances. Material facts were only those relied on to establish the essential elements of the cause of action. The instant pleading was not so prolix that the opposite party was unable to ascertain with precision the causes of action and the material facts that were alleged against them. The issues raised in the Petition were not confusing. The objection based on the said ground thus failed.
  35. The Petitioner was an adult in his late thirties or thereabouts. He could not be heard to say he had a fundamental right to receive financial support from his parents or even to be facilitated to travel abroad as of right as he alleged. Failure to visit him in prison could have been distressing but the victims of the crime were his parents. They could have been distressed too.
  36. The apprehension that the adoptee could have been disinherited remained a mere apprehension. Courts did not deal with hypothetical situations. Differently put, whether or not the Petitioner’s fear of his right to inherit his parents could be canvassed in the instant Petition raised common law principles in relation to what were called abstract, academic or hypothetical questions. The principle is called ripeness; it prevents a party from approaching a court prematurely at a time when he/she has not yet been subjected to prejudice, or the real threat of prejudice, as a result of the conduct alleged to be unconstitutional.
  37. The essential flaw in the applicants' cases was one of timing referred to as ‘ripeness’. The doctrine of ripeness serves the useful purpose of highlighting that the business of a court is generally retrospective; it deals with situations or problems that have already ripened or crystallised, and not with prospective or hypothetical ones. Although, the criteria for hearing a constitutional case were more generous than for ordinary suits, even cases for relief on constitutional grounds were not decided in the air. The time of the instant Court was too valuable to be frittered away on hypothetical fears of corporate skeletons being discovered.
  38. It had always been a fundamental feature of Kenya’s judicial system that the Courts decided disputes between the parties before them; they did not pronounce on abstract questions of law when there was no dispute to be resolved. It was perfectly true that usually the court did not solve hypothetical problems and abstract questions and declaratory actions could not be brought unless the rights in question in such action had actually been infringed. The requirement of a dispute between the parties was a general limitation to the jurisdiction of the Court. The existence of a dispute was the primary condition for the Court to exercise its judicial function. Ripeness asked whether a dispute existed, that was, whether the dispute had come into being.
  39. In the instant case, a dispute on the alleged inheritance rights did not exist. Before the Court was a constitutional Petition seeking declarations premised on alleged violation of constitutional rights but not a succession dispute. A dispute premised on alleged inheritance right was a matter primarily to be determined in succession proceedings where beneficiaries were identified and their rights over the property, if any, determined.
  40. On the question of ripeness, the court was being asked to make a declaration on an issue whether the Petitioner was part of the 1st and 2nd Respondents family, despite not being their biological son and regardless of criminal proceedings against him. The Petitioner had however not demonstrated that a dispute existed. There was nothing on record to show that the parents had denied, disowned the Petitioner as their son.
  41. Courts decided disputes between the parties before them; they did not pronounce on abstract questions of law when there was no dispute to be resolved. The court did not solve hypothetical problems and abstract questions and declaratory actions could not be brought unless the rights in question in such action had actually been infringed. The declaration sought if granted in the instant Petition, owing to the peculiar circumstances of the case, would have been tantamount to determining succession rights or property rights or declaring the Petitioner a beneficiary which would have had far reaching consequences because it would have amounted to encroaching in to the mandate of the succession court in the event of a succession dispute.
Orders
Petition dismissed with no orders as to costs.
Kenya Law
Case Updates Issue 016/2018
Case Summaries

CONSTITUTIONAL LAW Court Grants Compensation for Property which was Compulsorily Acquired by the State Without Compensation.

Uasin Gishu Memorial Hospital Limited v Moi Teaching and Referral Hospital Board & 2 others
Civil Appeal No 184 of 2012
Court of Appeal at Nairobi
Askie-Makhandia, W Ouko & A K Murgor, JJ A
October 6, 2017
Reported by Beryl A Ikamari

Download the Decision

Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-form and content of a petition-particulars which need to be pleaded when the enforcement of fundamental rights and freedoms was sought -whether an Originating Summons filed to enforce fundamental rights and freedoms was competent in the sense that it set out the required particulars-Constitution of Kenya (repealed), sections 70(a), 70(b) & 75; Constitution of Kenya (Supervisory, Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules 2006 (the Gicheru Rules), rules 11, 12 & 13.
Statutes-interpretation of the provisions of a statute-definition of a state corporation-where an entity was a company limited by guarantee without a share capital-where such a company was not controlled by the Government or a state corporation or established as a state corporation under section 3 of the State Corporations Act-whether such a company fitted into the definition of a state corporation-State Corporations Act (Cap 446) sections 2 & 3.
Constitutional  Law-fundamental rights and freedoms-right to property-compulsory acquisition of land by the State-proof of ownership of land-change of land registration from the Registration of Titles Act to the Registered Land Act-where there were allegations of compulsory acquisition without compensation-Constitution of Kenya (repealed), sections 70 & 75.
Constitutional Law-enforcement of fundamental rights and freedoms-remedies available for a breach of fundamental rights and freedom-breach of the right to property-compulsory acquisition of property by the State without compensation-circumstances when it would be appropriate to grant compensation as opposed to granting title to acquired land to a litigant-Constitution of Kenya (repealed), sections 75 & 84.

Brief facts:
The Appellant’s main assertion was that it was the registered proprietor of the suit premises on which it operated a hospital, known as Uasin Gishu Memorial Hospital Limited, for the benefit of the public since 1961. Further, the Appellant said that via Legal Notice No 78 of 1998, the Respondents acquired its assets without following due process of law. The Respondents took over the hospital's management and assets. The 1st Respondent, the Moi Teaching and Referral Hospital Board, was established on the suit premises, as a state corporation under the State Corporations Act.
The Registrar of Companies filed a Legal Notice in the Kenya Gazette of August 20, 2004 which expressed the intention to dissolve the Appellant and was followed by the Legal Notice of February 4, 2005, which struck off the Appellant from the Register of Companies. The Appellant was dissolved on February 9, 2005. On March 11, 2005, there was a physical takeover of the hospital in favour of the 1st Respondent and the takeover was done in breach of a court order issued in 1998.
On November 25, 2005, the Appellant's name was restored in the Register of Companies, after the filing of a suit by the Appellants (Miscellaneous Cause No. 350 of 2005). The Court also issued orders for the restoration of the Appellant's business, assets and property to the position there were in prior to the Appellant's dissolution. After obtaining those orders, the Appellant filed an Originating Summons at the High Court which sought declaratory reliefs and conservatory orders, whose intended effect was to reinstate the Appellant into the suit premises.
At the High Court the Originating Summons was found incompetent for failure to specifically plead on how the rights to life, liberty, security and protection of the law had been infringed. The High Court also declined to grant the orders sought while declining to make a determination on ownership of the suit premises on the basis that it was a disputed fact which required evidence to be adduced. The Appellant lodged an appeal at the Court of Appeal.

Issue:

  1. Whether the Originating Summons was competent in the sense that it adequately set out particulars specifying the fundamental rights and freedoms that had allegedly been violated, the sections of the Constitution which recognized them and the manner in which the alleged violation was committed.
  2. Whether the Appellant was a public or private entity and whether it was a state corporation.
  3. To which party did the suit premises belong?
  4. Whether Legal Notice No 78 of 1998, under which the assets, liabilities and management of the suit premises was acquired by the Moi Teaching and Referral Hospital Board, amounted to a violation of the rights of Uasin Gishu Memorial Hospital Limited.
  5. What nature of reliefs was appropriate? Read More...

Held:

  1. On a first appeal, the duty of the Court was to analyse and re-evaluate the evidence on record and reach at its own conclusions. The Court would only interfere with the High Court's finding of fact where it was based on no evidence or a misapprehension of the evidence or where the Court was shown demonstrably to have acted on wrong principles in arriving at a finding.
  2. At the time the Originating Summons was filed, the rules applicable to suits for the enforcement of fundamental rights and freedoms were the Constitution of Kenya (Supervisory, Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules 2006 (the Gicheru Rules). Rule 11, 12 and 13 of the Constitution of Kenya (Supervisory, Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules 2006 (the Gicheru Rules) stipulated the procedure that governed such claims. Where a person alleged a contravention or a threat of contravention of a right under the Constitution of Kenya (repealed), he or she had to set out the specific right infringed and the particulars of the infringement or threat of infringement.
  3. In the originating summons, allegations were made that property, the Hospital, was forcefully and illegally acquired in violation of constitutional rights including the right against deprivation of property without compensation recognized under section 75 of the Constitution of Kenya (repealed.) However, there was no prayer for compensation in the originating summons. Additionally, the affidavit of the Appellant's Company Secretary provided particulars of the Appellant's rights concerning the hospital and the suit properties which were infringed.
  4. The infringements of sections 70(a), 70(c) & 75 of the Constitution of Kenya (repealed) were adequately defined and the elements essential to a valid constitutional petition were present. To that extent, the Originating Summons was competent.
  5. The definition of a state corporation was provided in section 2 of the State Corporations Act. Under that provision, a company registered under the Companies Act was not a state corporation unless it was wholly owned or controlled by the Government or a state corporation or it had been declared a state corporation by the President.
  6. The Appellant was registered as a company under section 4(1) of the Companies Act (repealed). The Appellant's Certificate of Incorporation confirmed that it was registered under the Companies Act (repealed) on August 10, 1961 as a company limited by guarantee and not having a share capital.
  7. The Government did not hold any position of control and neither was it in control of the Appellant and therefore the Appellant was not a state Corporation within the meaning of section 2 of the State Corporations Act. Additionally, there was nothing to show that the retired President established the Appellant as a state corporation under section 3 of the State Corporations Act.
  8. The Appellant was neither a government entity nor a state corporation or a local authority. It was a private legal entity, registered under the Companies Act, under the control and direction of its own directors and members, and it was capable of owning its own assets, rights and interests.
  9. The suit properties belonged to the Appellant. It was uncontroverted that Title No I.R. 2958, being the original title for the suit properties was transferred to the Municipal Board of Eldoret and the District Council of Uasin Gishu as tenants in common for Kshs. 10/=, and on or about October 31, 1961, it was then transferred, again for a consideration of Kshs. 10/= to the Appellant, a company limited by guarantee.
  10. There was a connection between the titles of the suit properties registered under the Registered Land Act, and the original Title No. I.R. 2958 registered under the Registration of Titles Act. Title No. I.R. 2958 was transferred and registered in the Appellant’s name on October 31, 1961 and when it was registered under the Registered Land Act, that fact was noted on the register of Title No I.R. 2958. It was still owned by the Appellant and the allegations that the suit premises were fraudulently registered in the Appellant's name under the Registered Land Act were unfounded.
  11. Section 70(a), 70(c) and 75 of the Constitution of Kenya (repealed) provided for the right to life, liberty, security of the person and protection of the law and protection of the privacy of his home and from deprivation of property without compensation.
  12. The Legal Notice declared under the hand of the retired President that the Appellant's hospital and the suit properties be transferred and vest in the 1st Respondent. Accordingly, in a letter dated February 9, 2005 the 3rd Respondent directed the 1st Respondent to take over the Appellant's Hospital as ordained by the impugned Legal Notice.
  13. The purport of the Legal Notice was to take over the Appellant's properties as if they belonged to the Government, irrespective of the Appellant's rights or interests. It amounted to compulsory acquisition of the Appellant's properties in a manner contrary to sections 70 and 75(1) of the Constitution of Kenya (repealed.) The Legal Notice did not accord with the provisions of the Land Acquisition Act that set out mandatory procedures and processes for the compulsory acquisition of land by the Government.
  14. In so far as the Legal Notice included a statement that purported to deprive the Appellant of the hospital and the suit properties without due process and compensation as stipulated by the law, it was unlawful and illegal, and neither the retired President nor the Government had a right or power to publish an order that would constitute a violation of the Appellant’s rights.
  15. Section 84 of the Constitution of Kenya (repealed) empowered a court to make such order, issue such writ and give such direction as it considered appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 70 to 83 of that Constitution.
  16. Given the finding that the Appellant had proprietary rights and interests in the hospital and suit premises, it was necessary to declare that to the extent that the impugned Legal Notice purported to vest or transfer the Appellant's rights, duties, obligations, assets and liabilities in the hospital and the suit properties to the 1st Respondent, it was a violation of the Appellant’s fundamental right to ownership of property under sections 70 (a) and (c) and 75 of the Constitution of Kenya (repealed). It was therefore unconstitutional, illegal, null and void.
  17. Considering that several years had elapsed since the takeover of the hospital and related facilities by the 1st Respondent and appreciating the nature of services rendered by the hospital, it would be unconscionable to grant mandatory prayers whose effect would be to eject the 1st Respondent and reinstate the Appellant. Under the circumstances, the appropriate order was one of compensation under section 75 of the Constitution of Kenya (repealed.)

Appeal allowed.

CONSTITUTIONAL LAW The Tax Provisions in the Finance Act 2017 Relating To the Betting, Lotteries And Gaming Industry Are Not Unconstitutional

Pevans East Africa Limited & another v Chairman Betting Control and Licensing Board & 7 others
Petition No 353 of 2017
High Court at Nairobi
Milimani Law Courts
Constitutional & Human Rights Division
J M Mativo, J
December 28, 2017
Reported by Beryl A Ikamari

Download the Decision

Constitutional Law-National Assembly-role of the Senate in law-making-legislative competence of the National Assembly with respect to a piece of legislation which dealt with the functions of County Governments-effect of failure to include Senate in the enactment of such a Bill-application of the pith and substance doctrine-whether the Finance Bill which included provisions for taxation in the betting, lotteries and gaming industry could be enacted without the involvement of the Senate given that the betting, lotteries and gaming industry was within the functions of County Governments and that taxation was a function of the National Government-Constitution of Kenya 2010, articles 109 (3), 110 (1) (a), 114, & 209.
Devolution-taxation-the mandate of the National Government to impose taxes and the mandate of the County Government over the betting, lotteries and gaming industry-imposition of taxes in the betting, lotteries and gaming industry-whether there was an interplay of roles between the County Government and National Government with respect to the imposition of taxes in the betting, lotteries and gaming industry-Constitution of Kenya 2010, articles 109 (3), 110 (1) (a), 114, & 209.
Constitutional Law-national values and principles of governance-public participation-circumstances in which public participation would be deemed to be sufficient-whether an enactment would need to incorporate views collected during public participation in order for it to be valid-whether the Finance Act 2017 was enacted in a process that included sufficient public participation-Constitution of Kenya 2010, articles 10 & 118 (1) (b).
Constitutional Law-Parliament-legislative process-presentation of a Bill for presidential assent-power of the President to refuse to assent to a Bill-extent of the powers of the President upon refusing to assent to a Bill-whether the President could make recommendations relating to amendments to be made to a Bill presented to him for assent-Constitution of Kenya 2010, article 115.
Taxation Law-principles of taxation-tax equity-considerations of the Court in assessing whether a tax was unfair and burdensome-nature of proof required for allegations that taxes were imposed discriminatively-whether the imposition of a 35% deterrent tax on revenue in the betting, lotteries and gaming industry under the Finance Act 2017, met the requirements of tax equity.
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-right to property-considerations of the Court in assessing whether a limitation placed on the right to property was justified-whether imposition of taxes, which were alleged to be excessive, unfair and burdensome, amounted to a violation of the right to property-Constitution of Kenya 2010, article 40.
Civil Practice and Procedure-abuse of court process-nature of conduct which would entail abuse of court process-filing a multiplicity of suits for the same cause of action and non-disclosure of material facts-where two different Petitions were filed by two companies whose directorship was composed of the same persons, with respect to the same cause of action, seeking similar reliefs without informing the Court of the interest of the directors in the two companies-where there was a situation of abuse of court process under the circumstances.

Brief facts:
There were two petitions in Court, namely; petition numbers 353 of 2017 and 505 of 2017 and they were consolidated. The petitions challenged the constitutionality of sections 29A, 44A, 55A and 59B of the Betting, Lotteries and Gaming Act and sections 29, 30, 31 and 32 of the Finance Act 2017.
Initially, the Finance Bill for the year 2016/2017 proposed to impose 50% tax chargeable on revenue from betting, gaming, lotteries and prize competitions with the purpose of regulating and controlling betting. The purpose was to minimize or eliminate gambling amongst the youth. When the Bill was subjected to public participation, the proposed 50% tax was found to be unsuitable and the result was that it was deleted. The Bill was passed by Parliament on May 30, 2017 and presented for Presidential assent with the 50% tax omitted from it.
On the basis of the omission of the 50% tax on revenue from betting, gaming, lotteries and prize competitions, the President declined to assent to the Finance Bill 2017. He proposed a tax rate of 35% to be imposed on revenue in the betting and gaming industry. In response, Parliament implemented the presidential directive and amended sections 29A, 44A, 55A and 59B and re-submitted the amended Finance Act 2017 for presidential assent. The taxes were set to come in force on January 1, 2018. The Petitioners challenged the legality of the presidential directive before the Court.

Issues:

  1. Whether it was necessary to involve the Senate in enacting the Finance Act, 2017 which included provisions for taxation in the betting, lotteries and gaming industry.
  2. Whether there was sufficient public participation in the enactment of the Finance Act 2017 which amended the Finance Act 2016.
  3. What was the extent of the President's mandate under article 115 of the Constitution, where a Bill was presented for purposes of presidential assent?
  4. Whether tax imposed on the betting, lotteries and gaming industry by the Finance Act 2017 was unfair and burdensome.
  5. Whether the Petitioners who were engaged in businesses in the betting, lotteries and gaming industry had a legitimate expectation that taxes would not be imposed as a deterrent against the youth involving themselves in activities in the industry.
  6. Whether the 35% tax imposed on the betting, lotteries and gaming industry by the Finance Act 2017 amounted to a violation of the right to property.
  7. Scope and applicability of the pith and substance doctrine to situations where the National Assembly had exceeded its legislative competence and encroached into the legislative competence of the Senate. Read More..

Held:

  1. When the constitutionality of legislation or the process of its enactment was challenged, the Court would determine whether through the application of all legitimate interpretive aids, the impugned legislation and the entire legislative process was capable of being read in a manner that was constitutionally compliant. In interpreting the law, courts would infuse the law with the values of the Constitution.
  2. Article 2 (4) of the Constitution provided that any law, that was inconsistent with the Constitution was void to the extent of the inconsistency, and any act or omission in contravention of the Constitution was invalid. Under article 259 of the Constitution, the Constitution had to be interpreted in a manner that promoted it's purposes, values and principles, advanced the rule of law and human rights and fundamental freedoms in the Bill of Rights, permitted the development of the law and contributed to good governance. Accordingly, when the constitutionality of a statute was challenged, the Court was under a duty examine the objects and purport of the legislation and to read that legislation, as far as possible, in conformity with the Constitution.
  3. The Senate of the Republic of Kenya formed one of the two houses (chambers) of the Parliament of the Republic of Kenya. The mandate of the Senate was to safeguard and promote the interests of Counties. The Senate had to endeavour to influence national laws and revenue amounts that relate to Counties as well as participate in oversight over state officers.
  4. A Bill not concerning County Governments would be considered only in the National Assembly, and passed in accordance with article 122 of the Constitution and the Standing Orders of the Assembly. A Bill concerning County Governments could originate in the National Assembly or the Senate, and it would be passed in accordance with articles 110 to 113, and articles 122 and 123 of the Constitution and the Standing Orders of the Houses.
  5. Under article 110 of the Constitution, a Bill containing provisions affecting the functions and powers of County Governments was within the definition of a Bill concerning County Governments. Section 4, part 2 of the fourth schedule provided that cultural activities, public entertainment and amenities including betting, casinos and other forms of gambling were within the functions and powers of County Government.
  6. Pith and substance is a legal doctrine in constitutional interpretation used to determine the head of power under which a given piece of legislation falls. The doctrine is primarily used when a law is challenged on the basis that one level of government has encroached upon the exclusive jurisdiction of another level of government. The doctrine of pith and substance says that where the question arises of determining whether a particular law relates to a particular subject (mentioned in one list or another), the Court looks at the substance of the matter.
  7. In the case of national legislation, the application of the pith and substance test to legislative competence would lead to the conclusion that the Bill's pith and substance placed it wholly within the competence of the National Government, even though certain provisions of the legislation (which were ancillary or incidental) were within the functional areas of County Governments. In the case of County legislation, the pith and substance test would lead to the conclusion that the Bill's pith and substance placed it wholly within the functions of County Governments although certain provisions of the Bill (ancillary or incidental) were outside of the competence of County Governments. The extent of the encroachment of the legislation into matters beyond its legislative competence would be an element in determining whether the legislation was in truth making a law on a subject beyond its competence.
  8. A law found to be valid under the pith and substance analysis of the law could also have some incidental effects upon matters outside the Government's jurisdiction. That would be tolerated as the law was classified by its dominant characteristics. The modern approach to constitutional interpretation was to allow for a fair amount of interplay and overlap into the other level of Government's jurisdiction.
  9. Pith means "true nature" or "essence of something" and substance means "the most important or essential part of something. The pith and substance of the impugned Bill was taxation. Taxation was a function of the National Government while betting, casinos and other forms of gambling were functions of County Governments. There was some interplay. The modern approach to constitutional interpretation was to allow a fair amount of interplay and overlap into the other level of Government's jurisdiction.
  10. The preamble of the Finance Bill 2017 stated that it was an Act of Parliament enacted to amend the law relating to various taxes and duties and for matters incidental thereto. The purpose of the legislation was to amend the law relating to various taxes and duties. Under article 209 of the Constitution only the National Government could impose taxes and charges. That would exclude County Governments from the imposition of such taxes and charges.
  11. Under article 114 of the Constitution a money Bill included a Bill that contained provisions dealing with taxes. Therefore, a Bill such as the impugned legislation that dealt with taxes was a money Bill.
  12. It is an elementary rule of constitutional construction that no one provision of the Constitution is to be segregated from the others and to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and be interpreted as to effectuate the greater purpose of the instrument. If any provision, read in its context, can reasonably be construed to have more than one meaning, the Court must prefer the meaning that best promotes the spirit and purposes of the Constitution and the values stipulated in article 259 of the Constitution. 
  13. A reading of the provisions of articles 109 (3), 110 (1) (a) & 114 (3) of the Constitution together with  article 209(1) of the Constitution which conferred power to impose taxes upon the National Government, disclosed no inconsistency in the finding that the imposition of taxes was a function of the National Government and that the Bill was correctly processed. It was not necessary to involve the Senate in the enactment. The pith and substance of the Bill placed it within the functions of the National Government. 
  14. Public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfilment of constitutional dictates. A proper analysis of articles 10, 118 (1) (b) and Standing Order  127 (3) would lead to the conclusion that Parliament was obligated to facilitate public participation and stakeholder engagement in the process leading to the enactment of the impugned legislation.
  15. The evidence tendered included a newspaper advertisement inviting submissions from the public, submissions from various stakeholders, correspondence showing that retreats were held to consider the subject and minutes of various meetings. The Petitioners admitted that there were discussions and views from various stakeholders some of whom were opposed to the introduction of the taxes. Therefore, prior to the enactment of the impugned legislation, there was sufficient public participation.
  16. Public views ought to be considered in the decision making process and as far as possible the product of the legislative process ought to be a true reflection of the public participation so that the end product bears the seal of approval by the public. In other words the end product ought to be owned by the public. However, public participation would not mean that the collected view would have to prevail. The fact that certain views were not incorporated into an enactment would not justify an invalidation of the enactment.
  17. Under article 115(1)(b) of the Constitution, the President had power to refer a Bill back to Parliament for reconsideration by Parliament, while noting any reservations that he had concerning the Bill. The power of a head of state to refuse or to withhold assent to legislation is known as the veto power. In principle, this allows a president to protect the Constitution, to uphold the balance and separation of powers, to prevent the enactment of rushed or badly drafted legislation and to thwart legislation that serves special interests rather than the common good.
  18. One of the traditional functions of the presidency was to protect against legislation that was blatantly unconstitutional or that had not been enacted in accordance with the proper constitutional procedure. The President’s role was essentially that of a constitutional guardian, whose function was to conduct an executive review of proposed legislation (in contrast to the more widely known judicial review).
  19. The President's veto power with respect to legislation was a form of protection against harmful policies and corruption. Presidents could use the power to prevent passage of legislation that they found objectionable on policy or substantive grounds, without having to make any complaint against the constitutional or procedural propriety of the Bill in question.
  20. The veto power would be used against legislation that the President was ideologically opposed to and also to prevent the enactment of so-called pork-barrel bills (where legislators voted for public funds to be spent on projects in their own areas) or special-interest legislation (where lobbyists attempted to influence legislators to enact laws that privilege a certain section of society against the common good).
  21. The term reservation as used in article 115 of the Constitution referred to a clear statement of the President's objections which gave a reasoned justification for the exercise of powers to refuse to assent to a Bill. That statement gave the President an opportunity to lay out precisely what was wrong with the Bill and specify how the Bill could be improved. In that way the veto power, albeit indirectly, was an agenda setting power through which the President was able to exercise political leadership, to define policy stances to the electorate and put political pressure in legislators.
  22. The President's power to state what was wrong with a Bill could be exercised without making recommendations or proposals to Parliament to avoid the danger of the perception of interfering with Parliament's functions. However, to the extent that Members of Parliament had the constitutional safeguard and freedom of rejecting the recommendations, it was unsafe to conclude that they were influenced by the President's proposal.
  23. The Petitioners bore the burden to demonstrate that Parliament was unduly influenced by the President's recommendation to the extent that they did not exercise their constitutional mandate in passing the Bill. With respect to undue influence, it was worth remembering that under article 115(2) of the Constitution, Parliament could amend the Bill in light of the President's reservations or pass the Bill a second time without the amendments.
  24. The text proposed by a President with respect to a Bill need not be subjected to other stages that a Bill would be subjected to upon its first introduction, namely; publication, first reading, second reading and third reading. Therefore, in enacting the Finance Bill 2017, there was no breach of procedural requirements.
  25. Equity in taxation expresses the idea that taxes should be fair, and is a concept used in all tax policy analysis. However, it is a normative, value-based concept and its interpretation differs across individuals, countries, cultures and time. Since the concept would depend on one's particular perspective as well as the specific circumstances being considered, the concept was at times difficult to apply in practice.
  26. Tax equity is commonly discussed according to four definitions of fairness. These definitions are also normative, and sometimes conflict, so they too are difficult to apply in practice. Horizontal equity posits that taxpayers who are equally economically situated should be treated equally for tax purposes. Vertical equity posits that taxpayers who are not identical from an economic standpoint, but are differently situated, should be treated differently for tax purposes.
  27. A basic theme of tax policy holds that taxes must be levied for a public purpose. The public is taxed to raise money for public purposes and not to support the private needs of individuals. There was no contest on the authority to levy tax and neither was there a question as to whether the tax in the impugned legislation was being levied for a public purpose.
  28. It was admitted that the tax in question was a deterrent tax. It was a sin tax which was aimed at discouraging certain activities. It was explained that the tax complained of was part of government policy to discourage the youth from engaging in the betting, lotteries and gaming industry. That was a legitimate purpose which met the limitation test under article 24 of the Constitution. The reasonableness of the policy was not in question.
  29. It was not shown that the tax complained of was punitive. The legislature could not use tax laws as a tool to inflict punishment or assess penalties. A punitive tax would amount to an abuse of the legislature's taxing authority.
  30. It was alleged by the Petitioners that the tax was discriminatory but it was not shown that persons or entities undertaking similar activities were taxed at different rates. Differential taxation schemes were not unconstitutional.
  31. A legitimate expectation would not be an expectation against the clear provisions of a statute. A decision maker would not be expected to act against the clear provisions of a statute as that would be illegal and a violation of the principle of the rule of law. As legislation that was lawfully enacted, the impugned legislation would override any expectation.
  32. The Right to property as protected under article 40 of the Constitution was not absolute. In assessing whether a limitation to the right was justified it was necessary to determine whether the limitation was proportionate.
  33. It was in public interest for taxes to be paid. The impugned legislation was aimed at serving legitimate public interest and it did not infringe on the Petitioner's right to property.
  34. It is settled law that a person who approaches the Court or a Tribunal for the grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose at the earliest opportunity possible all the material/important facts/documents which have a bearing on the adjudication of the issues raised in the case. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the Court not only has the right but a duty to deny relief to such person.
  35. The 2nd Petitioner was under a duty to bring to the attention of the Court the existence of the first petition. That was even more crucial considering that the Petitioners engaged in similar businesses which were regulated by the same law, and that the two petitions challenged the same legal provisions and the core complaint was the same. Additionally, the determination of either case if successful would be beneficial to either of the Petitioners.
  36. Due to the relationship between the two companies, the two Petitioners, the similarity of their businesses and the similarity of the cases before the Court, the non-disclosure on the part of the 2nd Petitioner was not innocent. The companies were separate legal entities but they had the same directors.
  37. It would have been enough for the Petitioners to state that there was a pending Petition brought by a different company, a complete legal entity, challenging the same provisions. Also, it would not have been prejudicial to disclose the director's interest in the first petition. Disclosure of that information would have cleared the perception that the second petition was filed to achieve what the first petition did not get because the effect was that the orders sought, if obtained, would benefit both Petitioners.
  38. It’s settled law that a litigant has no right to purse pari passu two processes which will have the same effect in two courts at the same time with a view of obtaining victory in one of the process or in both.  Thus, the multiplicity of actions on the same subject matter between the same parties even where there was a right to bring the action would be regarded as an abuse. The abuse lay in the multiplicity and manner of the exercise of the right rather than exercise of right per se.

Petition dismissed.

LIMITATION OF ACTIONS Order 50 Rule 4 of the Civil Procedure Rules on Exclusion of Christmas Recess from the Computation of Time, Does Not Apply to Limitation Periods Provided for Under the Limitation of Actions Act.

Maersk Kenya Limited v Murabu Chaka Tsuma
Civil Appeal No 209 of 2015
Court of Appeal at Nairobi
Asike-Makhandia, W Ouko & A K Murgor, JJ A
November 10, 2017
Reported by Beryl A Ikamari

Download the Decision

Limitation of Actions-actions founded on contracts-computation of limitation periods for actions founded on contracts-whether the applicable six years limitation period, under the Limitation of Actions Act, could be extended by exclusion of the Christmas recess period provided for in order 50 rule 4 of the Civil Procedure Rules-Limitation of Actions Act (Cap 22), section 4(1)(a); Civil Procedure Rules 2010, order 50 rule 4.
Statutes-interpretation of statutory provisions-the running of time for purposes of limitation of actions-actions founded on contracts-whether order 50 rule 4, of the Civil Procedure Rules, could exclude the Christmas recess period from the computation of the six years limitation period applicable to contracts, under the Limitation of Actions Act-Limitation of Actions Act (Cap 22), section 4(1)(a); Civil Procedure Rules 2010, order 50 rule 4.
Statutes-interpretation of statutory provisions-circumstances under which a party would be precluded from pleading limitation of actions-interpretation of section 39 of the Limitation of Actions Act-existence of a contract not to plead limitation and existence of an estoppel preventing a party from pleading limitation-Limitation of Actions Act (Cap 22,) section 39.

Brief facts:
The Appellant employed the Respondent as a Security and Safety Coordinator. The contract stated that the Respondent could be summarily dismissed without the issuance of notice if his conduct justified such dismissal. On September 20, 2006, the Respondent was charged with the offence of stealing contrary to section 275 of the Penal Code in Criminal Case No 1723 of 2006. After being suspended from work on September 11, 2005, he was summarily dismissed from employment on November 20, 2006. Subsequently he was cleared of the criminal charges. He instituted the claim on March 21, 2013 seeking reliefs against wrongful dismissal from work by the Appellant.
Before the hearing of the suit began, a preliminary objection was raised by the Appellant. The preliminary objection was based on an assertion that the suit was time barred as it was instituted outside the 3 years’ time limit provided for under section 90 of the Employment Act. In his grounds of opposition, the Respondent argued that the Employment Act 2007 was inapplicable to his employment contract as it was dated September 20, 2005. In response, the Appellant filed another preliminary objection stating that the Respondent's claim was outside the six year limitation period set out in section 4 (1) (a) of the Limitation of Actions Act and it ought to be struck out.
In making its ruling the Employment and Labour Relations Court relied on order 50 rule 4 of the Civil Procedure Rules and excluded the period between the 21st day of December in any year and the 13th day of January in the following year (both days included) in each year commencing November 20, 2006 to November 19, 2012 totalling 210 days. The Employment and Labour Relations Court excluded that period and concluded that the Respondent would have been time barred if he had filed his claim after June 2013. The preliminary objection was dismissed. The Appellant lodged an appeal against the ruling.

Issues:

  1. Whether order 50 rule 4 of the Civil Procedure Rules, which provided for the exclusion of the Christmas recess from the computation of time, was applicable to the provisions of section 4(1)(a) of the Limitation of Actions Act which provided for a six year limitation period for actions founded on contract.
  2. When would section 39 of the Limitation of Actions Act, with respect to an estoppel not to plead limitation, be applicable to a suit? Read More...

Held:

  1. The cause of action arose on November 20, 2006, when the Respondent was dismissed from work. That was before the enactment of the Employment Act, 2007. The applicable law in computing the applicable limitation period was section 4(1)(a) of the Limitation of Actions Act which provided that actions founded on contract could not be brought after the expiry of six years from the date which the cause of action arose.
  2. Six years computed from a cause of action arising on November 20, 2006 would mean that the suit ought to have been filed latest before November 19, 2012. Instead, the suit was filed on March 21, 2013. However, the Employment and Labour Relations Court applied order 50 rule 4 of the Civil Procedure Rules and excluded the Christmas recess period for each year commencing in the year 2006 until the year 2012 and the effect was that the limitation period was extended by 210 days.
  3. Order 50 rule 4 of the Civil Procedure Rules was applicable to computation of time under the Civil Procedure Rules or in accordance with an order of the Court. The rule did not indicate that it was intended to be applied to fix time limits set by the Limitation of Actions Act which was different from the Civil Procedure Act and the Civil Procedure Rules.
  4. Part III of the Limitation of Actions Act which was titled, “extension of the period of limitation,” set out the manner and the circumstances under which periods of limitation could be extended. That part did not make reference to the Civil Procedure Rules or order 50 rule 4. Without such an enabling power, an order or rule was incapable of augmenting the absolute period of limitation stipulated under an Act of Parliament.
  5. The conclusion reached at by the Employment and Labour Relations Court that the period between November 20, 2006 and November 19, 2012, could be extended by 210 days and therefore an extension of about 7 months could be made to the limitation period provided for in section 4(1)(a) of the Limitation of Actions Act, did not have any support in law.
  6. Section 39 of the Limitation of Actions Act provided that a period of limitation would not run if there was a contract not to plead limitation or where the person attempting to plead limitation was estopped from doing so. The documents tendered did not disclose the existence of a contract wherein the Appellant could not plead limitation and the Respondent did demonstrate that the Appellant was estopped from pleading limitation.

Appeal allowed. (Ruling dismissing the preliminary objection dated July 9, 2014, set aside. Industrial Cause No 374 of 2013 struck out with costs to the Appellant.)

CONSTITUTIONAL LAW An Applicant Must Satisfy the Conditions under the Law to not only be Registered as a Citizen of Kenya but to be Issued with a National Identity Card

Republic vs Principal Registrar of Persons and 2 others
High Court at Nairobi
Judicial Review Miscellaneous Application 611 Of 2017
G V Odunga, J
December 20, 2017
Reported by Ian Kiptoo

Download the Decision

Constitutional Law-citizenship-acquisition of citizenship-citizenship by birth-qualifications for acquiring citizenship by birth-whether the Applicant was entitled to Kenyan citizenship by being born in Kenya to parents who at the time of her birth were not Kenyan citizens-Constitution of Kenya, 2010, article 14(1) and 15; Kenya Citizenship and Migration Act No.12 of 2011, section 13(3)
Constitutional Law-citizenship-entitlements of citizenship-where an applicant claiming to be Kenyan by birth applied for an Identity Card-whether the Applicant was entitled to be issued with a Kenyan ID card from the Respondent where her citizenship was in question-whether the issuance of a waiting card by the Respondent was conclusive proof that an applicant would be issued with a Kenyan identity card-Constitution of Kenya, 2010, article 12

Brief Facts:
The Applicant sought substantially an order of mandamus to compel the Respondent to issue her with a valid Kenyan National Identification Card (ID card). She also sought a declaration that she was a Kenyan Citizen and deserved an Identification card as enshrined in the Constitution and an order that the Respondent had infringed on her right.
The ex-parte Applicant presented herself as a Kenyan citizen, applied for issuance of an identity card and attached documents to show that she was a Kenyan citizen. She was, subsequently to the said Application, issued with a waiting card, which was an indication that all she had to do was to wait for the ID card to be processed, and that there was no question raised as to her citizenship at that point.
 The Respondent, the National Registration Bureau, was mandated to Identify, register and issue ID cards to Kenyan citizens who had attained the age of 18 years or over. In the process of Identifying the Applicant, through the documents that were presented to the Registrar of Persons, it was revealed that the Applicant was born on January 27, 1991 in Nairobi while her father was born on March 7, 1962 in Nairobi and was registered as a Kenyan Citizen in the year 1994. Her mother, on the other hand, was born in 1965 and was registered as a Kenyan Citizen in 1996. Therefore the Respondent contended that at the time of the Applicant’s birth in I991, her parents were not Kenyan Citizens.
It was the Respondents’ case that the law was very clear that the Applicant ought to have first made an application to the Respondent to be registered as a Kenyan Citizen thereafter she might have applied to be issued with a National Identity Card.

Issues:

  1. Whether the Applicant was entitled to Kenyan citizenship by being born in Kenya to parents who at the time of her birth were not Kenyan citizens.
  2. Whether the Applicant was entitled to be issued with a Kenyan ID card from the Respondent where her citizenship was in question.
  3. Whether the issuance of a waiting card by the Respondent was conclusive proof that an applicant would be issued with a Kenyan identity card. Read More...

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 14(1) provided;

 A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen.

Constitution of Kenya, 2010
Article 15 provided;

(1) A person who has been married to a citizen for a period of at least seven years is entitled on application to be registered as a citizen.
 (2) A person who has been lawfully resident in Kenya for a continuous period of at least seven years, and who satisfies the conditions prescribed by an Act of Parliament, may apply to be registered as a citizen.
 (3) A child who is not a citizen, but is adopted by a citizen, is entitled on application to be registered as a citizen.
 (4) Parliament shall enact legislation establishing conditions on which citizenship may be granted to individuals who are citizens of other countries.
 (5) This Article applies to a person as from the effective date, but any requirements that must be satisfied before the person is entitled to be registered as a citizen shall be regarded as having been satisfied irrespective of whether the person satisfied them before or after the effective date, or partially before, and partially after, the effective date.

The Kenya Citizenship and Migration Act No.12 of 2011
section 13(3) of provided that;
 (3) A child of a citizen by registration who was born before the parent acquired citizenship may on application by the parent or legal guardian be registered as a Kenya citizen upon—
 (a) production of documents conferring Kenyan citizenship to any of the parents;
 (b) production of the child’s birth certificate; and
 (c) proof of proof of lawful residence of the child in Kenya.

Held:

  1. Citizenship may be acquired through birth or registration. Article 14(1) of the Constitution provided for acquisition of citizenship by birth. Therefore for a person to be a citizen by birth, one or both of his or her parents had to have been a Kenyan citizen on the day of his or her birth. At the time of the Applicant’s birth in 1991, her parents were not Kenyan Citizens.
  2. The Applicant could only have acquired citizenship by registration which was provided for in article 15 of the Constitution. It followed that the only applicable provision to the Applicant was article 15(2).
  3. Whether a person had been lawfully resident in Kenya for a continuous period of at least seven years, and satisfied the conditions prescribed by an Act of Parliament was a matter that ought to have in the first place been determined by the Respondent. Therefore, even if the Court had jurisdiction to determine a violation of fundamental rights and freedoms, it had to also first have given an opportunity to other relevant bodies established by law to deal with the dispute as provided in the relevant statute.
  4. The Applicant fell within section 13(3) of the Kenya Citizenship and Migration Act No.12 of 2011. Therefore, she might have been registered as a Kenyan citizen if she fulfilled the provisions of the said section. However, the section expressly provided that the decision whether to so register her was to be made on application for the said registration. In the instant case, there was no evidence that the Applicant had made an application for registration.
  5. The Applicant seemed to be of the view that an application for registration was the same thing as an application for an ID card which only applied where a person was a citizen since under article 12 of the Constitution only Kenyan citizens were entitled to a Kenyan passport and any document of registration or identification issued by the State.
  6. The Applicant seemed to be of the view that once she applied for a national identity card and was issued with a waiting card, she was automatically entitled to be issued with an ID Card. With due respect to the Applicant, a waiting card was just evidence that an application for an ID card had been made and it did not automatically qualify as a confirmation that the ID Card would actually be issued though where there was unexplained unreasonable delay in issuing the same the Court might have intervened appropriately.
  7. In the instant case, it seemed that the Applicant’s application for issuance to her of the National Identity Card was premature. The position had to have been clear to the Applicant’s legal advisers that the sought after declaration that she was a Kenyan citizen ought to have preceded the Application for an Identity Card, assuming she had applied to be registered as a Kenyan Citizen in the first place.
  8. It was upon the Applicant to satisfy the Court that the conditions precedent to the accrual of the benefits was fulfilled by him or her. The corollary to that was that where there was a condition precedent necessary for the duty to accrue, an order of mandamus would not be granted until that condition precedent came to pass. Therefore, where there was a genuine dispute as to whether the right to apply for an order of mandamus had matured, that dispute had to first be dealt with and resolved in favour of the Applicant before an order of mandamus could go forth.
  9. The Court could not make a finding that the Applicant fulfilled the conditions stipulated in section 13(3) of the Act in order for the Respondent to be compelled to not only register her as a citizen of Kenya but to issue her with a National Identity Card. It had to be noted that the registration of a citizen did not necessarily qualify one to be entitled to a National Identity Card since the latter depended on such factors as the age of the Applicant.

Application disallowed .

CONSTITUTIONAL LAW Right to Public Hearing can be curtailed to protect the Safety of Witnesses

Republic v Kevin Ouma Odhiambo & 4 others [2018] eKLR
Miscellaneous Criminal Application 1 of 2018
High Court at Homa Bay
H A Omondi, J
February 5, 2018
Reported by Ian Kiptoo

Download the Decision

Constitutional Law-fundamental rights and freedoms-right to fair trial-limitation to right to public hearing-where prosecution sought for a witness to be heard in camera-whether the Application for the witness to be heard in camera by the Court would prejudice the accused person’s right to fair trial-Constitution of Kenya, 2010, article 50(1) and 50(8); Witness Protection Act Chapter 79, section 4 and 6

Brief Facts:
The Application before the Court involved the State seeking an order for witness protection in respect of a witness in High Court Criminal Case No.1 of 2017 which was scheduled for hearing before the High Court in Homa Bay for the witness to testify in camera and for the witness statements to be redacted before being supplied to the accused persons.
A Protection Officer attached to the Witness Protection agency [WPA] upon receiving a referral for protection from the Director of Public Prosecutions in Siaya, dated October 3, 2017, conducted a risk assessment on the protected person, and established that his life was in danger as a result of the evidence he had agreed to give in support of the prosecution case.
In addition, the Protection Officer also established that the attack and murder was politically instigated and that the environment in Homa Bay appeared to be hostile for the prosecution witness and that was what made the witness apprehensive about testifying against the accused persons.
On the other hand, the accused persons stated that they were opposed to a witness using pseudonymous, saying it was prejudicial to them and would infringe on their constitutional rights and also oppose redaction of witness statements.

Issue:

  1. Whether the Application for the witness to be heard in camera, so as to protect the witness, would prejudice the accused person’s right to fair trial. Read More..

Relevant Provisions of the Law
Witness Protection Act Cap 79
section 4 provided that;
“The witness protection agency may request the court to hold proceedings in camera/closed sessions, use pseudonymous on the witness, reduction of identity information of witness use of video link or distort the identity of a witness.”

Section 6
a) The life or safety of the person may be endangered as a result of being a witness;
 b) A memorandum of understanding has been entered into by the witness in accordance with Section 7 of the Act.  All these have been fulfilled on.

Held:

  1. The considerations the High Court had to take into account in such a prayer were set out in section 6 of the Witness Protection Act Cap79 (Act) which included inter alia that the person named in the Application as a witness had knowledge of an official.
  2. The Constitution of Kenya, 2010 provided for the right to a fair trial under article 50(1) (d) to include inter alia a public trial. However, that provision was not to be read in isolation but alongside article 50(8) which envisaged a section for protection of witnesses or vulnerable persons. That was the kind of scenarios obtained in the instant case.
  3. It was not disputed that the incident was as a consequence between two rival political groups in Homa Bay, each aligned to certain individuals within the Orange democratic Movement Party (ODM). The ODM party had a huge following within the Nyanza region, particularly in Homa Bay, Kisumu and Migori, which was why the Protection Agency had not suggested those other areas as options for court reasons.
  4. Section 24(3) of the Act provided that no question ought to have been asked in the proceedings which would have given information leading to the disclosure of the protected identity of the witness on his place of abode.
  5. The Court was satisfied that the apprehension was real and allowed the prayer. The witness evidence would be heard in camera at Kericho High Court on April 8, 2018.
  6. None of the accused persons had annexed any letter from their employer warning them about frequent absenteeism, but to be fair to them, The Court directed the OC County Commander Homa Bay to avail a vehicle to transport accused persons to Kericho for hearing on April 8, 2018.

Application allowed.
Orders
The Deputy Registrar Homa Bay was directed to transmit the information to the Deputy Registrar Kericho for purposes of administrative arrangements regarding sitting arrangements. The Deputy Registrar Kericho would liaise with officials from the Witness Protection Agency so as to get the relevant details necessary to ensure adequate protection of the witness.

SUCCESSION LAW A purchaser in an Agreement for the Sale of Land During the Lifetime of the Deceased has Locus Standi to Apply for Revocation of Grant

Priscilla Ndubi and Another vs Gerishon Gatobu Mbui
Succession Cause 720 Of 2013
High Court at Meru
F Gikonyo, J
February 12, 2018
Reported by Ian Kiptoo

Download the Decision

Succession law-grants-revocation of grants-locus standi to apply for revocation-where an applicant had agreed with the owner of the suit property to purchase it before his death-whether the Applicant, who had entered into an agreement with the deceased during his lifetime for the purchase of the suit property, had locus standi to file an application for revocation of grant issued to the Petitioners-Succession Act, section 76
Jurisdiction-jurisdiction of the Probate Court vis-à-vis the Environment and Land Court-Jurisdiction of the Probate Court in enforcing a contract for the sale of land-whether the Probate Court, as opposed to the Environment and Land Court, had jurisdiction to determine a suit where enforceability of contract for the sale of land and ownership of the suit property was an issue
Statute-Interpretation of statute-interpretation of rule 41(3) of the Probate Administration Rules vis-à-vis order 37 of the Civil Procedure Rules-whether the Applicants’ claim to ownership of the suit property ought to have been dealt with under order 37 of the Civil Procedure Rules or rule 41(3) of the Probate and Administration Rules-Civil procedure Rules under the Civil Procedure Act, 2010, order 37; Probate and Administration Rules, rule 41(3)

Brief facts:
The Applicant sought to revoke the grant issued to the Petitioners on the grounds that the grant was confirmed without his knowledge; that he bought the suit property from the deceased vide agreement dated September 12, 2006; that the 1st Petitioner had committed fraud and sought to sell the suit land; and that the 1st Petitioner had refused to distribute the estate in accordance with the wishes of the deceased.
The Petitioners opposed the Application stating that the court lacked jurisdiction to hear the matter and that the sale agreement was unenforceable for lack of consent from the relevant Land Control Board. In addition, the Petitioners contended that the grounds by the Applicant were only fit for an action under order 37 of the Civil Procedure Rules.

Issues:

  1. Whether the Applicant, who had entered into an agreement with the deceased during his lifetime for the purchase of the suit property, had locus standi to file an application for revocation of grant issued to the Petitioners.
  2. Whether the Probate Court, as opposed to the Environment and Land Court, had jurisdiction to determine a suit where enforceability of contract for the sale of land and ownership of the suit property was an issue.
  3. Whether the Applicants’ claim to ownership of the suit property ought to have been dealt with under order 37 of the Civil Procedure Rules or rule 41(3) of the Probate and Administration Rules. Read More...

Relevant Provisions of the Law
Law of Succession Act Section 76 provided:-
 76. Revocation or annulment of grant
A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—
 a. that the proceedings to obtain the grant were defective in substance;
 b. that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
 c. that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
 d. that the person to whom the grant was made has failed, after due notice and without reasonable cause either—

 i. to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or
 ii. to proceed diligently with the administration of the estate; or
 iii. to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or

 e. that the grant has become useless and inoperative through subsequent circumstances.

The Probate and Administration Rules Rule 41(3) provided;
(3)Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide the determination of the question in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71 (2) of the Act, proceed to confirm the grant.

Held:

  1. There was an agreement between the Applicant and the deceased for the sale of the suit land. Although, challenges to the said agreement and objection to the jurisdiction of the Court to try such claims had been raised, one thing was clear; that money might have been passed to the deceased which was recoverable as debt. Accordingly, at the very least, the Applicant could have been treated as a creditor, thus, an interested party for purposes of section 76 of the Law of Succession Act. Therefore, the Applicant was within his right to apply for revocation of grant as he had done.
  2. Applying the test of law in section 76 of the Law of Succession Act, the fact that there was an agreement between the deceased and the Applicant for sale of the suit land was important to those proceedings. It seemed also that consideration might have been passed between the two parties.
  3. The Court did not have jurisdiction to determine the validity or enforceability of the said agreement. The Environment and Land Court did; it was the Court which was constitutionally mandated to determine such matters.
  4. In any judicial proceeding, parties had to make full disclosures to the Court of all material facts to the case including succession cases. That general rule of law emphasized utmost good faith (uberimae fidei) from parties who took out or were subject of the Court proceedings. The said responsibility was part of justice itself. Accordingly, non-disclosure of material facts undermined justice and introduced festering waters into the pure steams of justice; such had to immediately be subjected to serious reverse osmosis to purify the streams of justice if society was to be accordingly regulated by law.
  5. The primary duty of the Probate Court was to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property had to be identified. Therefore, where issues on the ownership of the property of the estate were raised in a succession cause, they had to be resolved before such property was distributed. And that was the very reason why rule 41(3) of the Probate and Administration Rules was enacted so that claims which were prima facie valid would have been determined before confirmation.
  6. Whereas the Court agreed with the advocates for the Petitioners that the Applicant’s claim ought to have been dealt with under order 37 of the Civil Procedure Rules, previously order XXXVI, rule 1 of the Civil Procedure Rules, the decision to pack or appropriate and set aside the property or portion thereof in dispute for determination under order 37 of the Civil Procedure Rules was made by the Probate Court under rule 41(3) of the Probate and Administration Rules.
  7. By virtue of the law, the Applicant was an interested party and he had the locus standi to apply for revocation of grant. The Applicant had satisfied the Court that:
    1. The grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case; or
    2. The grant was obtained by means of an untrue allegation of a fact essential in a point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently.
  8. Where the deceased had entered into some binding transactions, or where liability had attached against him or a right had accrued upon him, the death of the deceased did not discharge him from the obligations or liability, or obliterate his right under those transactions. The personal representative came in to fulfil those obligations or liabilities, or to realize any right or benefit thereof for the estate of the deceased. That was why the law required the personal representative to bring in all the estate property, to pay out all liabilities and discharge all obligations of the deceased.
  9. (Obiter) In my experience as a judge, I have seen dishonest parties seeking to defraud bona fide claimants especially in land transactions which the deceased did not complete due to his death, in the pretext of preserving the estate-and what they mostly cite is section 45 of the Law of Succession Act even where it is inapplicable. Circumstances of this case should be distinguished from a situation where the sale of land is done after the death of the deceased and before confirmation of grant.

Application allowed
Orders

  1. The grant of letters of administration issued and confirmed to the Petitioners on September 18, 2013 and September 24, 2013 respectively was revoked.
  2. An inhibition would be registered on LR NO NYAKI/MULANTHANKARI/2244 until ownership was determined as per the order (3);
  3. The dispute on the ownership in respect of LR NO NYAKI/MULANTHANKARI/2244 could not be conveniently determined in the proceedings. The Court accordingly, subjected to the provisions of section 82 of the Act, by order appropriate and set aside LR NO NYAKI/MULANTHANKARI/2244 to abide the determination of the question in proceedings under Order 37 rule 1 of the Civil Procedure Rules. Subject to the proviso to section 71(2) of the Act and consent of the beneficiaries, the Court might have proceeded with the distribution of rest of the estate.
  4. In light of the above, there was no need for the Applicant to file protest; and
  5. Costs of the Application would be paid by the Petitioners.

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