Weekly Newsletter 018/2018

Weekly Newsletter 018/2018



Kenya Law

Weekly Newsletter


Campaigning Beyond the Prescribed Time set by the Independent Electoral and Boundaries Commission Taints the Fairness and Integrity of an Election
Bernard Kibor Kitur vs Alfred Kiptoo Keter and another
Election Petition No 1 of 2017
High Court at Eldoret
K Kimondo, J
March 1, 2018
Reported by Ian Kiptoo
Download the Decision

 


Electoral Law- election petition-burden of proof in election petitions-claim that elections were marred by irregularities-whether the Petitioner had discharged the burden of proof that the elections for Member of National Assembly of Nandi Hills Constituency was conducted in contravention of the principles laid down in the Constitution, the Election Act and the Regulations under the Act-Elections Act, section 83

Electoral Law-election petition-form and content of an election petition-pleadings-where a petitioner pleaded irregularities complained of generally-whether failure by the Petitioner to precisely plead the irregularities complained of rendered the Petition defective

Electoral Law-campaigns-conduct and timelines-claim that a party conducted campaigns beyond the prescribed time by the Independent Electoral and Boundaries Commission-whether the 1st Respondent’s actions amounted to campaigning past the prohibited gazetted time by the Independent Electoral Boundaries Commission

Electoral Law-Independent Electoral and Boundaries Commission-Returning Officer-powers and duties of Returning Officers-whether the 2nd Respondent conducted the election for Member of National Assembly of Nandi Hills Constituency in contravention of the Constitution, the Elections Act and Regulations under the Act


Brief facts:

The Petitioner sought nullification for the election results of Nandi Hills Constituency claiming that the 1st Respondent continued with his campaigns beyond the gazetted period up until August 8, 2017.  In addition, the Petitioner blamed the 2nd Respondent, the Independent Electoral and Boundary Commission (IEBC), for failing to enforce the harmonized campaign schedules; failing to conduct the election in compliance with the Act and Regulations; declaration of wrong results in Form 35B; and, condoning electoral offences by the 1st Respondent.

 

Issues:

  1. Whether the Petitioner had discharged the burden of proof that the elections for Member of National Assembly of Nandi Hills Constituency was conducted in contravention of the principles laid down in the Constitution, the Election Act and the Regulations thereunder.
  2. Whether failure by the Petitioner to precisely plead the irregularities complained of rendered the Petition defective.
  3. Whether the 1st Respondent’s actions amounted to campaigning past the prohibited gazetted time by the Independent Electoral Boundaries Commission.
  4. Whether the 2nd Respondent conducted the election for Member of National Assembly of Nandi Hills Constituency in contravention of the Constitution, the Elections Act and Regulations under the Act.

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 81(e)

  “The electoral system shall comply with the following principles-
 (e) free and fair elections, which are-

 (i) by secret ballot;
 (ii) free from violence, intimidation, improper influence or corruption;
 (iii) conducted by an independent body;
 (iv) transparent;
 (v) administered in an impartial, neutral, efficient, accurate and accountable manner”.

Elections Act
Section 83

 “No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election”.

 
Held:

  1. An election court was no longer required to determine with finality the culpability of an offending party. Section 87 of the Elections Act (the Act) provided that where the Court found that an election offence might have been committed, it would transmit an order to the Director of Public Prosecutions for investigation and prosecution.
  2. An election was a continuum that started before polling day; spilled over into management of the election by the IEBC; and, might have ended up in the Election Court. Along that journey, various institutions had been granted certain statutory powers. The IEBC, for example, superintended over the conduct of parties and candidates during the election. It was empowered to enforce certain aspects of the Electoral Code of Conduct.
  3. The Commission was bestowed with enormous powers of criminal and civil nature. For instance, under section 107 of the Elections Act a member of the Commission or an officer designated by the Commission could order for the arrest of a person who committed an election offence. Section 107 also donated power to the Commission to prosecute offences under the Act. Besides, the Commission could bar a candidate from participating in the ensuing poll.
  4. Article 1 of the Constitution of Kenya, 2010 (Constitution) stridently proclaimed the sovereignty of the people. On the other hand, articles 81 and 82 of the Constitution demanded for free, fair, transparent and credible polls. Under Kenya’s democratic form of government, an election was the ultimate expression of sovereignty of the people and the electoral system was designed to ascertain and implement the will of the people. The bedrock principle of an election dispute resolution was to ascertain the intent of the voters and to give it effect whenever possible. The Elections Act 2011, as amended from time to time and, the Regulations thereunder were the legislation contemplated by article 82 of the Constitution.
  5. The Act was amended after the conduct of the impugned election. The amendment was thus irrelevant to the instant dispute. The Court would thus apply the law as it existed on the date of the impugned election. Section 83 of the Act was coached in negative language to emphasize the caveat placed on the Election Court. There was in it a rebuttable presumption in favour of the Respondents that the election was conducted properly and in accordance with the law. Furthermore, it also implied by that provision that elections were not always perfect. Consequently, not all malpractices would lead to nullification of the result. The Court had to carefully weigh the impact of the alleged irregularities or malpractices on the outcome of the election
  6. Parties to the Petition were also bound by their pleadings. The formal responses to the Petition by the 1st and 2nd Respondents joined issues on all the allegations in the Petition. The Respondents had thus put the Petitioner to strict proof. The legal burden of proof remained firmly on the shoulders of the Petitioner; the Petitioner had to lead cogent evidence to impeach the poll. The cardinal precept of the law of evidence was that he who alleged had to prove; and to the required standard of proof. 
  7. Where a party alleged non-conformity with the electoral law, the Petitioner had to not only prove that there had been non-compliance with the law, but that such failure of compliance did affect the validity of the elections. It was on that basis that the Respondents bore the burden of proving the contrary. Thus, each paragraph of the Petition alleging breach of law, rule or regulation or which complaints of any malpractice had to be proved by evidence. An election petition had to succeed or fail on its pleadings and evidence. All that was meant by that onus propandi was that first, the Petitioner had to proffer adequate or sufficient evidence. Secondly, the evidence had to be of a persuasive quality. It was then that the Respondents were called to rebut it. In the end, the Petitioner had to show that the preponderance of evidence inured in his favour. If he failed to rise to that standard, the Petition had to be dismissed.
  8. Evidential burden kept shifting in the course of the trial, the standard of proof in election petitions was higher than a balance of probabilities in ordinary civil cases but not beyond reasonable doubt as required in criminal cases. In the instant case, from the evidence, the election generally proceeded efficiently on polling day. However, there were serious anomalies in the records of two polling stations. The results in Form 35B for Ng’ame Nursey School were meant to be for another station, Lelwak Primary School. Consequently, the number of valid votes, 474 votes, exceeded the number of 469 registered voters. The Returning Officer conceded that the mix-up gave the Petitioner an extra 121 votes while 1st Respondent lost 36.
  9.  The results for Nduruto Primary School (polling Station 054) were omitted in the print out of Form 35B. The error affected 197 votes for the 1st Respondent; 174 votes for the Petitioner; and, 1 vote for Isaac Letting. There were 3 rejected votes. Valid votes cast were 372 out of 445 registered voters.
  10. The matter was not pleaded with precision in the Petition. But to be fair to the Petitioner, The Court carefully studied the Petition, the Petitioner cited IEBC’s failure to conduct a proper election; and, declaration of wrong results in Form 35B in the final tally of the aggregate vote. The irregularity in question was generally pleaded in the Petition. Considering the entire Petition and supporting affidavit, the Respondents could not be heard to say that they did not know the case they were confronting in the Petition.
  11. The main beneficiary of the irregularity at Ng’ame Nursery School was the Petitioner. In the end, the anomalies in Forms 35A and 35B in the three polling stations of Ng’ame Nursery School, Lelwak Primary School and Nduruto Primary School did not materially affect the final results. There remained a wide gulf of votes between the Petitioner and the 1st Respondent.
  12. There was no cogent or credible evidence at the trial to back up the allegations of voter bribery. It was also not lost on the Court that they were based largely on hearsay. Furthermore, the allegations were of a criminal nature. The standard of proof required was beyond reasonable doubt. Thus, there was scantiness of evidence to show that the 1st Respondent bribed or treated voters as pleaded in the Petition.
  13. The Petitioner discharged the initial burden in three ways:
    1. He produced Legal Notice Number 2693 published by the IEBC in the Kenya Gazette of March 17, 2017. Under the Legal Notice, the official campaign ran from June 1, 2017 to August 5, 2017. The time was stipulated to be between 7:00 a.m. and 6:00 p.m. daily.
    2. The allegations were pleaded with . The Petition was instructive that although the original Petitioner was allowed to from the Petition, the Petition and its supporting affidavit remained.
    3. The present Petitioner in his placed the 1st Respondent at the scenes of the alleged campaigns in Ainapng’etuny Centre, Labuiywo Trading Centre and Stima School in Ol’lessos.
    There was no credible evidence that the 1st  Respondent continued with campaigns on August 7, 2017 at Simatwet Trading Centre in Tartar Sub-Location, Chepkunyuk Ward.
  14. A political campaign was simply an organized and active programme geared towards winning elections. The absence of a public address system or materials did not prevent the 1st Respondent from addressing the three gatherings at Ainapng’etuny Centre, Labuiywo Trading Centre and Stima School in Ol’lessos. He did not need to expressly ask for votes. By stopping in those centres less than 48 hours to the poll; and, addressing the public gathered there, he created a spectacle; and kept his brand alive. The 1st Respondent was the sitting member of the National Assembly. The Court reached the inescapable conclusion that that was not the 1st Respondent as a private citizen on a casual visit: that was the 1st Respondent as a politician doing a last minute sweep of the Constituency. It was a brazen one-day tour through key trading centres and a school. It started at 9:00 a.m. through 5:00 p.m. It was a poorly disguised campaign. It was a clever strategy contrived to take full advantage of his competitors who had retired from the campaign trail.
  15. The Returning Officer confirmed that all the candidates had executed the Electoral Code of Conduct under the Second Schedule to the Elections Act. The code was binding upon candidates throughout the election period. The 1st Respondent conceded that he had signed the Electoral Code of Conduct. The IEBC in the Legal Notice directed that campaigns would cease on August 5, 2017 at 6:00 p.m. That was at least 48 hours before the poll. The use of the word ‘shall’ made it mandatory. Under the Electoral Code of Conduct paragraph 6 (k) (iii), the candidates were obligated to implement the orders and directions of the Commission. An example of a direction was the one in Legal Notice number 2693 published by the IEBC in the Kenya Gazette of March 17, 2017. Section 20(2) of the Election Offences Act provided that any person who contravened the Electoral Code of Conduct committed an offence.
  16. An electoral malpractice of a criminal nature might have occurred. The Election Court was not supposed to make any conclusive findings on the culpability of the 1st Respondent. The Court directed that the judgment and order be transmitted to the Director of Public Prosecutions for further investigations under section 87 (2) and (3) of the Elections Act. The 1st Respondent’s conduct tainted the fairness and integrity of the poll. By campaigning beyond the stipulated time, the contest was no longer fair; the ground became uneven; and, the other two candidates were left holding the short end of the stick.
  17. The IEBC was not a virtuous virgin either. The Constituency Returning Officer was notified of the transgressions on the morning of August 7, 2017. It was self-serving for the Returning Officer to downplay communication on the WhatsApp Group that he had created for the candidates. True, the Petitioner should have filed a formal complaint. But that was a day to the contest; and, the Returning Officer conceded it was hectic. Instead, the Returning Officer led the Petitioner on a goose chase to the police. In a synopsis, the Returning Officer was playing impotent despite his extensive powers under the Act. Thus, the 2nd Respondent did not conduct the election for Nandi Hills Constituency in accordance with the Constitution; the Elections Act; and, Regulations.
  18. The Petitioner had partially proved his case to the required standard of proof and had sufficiently challenged the integrity of the poll. The fitting remedy was to nullify the poll; and, to grant the people of Nandi Hills Constituency a fresh opportunity to elect their representative to the National Assembly.
Petition allowed
Order
  1. A was issued that the election held on August 8, 2017 for the for Nandi Hills Constituency was free and fair.
  2. The 1st Respondent was validly elected as the for Nandi Hills Constituency.
  3. The IEBC would hold a for the for Nandi Hills Constituency in accordance with the Constitution, the Elections Act and the Regulations thereunder.
  4. The was awarded costs at Kshs 1,000,000. The Petitioner was entitled to any costs. Those costs would be met in equal shares by the
Kenya Law
Case Updates Issue 018/2018
Case Summaries

STATUTES Students of Constituent Colleges, that Attain University Status, are Entitled to Degrees from The Mentoring University

Kelvin Mbwaya and 55 others vs The Attorney General and 5 others
Petition 354 Of 2015
High Court at Nairobi
E C Mwita, J
September 29, 2017
Reported by Ian Kiptoo

Download the Decision

Statutes-interpretation of statutory provisions-student-scope of the definition of a student under the University of Nairobi Act-whether the Petitioners were students of the 2nd Respondent, on attaining university status, or the 3rd Respondent-University of Nairobi Act, section 2(1)
Statutes-interpretation of statute-interpretation of the University of Nairobi Act-where a constituent college attained full university status-where there was no transition clause for students pursuing degree courses-whether the Petitioners were entitled to conferment of their degrees by the 2nd Respondent or 3rd Respondent
Constitutional law-legitimate expectation-where the law provided for the conferment of degrees by a university and not a constituent college-whether the conferment of a degree by the 2nd Respondent, as opposed to conferment by the 3rd Respondent, violated the Petitioners’ legitimate expectation

Brief facts:
The Petitioners received admission letters from the Kenya Polytechnic College, which was a constituent college of the 3rd Respondent (University of Nairobi), in 2009 to pursue a course leading to a degree in Bachelor of Science in Electrical and Electronics engineering. On January 15, 2013 the University College received its own Charter and attained full university status assuming the name The Technical University of Kenya and as a result the Petitioners who studied at the 2nd Respondents’ (Technical University Of Kenya) for the remaining years were awarded the 2nd Respondent’s degrees on December 18, 2013 on completion.
The Petitioners were aggrieved for being absorbed by the 2nd Respondent and awarded the 2nd Respondent’s degrees yet the 2nd Respondent was not accredited to offer engineering courses and were unable to be registered as graduate engineers and could not earn a living.
The 2nd Respondent contended that the 3rd Respondent’s role was to oversee, mentor and act as caretaker to ensure quality of education in the University College and assist in the administrative and management issues whenever they arose. In addition, it was stated that universities were not answerable to other professional bodies and therefore the 5th Respondent (Engineers Board of Kenya) ought not to have acted retrospectively as it did by declining to register the Petitioners.
On the other hand, the 3rd Respondents contended that the Petitioners not being students of the 3rd Respondent could not be conferred with degrees of the 3rd Respondent, that the mandate of conferring degrees to the Petitioners was that of the 2nd Respondent which had been granted a charter to a full University with its own duties and obligations and that the Petitioners were properly absorbed by the 2nd Respondent.

Issue:

  1. Whether the Petitioners were students of the 2nd Respondent (Technical University of Kenya), on attaining university status, or the 3rd Respondent (University of Nairobi).
  2. Whether the Petitioners were entitled to conferment of their degrees by the 2nd Respondent or 3rd Respondent.
  3. Whether the conferment of a degree by the 2nd Respondent, as opposed to conferment by the 3rd Respondent, violated the Petitioners’ legitimate expectation. Read More...

Relevant Provisions of the Law
Section 32(4) of the Charter provided;
“The students of the Kenya polytechnic University College pursuing diploma and certificate programmes as at the commencement of the charter shall compete their course and shall be awarded diplomas and certificates of the university.
Section 5 of Legal Notice No 1159 of 2007 provided;
(1) The degrees to be awarded by the University College shall be the degrees conferred by the University.
(2) Notwithstanding subparagraph (1), the University College shall have powers to grant diplomas, certificates or other academic qualifications which may, for the time being, be authorized by the statues of the University College.”

Held:

  1. It was important to examine the constituting instruments namely; the University of Nairobi Act, 210 B, Legal Notice No. 159 of 2007, the Charter and the transition clause to discern the legislative intent. That required a proper interpretation of those statutes, looking at not only the text, but also the context of the statues. In addition, it was also imperative that when interpreting a statute, the Court took a holistic approach to that interpretation.
  2. The 3rd Respondent was established under section 3(1) of its statute, University of Nairobi Act, 210 B. Section 2(1) of the Act had several definitions which were relevant to the Petition. For instance, the word university was defined to mean the University of Nairobi. Constituent College was defined to mean any institution declared to be or established as a constituent college of the University under section 5. Furthermore, the word student was defined as a person registered by the University for the purposes of obtaining a qualification of the University or any other person who was determined by the Senate to be a student. Section 5 provided that the President might have, on the advice of the Council, by order published in the Gazette establish or declare an education institution of higher learning or any training establishment to be a constituent college of the University.
  3. On the other hand, section 3(1) of Legal Notice No 1159 of 2007 established the University College as a constituent college of the 3rd Respondent, and a body corporate pursuant to section 3(2) of the Order. Section 4 of the Order provided for functions of the University College one of which was to examine and make proposals for new degree courses and subjects of study.
  4. Section 5 on conferment of degrees and other academic certificates was clear that degrees to be awarded by the University College were degrees conferred by the 3rd Respondent. The University College’s power was to award diplomas and certificates. In that regard, section 2 of the Order defined the word university to mean the 3rd Respondent. That meant that graduates from the University College would be awarded degrees of the 3rd Respondent. A reading of section 5(2) of the Order was clear that the University College would only award diplomas and certificates or other academic qualifications but not degrees.
  5. The University College received its charter on January 5, 2013, assuming the 2nd Respondent name. Both the University College Order 2007 and the Charter did not define the word student. However, section 2 of the University of Nairobi Act defined student as a person registered by the University for the purposes of obtaining a qualification of the University or any other person who was determined by the Senate to be a student. That would imply that the 3rd Respondent could only award its academic qualifications to its students.
  6. When the Petitioners commenced their studies in the University College, they were by law entitled, upon completion of studies to degrees of the 3rd Respondent. The Legal Order did not make it a condition that that would be the case only if the Petitioners completed their studies while the University College was still a constituent college.
  7. The transition clause in section 32(4) in the Charter was clear that only students of the University College pursuing diploma and certificate programmes at the commencement of the charter on January 15, 2013 would complete their courses and be awarded diplomas and certificates of the 2nd Respondent. There was no similar provision regarding students who were pursuing degree courses in the University College. On the other hand, the Legal Notice establishing the University College provided that its students pursuing degree courses would be awarded degrees of the 3rd Respondent.
  8. Although the Petitioners received admission letters from the University College which would ordinarily make them students of the College, Legal Notice No 159 of 2007 was unequivocal that they would be awarded degrees of the 3rd Respondent. That could also be implied from the transitional clause in the Charter which left out students who were pursuing degrees at the University College among those who would be awarded academic certificates of the 2nd Respondent at commencement of the Charter on January 15, 2013.
  9. Legal Notice 159 of 2007 which was a subsidiary legislation to the 3rd Respondent Act, defined university as the 3rd Respondent. The Act itself defined student as one registered for purposes of obtaining academic qualification of the 3rd Respondent, which was the case with the Petitioners.
  10. From a factual and practical point of view, and giving the three statutes a holistic examination both textually and contextually, the University College had no legal power to award its own degrees. The Legal Notice was clear on that, the same fact could also be implied from the Charter. It was the responsibility of the 3rd Respondent to confer degrees to the Petitioners and the fact that the Charter left out the Petitioners among students who would be awarded the 2nd Respondent’s academic certificates, spoke it all.
  11. The only logical conclusion one could draw from the examination of the statutes was that the Petitioners were students of the 3rd Respondent, that fact was acknowledged by paragraph 5 of the legal Order. The clear intention discernible from the statutes was that the Petitioners were students of the 3rd Respondent for purposes of award of degrees.
  12. The fact that the 2nd Respondent assumed rights, duties, obligation, assets and liabilities of the University College did not mean it assumed the Petitioners because as human beings, they were not assets or liabilities capable of being taken over. If the intention was to have the Petitioners remain as students of the 2nd Respondent, the Charter would have provided so.
  13. To the extent that the legal order gave the Petitioners the right to be awarded degrees of the 3rd Respondent, and the transition clause in the charter left them out of those who were to get academic certificates of the 2nd Respondent, they were deemed to be students of the 3rd Respondent and were therefore entitled to her degrees.
  14. The Universities standards and guidelines, 2014, provided at paragraph 7(a) that students who completed their academic studies under the Constituent College graduated and got degrees of the Mentoring University. Paragraph 7(b) thereof provided that where students were admitted to a constituent college, but had to graduate after the Constituent College attained a charter, the students would elect whether to graduate as students of the new University or the Mentoring University. The guidelines however well intended, did not have the force of law and therefore could not override legal instruments such as a Legal Notice or charter. In any case, the guidelines were issued in 2014 while the University College was awarded the Charter in 2013 and therefore were inapplicable in the instant case.
  15. Legitimate expectation was founded on the principle of fairness based on clear, express and an unambiguous promise made by a public authority or on its behalf, which promise had been acted upon by the person to whom it was made with the reasonable expectation that the authority or body making the promise would act accordingly. The University College Order 2007 was express and unambiguous that the Petitioners would be awarded degrees of the 3rd Respondent. When the University College attained the charter, the Charter left the Petitioners out among students who would be awarded academic certificates of the 2nd Respondent. The fact that the Petitioners would get degrees of the 3rd Respondent was not only a representation and practice but was also anchored in law. Therefore, the Petitioners continued with their studies with the knowledge that that would be the case.
  16. The Court was satisfied that the Petitioners had a legitimate expectation that on completion of their studies they would be awarded degrees of the 3rd Respondent, an expectation that was violated when they were awarded degrees of the 2nd Respondent.
  17. Although the Court appreciated the Petitioners’ concerns in seeking an order that the 5th Respondent register them as graduate engineers, the Court was of the view that the order was not appropriate in the circumstances. The Petitioners had to first get their degree certificates and then make applications to the 5th Respondent for registration. Ordering the 5th Respondent to register would be premature.

Petition partly allowed;
Orders

  1. A declaration was issued that the Petitioners and the other 55 students were valid students of the University of Nairobi having been enrolled at Kenya Polytechnic University College which was a constituent college of University of Nairobi.
  2. An order was issued that nullified degree certificates issued by the 2nd Respondent to the Petitioners and the other 55 on December 18, 2013.
  3. An order was issued compelling and directing the 2nd Respondent to forward with immediate effect the names of the Petitioners and the other 55 to the 3rd Respondent for inclusion in the 3rd Respondent’s list of graduands for the next graduation to be held by the 3rd Respondent.
  4. The 2nd and 3rd Respondents would meet costs of the Petition.
CRIMINAL PROCEDURE A Person Cannot Transfer a Criminal Case without Consent of the Prosecutor

Stephen Gikonyo Kirugumi vs William Onwonga and Another
Miscellaneous Criminal Application No 59 of 2017
High Court at Nanyuki
K Mary, J
November 8, 2017
Reported by Ian Kiptoo

Download the Decision

Criminal Procedure–Director of Public Prosecution (DPP)-powers of DPP to transfer a case-whether the High Court had the power to transfer a criminal case on the direct request of a Complainant–whether a complainant had the locus standi to seek the transfer of a criminal case from one court to another without the inclusion of the Director of Public Prosecution -Constitution of Kenya, 2010, article 157(6)
Constitutional law-fundamental rights and freedoms-right to fair hearing-where an accused advocate sought to transfer his criminal case so as to avoid being judged as guilty by his clients and potential clients-whether the failure to transfer the Respondents’ criminal case would have occasioned a violation of his right to fair trial
Civil Practice and Procedure-res Judicata-application of the doctrine of res judicata-whether the doctrine of res judicata applied to criminal cases

Brief Facts:
The Applicant, the purchaser of the suit property, and the seller were both represented in the transaction by an advocate, the Respondent. That transaction was not completed because it transpired at some point before registration of the transfer that the title document was a forgery. As a consequence both the Seller and the Respondent were charged with criminal offences relating to the alleged forged title document before the Chief Magistrate’s Court in Nanyuki. The seller was arraigned before the Chief Magistrate’s Court Nanyuki under a criminal file number 1179 of 2016 while the Respondent was charged under criminal file number 1358 of 2016.
The Respondent brought before the Court a prayer for the transfer of his criminal case from the Chief Magistrate’s Court at Nanyuki to Chief Magistrate’s Court at Isiolo. He sought that transfer on the basis that he ordinarily represented clients before the Courts at Nanyuki, Nyeri, Embu, Muranga, Kerugoya and Karatina. That if his criminal case proceeded before the Chief Magistrate’s Court Nanyuki in the presence of his clients and potential clients he would be prejudiced.
The seller contended that the Respondent failed to inform the Court that his criminal case and his criminal case were due to be consolidated, which consolidation was frustrated by the order of transfer of the Respondent’s criminal file. He further submitted that the transfer of the Respondent’s file to Isiolo Chief Magistrate’s Court would have prejudiced him and his witnesses who resided in Nyeri.

Issues:

  1. Whether a complainant had the locus standi to seek the transfer of a criminal case from one court to another without the inclusion of the Director of Public Prosecution.
  2. Whether the failure to transfer the Respondents’ criminal case would have occasioned a violation of his right to fair trial.
  3. Whether the doctrine of res judicata applied to criminal cases.Read More..

Held:

  1. The Director of Public Prosecution (DPP) was empowered by the Constitution of Kenya, 2010 (Constitution) article 157(6) to exercise the state power of criminal prosecution. That power to prosecute included the power to make application for transfer of criminal cases as sought by the Applicant. The Applicant was not a party in the criminal trial of the Respondent, but rather was a complainant whose interest were solely represented by the DPP as provided under article 157(6). The DPP’S power as provided under the Constitution was not subject to anybody’s’ consent or direction.
  2. It only made sense that although a person who reported a crime sought to withdraw his complaint, the DPP, in whose name the criminal proceedings began and could be sustained, had to be a part of the withdrawal process in a considerable manner. Indeed, the Constitution granted the DPP powers to institute, undertake, take over, continue and discontinue proceedings in article 157 of the Constitution.
  3. The power to continue proceedings had to emphatically include the powers to rightfully oppose applications for withdrawal of complaints as such applications, if unopposed, might have caused proceedings to be improperly discontinued.Thus, the Respondent was right to submit that the Applicant had no locus standi to have sought the transfer of the criminal case.
  4. The fact that the DPP intended to consolidate the criminal cases of the Respondent and Stanley could not have been an impediment to the transfer of the Respondent’s criminal file to Isiolo Chief Magistrate’s Court. That was because the Respondent raised valid reasons which demonstrated that he would suffer prejudice in the eyes of his clients and potential clients who would have presumed him to be guilty even before the trial. The right to fair trial was the upper most consideration of the Court in making the order of transfer of the Respondent criminal case file.
  5. There was nothing to stop the DPP from seeking for the transfer of the criminal file of Stanley which was presently pending before the Nanyuki Chief Magistrates Court to Isiolo Chief Magistrate’s Court so as to ensure that it was available for consolidation with the one of the Respondent’s criminal case. If that was done it would ensure that the interest of justice in respect of the Respondent would be protected.
  6. The issue raised that the Applicant and his witnesses would have been prejudiced in that they would have to travel to Isiolo would have been covered by the fact that the Applicant and his witnesses would have been paid travelling expenses to Isiolo by the Trial Court.
  7. The doctrine of res judicata raised by the Respondent in his replying affidavit did not apply to criminal cases. That doctrine only applied to civil action. What would apply in criminal cases and was probably similar to that doctrine was the issue of abuse of court process if a party indeed filed more than one application in the same matter.

Application dismissed; no order as to costs

CONSTITUTIONAL LAW Limitation of Time in Filing Constitutional Petitions

Wellington Nzioka Kioko v Attorney General
Civil Appeal No.268 of 2016
Court of Appeal at Nairobi
Alnashir Visram, W. Karanja & M. K. Koome, JJA
January 19, 2018
Reported by Kakai Toili
Download the Decision

Constitutional law- constitutional petitions – filing of constitutional petitions - timelines for filing constitutional petitions – inordinate delay - whether the filing of a constitutional petition after 33 years amounted to inordinate delay-Constitution of Kenya(Repealed) section 84
Jurisdiction – jurisdiction of the High Court – employment matters - whether the High Court had jurisdiction to entertain a claim for withheld salary, emoluments, terminal benefits and pension-Constitution of Kenya, article 162 (2) & 165 (5)

Brief Facts:
The Appellant was employed by the Kenya Air Force on the February 9, 1979. The Appellant was dismissed from the Air Force on August 1, 1982 following an attempt to overthrow the Government.
In October 2013 the Appellant filed a constitutional petition claiming unlawful termination of employment, infringement of his rights as a result of physical and mental torture which led to him developing physical deformity on his left lower jaw one year after he was released from custody and experiencing hallucinations. The Trial Court dismissed the Appellant’s Petition for failing to establish a violation of his constitutional rights and for being guilty of inordinate delay in lodging his petition. Aggrieved by the decision the Appellant filed the instant Appeal.

Issues:

  1. Whether the filing of a constitutional petition after 30 years amounted to inordinate delay.
  2. Whether the High Court had jurisdiction to entertain a claim for withheld salary, emoluments, terminal benefits and pension. Read More...

Relevant provisions of the law:
Constitution of Kenya, 2010
Article 162 – System of courts
(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—

(a) employment and labour relations; and
(b) the environment and the use and occupation of, and title to, land.

Article 165 – High Court
(5) The High Court shall not have jurisdiction in respect of matters—

(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).

Constitution of Kenya, (Repealed)
Section 84 - Enforcement of protective provisions.
(1) Subject to subsection (6), if a person alleges that any of the provisions of sections 70 to 83 (inclusive) has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if another person alleges a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.
(2) The High Court shall have original jurisdiction -

(a) to hear and determine an application made by a person in pursuance of subsection (1);
(b) to determine any question arising in the case of a person which is referred to it in pursuance of subsection (3), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 70 to 83 (inclusive).

(3) If in proceedings in a subordinate court a question arises as to the contravention of any of the provisions of sections 70 to 83 (inclusive), the person presiding in that court may, and shall if any party to the proceedings so requests, refer the question to the High Court unless, in his opinion, the raising of the question is merely frivolous and vexatious.
(4) Where a question is referred to the High Court in pursuance of subsection (3), the High Court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision.
(5) (5)Parliament -

(a)may confer upon the High Court such powers in addition to those conferred by this section as may appear to be necessary Enforcement of protective provisions or desirable for the purpose of enabling that Court, more effectively, to exercise the jurisdiction conferred upon it by this section; and
(b)shall make provision -

(i) for the rendering of financial assistance to any indigent citizen of Kenya where his right under this Chapter has been infringed or with a view to enabling him engage the services of an advocate to prosecute his claim; and
(ii) for ensuring that allegations of infringement of such rights are substantial and the requirement or need for financial or legal aid is real.

(6) The Chief Justice may make rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it by or under this section (including rules with respect to the time within which applications may be brought and references shall be made to the High Court).
(7) A person aggrieved by the determination of the High Court under this section may appeal to the Court of Appeal as of right

Held:

  1. Whereas there was no time limitation in respect of constitutional petitions, the delay could not be inordinate and there had to be a plausible explanation for the delay.
  2. When a person suffered a wrong at the hands of another and felt the need to redress the wrong, it was reasonable to expect that redress would be sought before the Claim got stale. That enabled a person to preserve and adduce the evidence that was necessary to support the claim. It also accorded the purported wrong doer an opportunity to address the grievance and if possible remedy it.
  3. If a wrong was committed and then the person wronged waited for time on end before notifying the other party, then a travesty of justice would occur because the Claim could be made at a time when the offending party had forgotten about the incident and was no longer in a position to defend himself.
  4. There is a rebuttable presumption that if one does not seek redress within a reasonable time, there is a possibility that one had not suffered any loss from the act complained of. That would explain the maxim that equity does not aid the indolent.
  5. Although there was no limitation period for filing proceedings to enforce fundamental rights and freedoms, the court in considering whether or not to grant relief under section 84 of the Constitution (repealed) was entitled to consider whether there had been inordinate delay in lodging the Claim. The Court was obliged to consider whether justice would be served by permitting a Respondent, whether an individual or the State in any of its manifestations, could be vexed by an otherwise stale claim. Just as a Petitioner was entitled to enforce its fundamental rights and freedoms, a respondent had to have a reasonable expectation that such claims were prosecuted within a reasonable time. The delay of 30 years was not explained
  6. There was paucity of evidence in the matter, other than the Appellant’s word, there was no record, evidence of his arrest or even torture. There was no proof that the Appellant’s swollen jaw was occasioned by the Respondent or its agents.
  7. A Claim for withheld salary, emoluments, terminal benefits and pension could only be entertained in the Employment and Labour Relations Court pursuant to articles 162(2), and 165 (5) of the Constitution of Kenya, 2010.

Appeal dismissed, no order as to costs

DEVOLUTION LAW The Power of the County Assembly Service Board to Remove any of its Members from Office

Republic v County Assembly of Kisumu & another Ex parte Ann Atieno Adul [2017] eKLR
Judicial Review Application No. 5 of 2016
Employment & Labour Relations Court at Kisumu
Maureen Onyango, J
November 2, 2017
Reported by Kakai Toili
Download the Decision

Devolution Law – county governments – County Assembly Service Board – powers of a County Assembly Service Board – removal of its members from office - whether a County Assembly Service Board had the power to remove any of its members from office – Constitution of Kenya, 2010 article 178; County Government Act, 2012 section 11 & 12; Anti-Corruption and Economic Crimes Act, 2013 section 62
Statutes – interpretation of statutes – interpretation of section 62 of the Anti-Corruption and Economic Crimes Act, 2013 – whether section 62 (1) of the Anti-Corruption and Economic Crimes Act, 2013 on suspension of persons charged with corruption or economic crime applied to a Speaker of a County Assembly- Constitution of Kenya, 2010 article 178; County Government Act, 2012 section 11; Anti-Corruption and Economic Crimes Act, 2013, section 62 (1)
Jurisdiction – jurisdiction of the Employment and Labour Court – review of decisions of administrative bodies - under what circumstances can courts interfere with decisions of administrative bodies

Brief Facts:
The ex parte Applicant was the elected Speaker of the County Assembly of Kisumu and by virtue thereof, she was the Chairperson of the Kisumu County Assembly Service Board. On December 1, 2016 the County Assembly Service Board suspended the 2nd Respondent from performing the functions of the office of the Clerk of the County Assembly on several allegations of misconduct. On the same day the Applicant received a letter written by the 2nd Respondent directing her to cease being Chairperson of the County Assembly Service Board pending the hearing and determination of Kisumu High Court Criminal Appeal No.12 of 2016. The Appeal arose from the decision in Kisumu Anti-Corruption Court in which the ex parte Applicant and all the other Accused persons were acquitted under section 210 of the Criminal Procedure Code. On December 6, 2016 the 1st Respondent passed a resolution requiring the ex parte Applicant to step aside on grounds that an appeal had been filed challenging her acquittal.
The ex parte Applicant aggrieved by the actions of the Respondents filed the Instant Application.

Issues:

  1. Whether a County Assembly Service Board had the power to remove any of its members from office.
  2. Whether section 62 (1) of the Anti-Corruption and Economic Crimes Act, 2013 on suspension of persons charged with corruption or economic crime applied to a Speaker of a County Assembly.
  3. Under what circumstances can courts interfere with decisions of administrative bodies?Read More...

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 178 – Speaker of County Assembly
(1) Each county assembly shall have a speaker elected by the county assembly from among persons who are not members of the assembly.
(2) A sitting of the county assembly shall be presided over by—

(a) the speaker of the assembly; or
(b) in the absence of the speaker, another member of the assembly elected by the assembly.

(3) Parliament shall enact legislation providing for the election and removal from office of speakers of the county assemblies.

County Government Act, 2012
Section 11 - Removal of speaker from office

(1) A speaker of a county assembly may be removed from office by the county assembly through a resolution supported by not less than seventy five percent of all the members of the county assembly.
(2) A notice of the intention to move a motion for a resolution to remove the speaker shall be given in writing to the clerk of the county assembly, signed by at least one third of all the members of the county assembly stating the grounds for removal.
(3) A motion for a resolution to remove the speaker shall be presided over by a member of the county assembly elected under section 9(4).
(4) Before the debate and voting on a motion under subsection (3), the speaker shall be accorded an opportunity to respond to the allegations on the floor of the county assembly.

Section 12 - The county assembly service board
(1) There shall be a county assembly service board for each county assembly.
(2) The county assembly service board shall be a body corporate with perpetual succession and a common seal.
(3) The Board consists of—

(a) the Speaker of the county assembly, as the chairperson;
(b) a vice-chairperson elected by the Board from the members appointed under paragraph (c);
(c) two members of the county assembly nominated by the political parties represented in the county assembly according to their proportion of members in the county assembly; and
(d) one man and one woman appointed by the county assembly from amongst persons who are experienced in public affairs, but are not members of the county assembly.

(3A) The members of the Board appointed under section 12(3)(d) shall serve on a part-time basis.
(4) The county assembly clerk shall be the secretary to the county assembly service board.
(5) A member of the county assembly service board shall vacate office—

(a) if the person is a member of the county assembly—

(i) at the end of the term of the county assembly; or
(ii) if the person ceases to be a member of the county assembly; or

(b) if the person is an appointed member, on revocation of the person’s appointment by the county assembly; or
(c) if the person is the Speaker, when the person ceases to be such Speaker.

(6) Despite subsection (5), when the term of the county assembly ends, a member of the county assembly service board under subsection (3)(d) shall continue in office until a new member has assumed office in the member’s place in the next assembly.
(7) The county assembly service board is responsible for—

(a) providing services and facilities to ensure the efficient and effective functioning of the county assembly;
(b) constituting offices in the county assembly service, and appointing and supervising office holders;
(c) preparing annual estimates of expenditure of the county assembly service and submitting them to the county assembly for approval, and exercising budgetary control over the service;
(d) undertaking, singly or jointly with other relevant organizations, programmes to promote the ideals of parliamentary democracy; and
(e) performing other functions—

(i) necessary for the well-being of the members and staff of the county assembly; or
(ii) prescribed by national legislation.

Anti-Corruption and Economic Crimes Act, 2013
Section 62 - Suspension, if charged with corruption or economic crime
(1) A public officer or state officer who is charged with corruption or economic crime shall be suspended, at half pay, with effect from the date of the charge until the conclusion of the case:
Provided that the case shall be determined within twenty-four months.
(2) A suspended public officer who is on half pay shall continue to receive the full amount of any allowances.
(3) The public officer ceases to be suspended if the proceedings against him are discontinued or if he is acquitted.
(4) This section does not derogate from any power or requirement under any law under which the public officer may be suspended without pay or dismissed.
(5) The following shall apply with respect to a charge in proceedings instituted otherwise than by or under the direction of the Attorney-General—

(a) this section does not apply to the charge unless permission is given by the court or the Attorney-General to prosecute or the proceedings are taken over by the Attorney-General; and
(b) if permission is given or the proceedings are taken over, the date of the charge shall be deemed, for the purposes of this section, to be the date when the permission is given or the proceedings are taken over.

(6) This section does not apply with respect to an office if the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated.
(7) This section does not apply with respect to a charge laid before this Act came into operation.

Held:

  1. In proceedings of judicial review the Court was not concerned with the merits of the case but with the decision making process. The remedy of judicial review was concerned with reviewing not the merits of the decision in respect of which the application for judicial review was made, but the decision making process itself. The purpose of the remedy of judicial review was to ensure that the individual was given fair treatment by the authority to which he had been subjected and that it was no part of that purpose to substitute by law the decision in the matter in question.
  2. The Court could not on a judicial review application act as a Court of Appeal from the body concerned, nor could the Court interfere in any way with the exercise of any power or discretion which had been conferred on that body, unless it had been exercised in a way which was not within that body’s jurisdiction, or the decision was unreasonable as in the Wednesbury case.
  3. The function of the Court was to see that lawful authority was not abused by unfair treatment. If the Court were to attempt itself the task entrusted to that authority by the law the Court would under the guise of preventing the abuse of power been guilty itself of usurping power.
  4. Section 62(1) of the Anti-Corruption and Economic Crimes Act, 2013 did not apply to the Applicant whose removal was provided for in article 178 of the Constitution and section 11 of the County Governments Act. Since the removal was solely based on the section 62, the removal was unprocedural.
  5. Apart from section 62(1) of the Anti-Corruption and Economic Crimes Act, 2013 there was no other provision for suspension of the Applicant from office as both article 178 of the Constitution and section 11 of the County Governments Act provided for removal from office and not temporary vacation of office as was intended by the letter suspending the Applicant.
  6. The powers of the County Assembly Service Board were set out in section 12 (7) of the County Governments Act and did not include removal of any of its members. Vacation of office by the members of the County Assembly Service Board was provided for in section 12 (5). The County Assembly Service Board had no powers to remove any of its members from office.
  7. Section 62(1) of the Anti-Corruption and Economic Crimes Act, 2013 did not provide for powers for removal of the Applicant. The County Assembly Service Board did not have any powers to remove any of its members including the Applicant from office. The Respondents acted in excess of their authority in the attempted removal of the Applicant from exercising the functions of Chairperson of the County Assembly Service Board.

Application allowed

  1. An order of Certiorari bringing into the Court and quashing the decision of the Clerk of the County Assembly of Kisumu vide letter dated December 1, 2016 directing the Applicant to cease being the Chairperson of the County Assembly Service Board of Kisumu pending the determination of Kisumu High Court Criminal Appeal Number 12 of 2016, Republic of Kenya Vs Anne Atieno Adul & 7 others issued.
  2. An order of Certiorari bringing into the Court and quashing the decision/resolution of the Respondents made on December 6, 2016 that the Applicant step aside as the Speaker of the County Assembly of Kisumu until Kisumu High Court Criminal Appeal Number 12 of 2016, Republic of Kenya Vs Anne Atieno Adul & 7 others was determined as provided by the letter of the Clerk of the County Assembly of Kisumu dated December 1, 2016 was issued.
  3. An order of prohibition stopping the Respondents from giving effect to or in any other manner further implementing the resolution passed on December 6, 2016 suspending and requiring the Applicant to step aside as the Speaker of the County Assembly of Kisumu issued.
  4. Costs to be borne by the Respondents.
CONSTITUTIONAL LAW Substitution of a Deceased Party in a Suit with the Legal Representative of the Deceased’s Estate

Muriithi Ngwenya v Gikonyo Macharia Mwangi & 2 others [2017] eKLR
E.L.C No. 221 of 2017
Environment and Land Court at Murang’a
J.G. Kemei, J
January 31, 2018
Reported by Kakai Toili

Download the Decision

Law of Succession - grants of representation – powers of grants of representation – representation of a deceased’s estate in a legal suit - whether one could represent an estate of a deceased without a grant of representation - Law of Succession Act, section 54
Civil Practice and Procedure – suits - parties to a suit- substitution of parties to a suit – where one of the parties to a suit dies - procedure to be followed - what was the procedure to be followed in substituting a deceased party in a suit with the legal representative of his estate in a suit where the cause of action survived the Deceased person - Civil Procedure Act, section 2; Civil Procedure Rules, 2010, order 24 rule 4
Jurisdiction – jurisdiction of the Environment and Land Court - jurisdiction of the Environment and Land Court to order for substitution of parties where a suit had abated - whether the Environment and Land Court had jurisdiction to order for substitution of parties where a suit had abated
Civil Practice and Procedure – suits - revival of suits – where a suit had abated – procedure to be followed - how could a suit which had abated be revived –Civil Procedure Rules, 2010, order 24 rule 7 (2)
Jurisdiction- jurisdiction of the Environment and Land Court – jurisdiction to hear and determine succession matters- whether the Environment and Land Court had jurisdiction to hear and determine matters relating to succession- Constitution of Kenya, 2010- article 162(2)(b),Environment and Land Court Act.
Civil Practice and Procedure – suits - parties to a suit- substitution of parties to a suit – application of substitution of parties to a suit – service on the intended party - whether it was mandatory to serve an application for substitution of parties on the intended party – Constitution of Kenya, 2010, article 50; Civil Procedure Rules, 2010, order 51 rule 3

Brief Facts:
The Plaintiff filed a suit against the Defendants seeking declarations that the 1st and 2nd Defendants held the suit property in trust for him; that the suit property be transferred to him and that the Defendants be restrained from entering the suit property. One month after the filing of the suit, the 1st Defendant died and the Plaintiff brought the instant Application seeking the substitution of the 1st Defendant with the Intended 1st Defendant on grounds that she was the 1st Defendant’s wife and that she was not willing to file an application for substitution.

Issues:

  1. Whether one could represent an estate of a deceased person without a grant of representation.
  2. What was the procedure to be followed in substituting a deceased party in a suit with the legal representative of his estate in a suit where the cause of action survived the Deceased party?
  3. Whether the Environment and Land Court had jurisdiction to order for substitution of parties where a suit had already abated?
  4. How could a suit which had abated be revived?
  5. Whether the Environment and Land Court had jurisdiction to hear and determine matters relating to succession.
  6. Whether it was mandatory to serve an application for substitution of parties on the intended party. Read More..

Relevant Provisions of the law:
Constitution of Kenya, 2010
Article 50 - Fair hearing
(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
(2) Every accused person has the right to a fair trial, which includes the right—

(a)to be presumed innocent until the contrary is proved;
(b)to be informed of the charge, with sufficient detail to answer it;
(c)to have adequate time and facilities to prepare a defence;
(d)to a public trial before a court established under this Constitution;
(e)to have the trial begin and conclude without unreasonable delay;
(f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;
(g)to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
(i) to remain silent, and not to testify during the proceedings;
(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
(k) to adduce and challenge evidence;
(l) to refuse to give self-incriminating evidence;
(m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;
(n)not to be convicted for an act or omission that at the time it was committed or omitted was not—

(i) an offence in Kenya; or
(ii) a crime under international law;

(o)not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;
(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

(3) If this Article requires information to be given to a person, the information shall be given in language that the person understands.
(4) Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.

(5) An accused person—

(a)charged with an offence, other than an offence that the court may try by summary procedures, is entitled during the trial to a copy of the record of the proceedings of the trial on request; and
(b)has the right to a copy of the record of the proceedings within a reasonable period after they are concluded, in return for a reasonable fee as prescribed by law.

(6) A person who is convicted of a criminal offence may petition the High Court for a new trial if—

(a)the person’s appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; and
(b)new and compelling evidence has become available.

(7) In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.
(8) This Article does not prevent the exclusion of the press or other members of the public from any proceedings if the exclusion is necessary, in a free and democratic society, to protect witnesses or vulnerable persons, morality, public order or national security.
(9) Parliament shall enact legislation providing for the protection, rights and welfare of victims of offences.

Article 162(2) (b)-Jurisdiction of the Environment and Land Court
2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—

a) employment and labor relations; and
b) the environment and the use of occupation of ,and title to land

Civil Procedure Act
Section 2- Interpretation
“legal representative” means a person who in law represents the estate of a deceased person, and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;

Civil Procedure Rules, 2010
Order 24 - Death and Bankruptcy of Parties
4. Procedure in case of death of one of several defendants or of sole defendant Order 24, rule 4.]

(1) Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of thedeceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant.

Order 51- Applications
3. Notice to parties [Order 51, rule 3.]
No motion shall be made without notice to the parties affected thereby:

Provided, however, that the court, if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order ex parte upon such terms as to costs or otherwise, and subject to such undertaking, if any, as to the court seems just, and any party affected by such order may move to set it aside

Law of Succession Act
Section 54 - Limited Grants
A court may, to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act.

Held:

  1. The law was clear on what happened when one of the Defendants died and the cause of action survived or continued. Upon an application being made, the Court had to cause the legal representative of the Deceased to be made a party or to be substituted in place of the Deceased party to proceed with the case.
  2. Section 2 of the Civil Procedure Act defined who a legal representative was. Other than the mention of the Intended 1st Defendant being a wife of over 50 years to the 1st Defendant, no evidence had been tabled to show that she was indeed the legal representative of the estate of the 1st Defendant. The rule required substitution of a Defendant with a party clothed with legal representation.
  3. One could only represent the estate of a deceased person when a grant of representation had been made in respect of the estate of such deceased person under the Law of Succession Act. The Law of Successions Act provided the procedure to be followed in the application for such a grant and the various forms a grant could take including letters of administration. Section 54 of the Act provided that a Court could limit a grant of representation which it had jurisdiction to make in any of the forms described in the fifth schedule.
  4. It was in doubt whether the Applicant had followed the procedure in seeking a legal representative of the Deceased 1st Defendant’s estate. The Applicant was at liberty to cite the intended substitute as per the provisions provided in the Succession Act for the purposes of the pending proceedings. No material has been presented to the Court that indeed the Intended 1st Defendant was a legal representative of the 1st Deceased Defendant or whether the Applicant had filed citation proceedings in that regard.
  5. The provisions of the Succession Act had a cure for situations where the 1st Defendants dependants were unwilling to file letters of grant of administration solely to defeat the Applicants claim. The Court did not have jurisdiction to determine matters relating to succession.  Its  jurisdiction was limited to determining disputes on the environment and use, occupation of and title to land under article 162(2) (b) of the Constitution as well as the Environment & Land Act,
  6. The Application had to be made within one year in default of which the suit would abate as against the Deceased Defendant. A court of law had no jurisdiction to order for substitution where the suit had already abated by operation of law or to hear and determine a suit that had already abated by operation of law.
  7. The 1st Defendant died on March 18, 2012 and no substitution had been made. The instant Application was filed May 5, 2014, a period in excess of two years from the death of the 1st Defendant. The cause of action against the 1st Defendant abated on the March 17, 2013. There was therefore no cause of action surviving against the 1st Defendant when the instant Application was filed. Substitution could not have been done unless the suit was revived.
  8. A party could apply for leave under the Civil Procedure Rules, 2010, order 24 rule 7(2) to revive a suit which had  abated and if he proved to the Court that he had been prevented by any sufficient cause from continuing  the suit, the Court had to revive the suit upon such terms as to costs or otherwise as it thought fit. There had to be a revival of suit after abatement before substitution. An order for substitution without revival would be a nullity in law and of no effect.
  9. The intended Defendant was not served with the Application and that offended the rules of natural justice and fairness as enshrined in article 50 of the Constitution. Order 51 of the Civil Procedure Rules provided the procedure to be followed in applications filed in Court and rule 3 required that every person who was affected by an application to be served with the same rule.

Application dismissed, costs to the Respondent

ADVOCATE Abagusii Customary Law Relating to Burial of Deceased Men

Jerusa Basweti Ogeisia v Jenifer Nyamoita Achoki & another [2018] Eklr
Case No. 98 of 2017
Environment and Land Court at Kisii
J.M. Mutungi, J
January 19, 2018.
Reported by Kakai Toili

Download the Decision

Customary Law – Abagusii customary law – burial rites – what were the burial rites under the Abagusii customary law
Customary Law – Abagusii customary law – burial rites –whether Abagusii burial rites were repugnant to justice and morality or inconsistent with any law
Land Law – interests in land – beneficial interest – where a son resides on land registered in his mother’s name - whether a Deceased’s son had beneficial interest in land where he resided but was registered in his mother’s name
Land Law – ownership of land – conferment of ownership rights over land -whether determining a burial site of a deceased conferred ownership rights over the parcel of land.

Brief Facts:
The Plaintiff was the mother in law of the 1st Defendant and the mother of the 2nd Defendant.  The Deceased husband of the 1st Defendant was the first born son of the Plaintiff. The Plaintiff was the registered proprietor of land parcels West Mugirango/Bogichora/323 (parcel 323) and West Mugirango/Bogichora/970 (parcel970).  At the time of his death in April 2017, the Deceased was residing with his family in land parcel 323 but had been using land parcel 970 for cultivation and was growing food crops thereon.
The Defendants intended to inter the Deceased’s remains on land parcel 323 The Plaintiff was opposed to that arrangement and as a result filed the instant suit on the grounds that she had allocated both the Deceased and the 2nd Defendant land parcel 970 and was of the view that the Deceased should be buried on that parcel of land and that she had allocated land parcel 323 to her other two children. The Plaintiff also successfully filed an application to restrain the Defendants from burying the Deceased in land parcel 323 pending hearing and determination o fthe Suit.

Issues:

  1. What were the burial rites under the Abagusii customary law?
  2. Whether Abagusii burial rites were repugnant to justice and morality or inconsistent with any law.
  3. Whether a Deceased’s son had beneficial interest in land where he resided but registered in his mother’s name.
  4. Whether determining of a burial site of a deceased conferred ownership rights over the parcel of land.Read More...

Relevant Provisions of the Law:
Judicature Act, Cap 8 Laws of Kenya
Section 3 - Mode of exercise of jurisdiction

 (2)     The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay

Held:

  1. The Plaintiff’s decision that the Deceased be buried on West Mugirango/Bogichora/970 (land parcel 970) appeared to have been belatedly made and had the hallmarks of being an afterthought brought about by the unfortunate demise of the Deceased.  While the Plaintiff could have intended to allocate land parcel 970 to the Deceased and the 2nd Defendant that intention was not manifested during the lifetime of the Deceased.
  2. The Deceased being a son of the Plaintiff had a beneficiary interest over the land held in the name of his mother.  Thus even though the Plaintiff was the registered owner of West Mugirango/Bogichora/323 (land parcel 323) and land parcel 970 her rights of ownership were subject to her children’s beneficiary interest and in that regard the Plaintiff could be said to hold the land on her own behalf and in trust for her children.  As the registered owner of the subject land, the Plaintiff had the right to determine how to allocate and distribute the land to her children. 
  3. Burial in the majority of Kenyan tribes was a communal affair undertaken in accordance with the customary rites of the various communities.  The Court was not called upon to determine land rights respecting the Plaintiff’s family members, such a time would have arisen if the suit related to succession or if any of the parties had sued claiming an interest or right of entitlement over the land to the exclusion of some other person.
  4. The applicable law in determining the issue of the burial site was the Abagusii Customary Law relating to burial of deceased persons.  Both the Plaintiff and the Deceased as well as the Defendants were Kisii and therefore the Abagusii Customary Law applicable to deceased’s persons applied.  Section 3(2) of the Judicature Act, Cap 8 Laws of Kenya enjoined the courts to be guided by African Customary Law in civil cases where the parties were subject to or were affected by the custom.
  5. An Abagusii man who died and had a home was buried within his homestead.  Where such a person, died without having established a home, an Egesamo or Omucii was constructed so that he could be buried next to it.  There was nothing repugnant to justice and morality or inconsistent with any written law regarding the Abagusii Customary burial rites.  The community had for time immemorial practiced those burial rites and they served a good purpose in enabling the community to come to terms with the death and the loss of loved ones.  It was not the Court’s intention to disturb the practice which had been well entrenched amongst the Abagusii.
  6. A homestead played a central role in burials amongst the Abagusii.  A married Abagusii man with a homestead was supposed to be buried next to his house in accordance with the custom.  Only a person who died without a house, usually unmarried persons, would have an Egesamo constructed so that he could be buried beside it.  Normally married men would be expected to have homes where they would be buried when they died.
  7. The Deceased was married and had a house on land parcel 323 in which he resided with the 1st Defendant for over 35 years.  It would be a travesty of justice to have required that he be relocated in his death from his parents’ land where he had established a home and had resided all his life. Though the Plaintiff was the registered owner of land parcel 323 as well as land parcel 970, the Deceased had a beneficial interest in land parcel 323 and a right of use over land parcel 970. 
  8. The Plaintiff had no basis to demand that the Deceased be buried on land parcel 970 while all along the Deceased had resided on land parcel 323 where he had established his home.  The Plaintiff held the two parcels of land in trust for herself and her children and was not entitled to exclude the children from the use of the portions of land they occupied and had been using.  The Deceased was entitled to be buried on land parcel 323 next to his house in accordance with Abagusii Customary Law.
  9. By determining the burial place of the Deceased, the Court had not determined any ownership rights respecting the parcels of land 323 and 970 registered in the Plaintiff’s name. That had to await appropriate proceedings in that regard in another forum.
  10.  Ownership of land and distribution of land could not be done in the guise of a burial dispute. The considerations were totally different in determining ownership of land and determining a burial site.  In the instant case the Court determined the burial site for the Deceased which necessarily did not confer any ownership rights over the subject parcel of land.

Suit dismissed

  1. Court order issued on April 25, 2017 restraining the burial of the Deceased on land parcel West Mugirango/ Bogichora/323 discharged and vacated.
  2. Burial to be carried on land parcel West Mugirango/ Bogichora/323.
  3. Each party to bear its own costs.

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