Weekly Newsletter 022/2018

Weekly Newsletter 022/2018



Kenya Law

Weekly Newsletter


Section 7 of the Matrimonial Properties Act which Provided for Division of Matrimonial Property on the Basis of the Contribution of Each of the Parties to the Marriage is Constitutional.
Federation of Women Lawyers Kenya (FIDA) v Attorney General & another
Petition No 164B of 2016
High Court at Nairobi
J M Mativo, J
May 14, 2018
Reported by Beryl A Ikamari

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Constitutional Law-interpretation of constitutional provisions-principles of constitutional interpretation-difference between interpreting an ordinary statute and interpreting the Constitution-Constitution of Kenya 2010, article 259.
Statutes-interpretation of statutory provisions-constitutionality of section 7 of the Matrimonial Properties Act-constitutionality of the legal provision that upon dissolution of a marriage, matrimonial property would be divided between the parties to the marriage on the basis of their respective contribution to the acquisition of the property-whether such a provision infringed on women's property rights and discriminated against women-Constitution of Kenya 2010, articles 40(3) & 60(1)(f); Matrimonial Properties Act, No 49 of 2013, sections 9, 7 & 6; Marriage Act, No 4 of 2014, section 3 (2).

Brief facts:
The Petitioner challenged the constitutionality of section 7 of the Matrimonial Properties Act which required women to prove contribution towards the acquisition of matrimonial property despite the expansion of the definition of contribution to include non-monetary contribution. The Petitioner said that women who had no tangible proof of contribution to matrimonial property were at a disadvantage and the bulk of the matrimonial property would go to the spouse that made monetary contribution to its acquisition and had proof of the same. They said that contrary to articles 40, 60 and 68 of the Constitution, the effect would be that women would be deprived of their fundamental rights to property. Further, the Petitioner stated that the provision created unfair discrimination against women and that contrary to article 27 of the Constitution it was women who would suffer the most after the dissolution of marriage.

Issues:
  1. What were the principles of constitutional interpretation?
  2. Whether section 7 of the Matrimonial Properties Act which provided that matrimonial property, upon dissolution of a marriage, would be divided between the parties to a marriage on the basis of their contribution to the acquisition of the property, was unconstitutional on grounds that it infringed on women's property rights and discriminated against women.

Relevant provisions of the law.
Matrimonial Properties Act, No 49 of 2013, section 7;
7. Ownership of matrimonial property
Subject to section 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.

Held:
  1. The Court was bound to adopt an interpretation of the Constitution that conformed to article 259 of the Constitution. Article 259 obliged the Court to promote the spirit, purport, values and principles of the Constitution, advance the rule of law, human rights and fundamental freedoms in the Bill of Rights and contribute to good governance.
  2. Constitutional provisions had to be construed purposively and in a contextual manner. Courts were constrained by the language used and could not impose a meaning that the text was not reasonably capable of bearing.
  3. The Matrimonial Properties Act was enacted pursuant to article 45(4) of the Constitution to provide for the rights and responsibilities of spouses in relation to matrimonial property and for connected purposes. In order to search for the purpose of legislation, it was necessary to identify the mischief that it sought to remedy. Attention would be paid to the social and historical background of the legislation. The impugned provision was to be understood within the framework of related provisions, the Constitution and underlying values.
  4. Although the text of a statute was the starting point in interpretation, the meaning it bore had to pay due regard to the context. That would be the case even where the ordinary meaning of the provision to be construed was clear and unambiguous.
  5. An interpretation that clashed with constitutional values, purposes and principles was to be avoided in favour of one that promoted constitutional values, purposes and principles and advanced the rule of law, human rights and permitted the development of the law and good governance. If a statutory provision was capable of more than one meaning, the Court would prefer the meaning that promoted the spirit and purposes of the Constitution and the values stipulated in article 259 of the Constitution.
  6. There are numerous rules of statutory interpretation and the most important rule is the rule dealing with the statute's plain language. The starting point in interpreting a statute is the language itself. In the absence of an express legislative intention to the contrary, the language must ordinarily be taken as conclusive.
  7. It was not the duty of the Court to enlarge the scope of legislation or the intention of the legislature when the language of a statutory provision was plain and unambiguous. The Court could not rewrite, recast or reframe legislation because it had no power to legislate. Where there was a deficiency in the words used by the legislature, the Court could not correct or make up the deficiency.
  8. Where the words of a statute were clear and unambiguous, the literal rule of construction would be used and no other rules of construction of statutes would be used.
  9. The well-known general rules of constitutional interpretation are the following:-
    1. The Constitution is not interpreted like an ordinary statute. The spirit and tenor of the Constitution must preside and permeate the process of judicial interpretation and judicial discretion. The Constitution must not be interpreted in a narrow, mechanistic, rigid and artificial manner but must instead be interpreted in a broad, liberal and purposive manner. However, in some situations generous and purposive interpretations do not coincide and it may be necessary for the generous to yield to the purposive.
    2. In interpreting constitutional rights, close scrutiny should be given to the language of the Constitution itself in ascertaining the underlying meaning and purpose of the provision in question.
  10. Matrimonial property would include the matrimonial home or homes, household goods and effects in the matrimonial home or homes, any other immovable and movable property jointly owned and acquired during the subsistence of the marriage. Matrimonial property would not include the interest of any person in any immovable or movable property acquired or inherited before marriage.
  11. The impugned section 7 of the Matrimonial Properties Act stated that subject to section 6(3) of the Act, ownership of matrimonial property vested in the spouses according to the contribution of either spouse towards acquisition and the property had to be divided between the parties if their marriage was dissolved. Pursuant to section 9 of the Matrimonial Properties Act, both monetary and non-monetary contribution ought to be considered in determining contribution. Under the Act contribution included domestic work, management of the matrimonial home, child care, companionship, management of the family business or property and farm work.
  12. The law recognized equal status and equal rights of parties to a marriage. Article 45 (3) of the Constitution provided for the equal rights of parties to a marriage at the time of the marriage, during the marriage and at the dissolution of the marriage. Article 60(1)(f) of the Constitution provided for the elimination of gender discrimination in law, customs and practices related to land and property in land. Additionally, section 3 (2) of the Marriage Act provided that parties to a marriage had equal rights and obligations at the time of the marriage, during the marriage and at the dissolution of the marriage, notwithstanding the system of marriage. The provision's applicability included marriages contracted under Islamic law or customary law.
  13. The Married Women’s Property Act 1882 (repealed) recognized the equal status of spouses. A married woman had the same rights as a married man to acquire, administer, hold, control, use and dispose of property whether movable or immovable, to enter into a contract and to sue and be sued in her own name. Historically, the doctrine of coverture applied and it was to the effect that once married, a woman could not enter into a contract or sue and be sued in her own name. Upon marriage, a woman’s legal existence as an individual was suspended.
  14. There is a general presumption that an Act of Parliament is constitutional and the burden of proof lies on the person who alleges otherwise. The Matrimonial Property Act 2013 did not declare that matrimonial property would be shared on a 50 : 50 basis but it set out a mechanism for distribution of matrimonial property on the basis of the parties’ respective contribution to acquisition.
  15. The impugned provision was applicable to both men and women and did not only refer to women. There were situations where women earned more and contributed more to matrimonial property than men. The provision recognized non-monetary contribution for both spouses. What non-monetary contribution amounted to depended on the circumstances of each case.
  16. The guiding principles in cases where discrimination in a legal provision is alleged are the following:-
    1. The first step is to establish whether the law differentiates between different persons. The impugned provision talked of parties to a marriage and was applicable to both men and women.
    2. The second step entails establishing whether the differentiation amounts to discrimination. The non-monetary contribution was recognized for either spouse; the man and the woman. It applied to both men and women.
    3. The third step is determining whether discrimination is unfair. The impugned provision was not discriminatory and was applicable to both men and women and no unfairness was proved.
  17. The Constitution prohibited unfair discrimination. Unfair discrimination was differential treatment that was demeaning. It happened when a law or conduct, for no good reason, treated some people as inferior or less deserving of respect than others. It also occurred when a law or conduct perpetuated or did nothing to remedy existing disadvantages and marginalization.
  18. Section 7 of the Matrimonial Properties Act did not contradict section 6 of the Act which provided for liabilities incurred during the subsistence of the marriage to be shared equally. The provision was meant to curb situations where one party to a marriage would be left to settle debts incurred during the subsistence of the marriage.
  19. Section 7 of the Matrimonial properties Act did not infringe on the right to property. The Act recognized both monetary and non-monetary contribution to acquisition of property. By providing that a party would walk out of the marriage with his or her entitlement based on contribution, the provision entrenched the principle of equality in marriage.
Petition dismissed.
Kenya Law
Case Updates Issue 022/2018
Case Summaries

CIVIL PRACTICE AND PROCEDURE Computation of Time in Probate and Administration Matters

In re Estate of Njue Kamunde (Deceased) [2017] eKLR
Misc Succession Cause No. 21 of 2016
High Court at Chuka
R .K. Limo, J
November 27, 2017.
Reported by Kakai Toili

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Civil Practice and Procedure – submissions – filing of submissions – filing of submissions in probate matters – computation of time - what was the proper way of computing time in filing of submissions in probate and administration matters where the filing was directed by a court - Probate and Administration Rules, rule 63 (1); Civil Procedure Rules, order 50 rule 2
Jurisdiction – jurisdiction of the High Court – extension of time for filing submissions in probate and administration matters - whether the High Court had jurisdiction to extend the time for filing of submissions in probate and administration matters – Constitution of Kenya, 2010, article 159 (2) (d); Civil Procedure Act, section 95; Interpretation and General Provisions Act, section 59; Probate and Administration Rules, rule 63

Brief Facts:
On May 11, 2017 when both parties were in Court, the Court gave directions on the best way to deal with the Applications dated March 4, 2017. The Court gave both parties 21 days from May 11, 2017 to file statements of accounts on how the income or any proceeds from the estate had so far been utilized. The Applicant filed her Supplementary Affidavit and Submissions on June 2, 2017. The Respondent filed her documents on June 9, 2017.June 1, was normally a public holiday in Kenya usually known as Madaraka day or the date upon which Kenya attained its Independence.
The Applicant raised a Preliminary Objection to the further Supplementary Affidavit and authorities filed by the Respondent alleging that they were filed out of time and in contravention of the Court's directions or orders.

Issues:

  1. What was the proper way of computing time in filing of submissions in probate and administration matters where the filing was directed by a court?
  2. Whether the High Court had jurisdiction to extend the time for filing of submissions in probate and administration matters.Read More...

Relevant Provisions of the Law:
Civil Procedure Rules, 2010
Order 50 Rule 2
Where any limited time less than 6 days from or after any date or event is appointed or allowed for doing any act or taking any proceedings, Sunday , Christmas Day and Good Friday and any other day appointed as a public holding shall not be reckoned in the computation of such limited time.

Held:

  1. The legal position on the question of computation of time was not expressly stated in the Law of Succession Act. However the purposive interpretation of the provisions of rule 63 (1) of the Probate and Administration Rules (P&A Rules) indicated that the provisions of rule 50 (2) and (3) applied when it came to computation of time within which either the rules or an order of court limited time to do any act or thing. Rule 63 (1) of the P&A Rules stated that inter alia the provisions of rule 50 applied so far as it was relevant.
  2. Order 50 rule 2 of the Civil Procedure Rules provided that where any limited time less than 6 days from or after any date or event was appointed or allowed for doing any act or taking any proceedings, Sunday, Christmas Day and Good Friday and any other day appointed as a public holiday would not be reckoned in the computation of such limited time. Order 50 rule 2 meant that if a party in a proceedings in court was given 6 days or less to do an act for example file a response or any other pleading, time would only run during official working days. The public holidays and weekends would be excluded in computation of time in such instances.
  3. In the instant case, the parties were given 21 days so the provisions of order 50 rule 2 of the Civil Procedure Rules did not apply because where a party was given more than 6 days like in the instant case days falling on weekends and public holidays were counted in so far as the last day did not fall on such days, if it did the day was then excluded.
  4. Under order 50 rule 3 the only days that were not be reckoned in computation of time, when the period given was more than 6 days were where the last day of the period given fell on those days that were outside official working days.
  5. It was not correct that non official working days like the weekends and public holidays were not severally reckoned with in the computation of time. The period of 21 days granted to the parties to file their respective Supplementary Affidavits and Submissions was based on direction or orders of the Court given for purposes of expediting the determination of the Cause. The period the Court gave was not statutory or based on any expressed written law to bring into operation the provisions of section 57 of the Interpretation and General Provisions Act. That Section applied where time for doing any act in court proceedings was prescribed by a statute or the subsidiary legislation (rules or regulations). Nonetheless a look at the applicable rules, order 50 of the Civil Procedure Rules, showed that the said rules were anchored on section 57 of the Interpretation and General Provisions Act.
  6. The 21 days the Court gave the parties on May 11, 2017 expired on June 1, 2017. The last day having fallen on a public holiday meant that going by the provisions of order 50 rule 3 Civil Procedure Rule, that June 1, 2017 was excluded in the computation of that 21 day period. The parties were required to have filed their papers by June 2, 2017. The record showed that only the Applicant was within time when she filed her documents to wit Supplementary Affidavit and written submissions on June 2, 2017. On the other hand, the Respondent was 7 days late when she filed her papers on June 9, 2017.
  7. Section 95 of the Civil Procedure Act granted power or discretion to enlarge time, however it did not apply to probate matters by a dint of the provisions for rule 63 of P & A Rules which set the limits under which the provisions of Civil Procedure Rules applied. Section 95 only applied to civil proceedings carried out under Civil Procedure Act and Rules. Probate and Administration matters were special proceedings governed exclusively under Law of Succession Act which had its own rules and regulations dictating the mode of procedure and requirements to be adhered to.
  8. Section 59 of Interpretation and General Provisions Act did not apply because the power to extend time under that section only related to a time prescribed by a statute or a written law. The period of 21 days given to parties in the Cause were not statutory in nature but were simply directions or orders given in the interest of time and justice to the parties.
  9. The power to enlarge time in the instant case was donated by the provisions of order 50 rule 7 of the Civil Procedure Rules which applied to Probate matters pursuant to the provisions of rule 63 of P & A Rules. Article 159 (2) (d) of the Constitution could constructively be interpreted to cover instances where a court was minded to make decisions on substance rather than on technicalities.
  10. The delay in filing the documents on time was based on the Respondent’s Counsel’s illusory on the computation of time given rather than getting the requisite documents late. The Respondent’s Counsel should have known better than her client, however it would have amounted to an injustice if a mistake by Counsel could be visited upon a litigant particularly in the circumstances of the Cause. The period of 21 days given was done with an overriding objective to facilitate just and expeditious resolution of the disputes in the Cause, however, it would have been drastic and unfair if the documents filed out of time were to be struck out. The Court was minded to determine the summons dated March 4, 2017 on substance rather than on a technicality such as not considering the Supplementary Affidavit and Authorities filed because they were filed out of time.

Preliminary Objection overruled

  1. Time under which the Respondent was required to file her further Supplementary Affidavit, written submissions and authorities extended.
  2. The Respondent’s Supplementary Affidavit, written submissions and authorities deemed duly filed and served.
  3. Respondent to pay costs of the Preliminary Objection plus attendant costs incidental to the canvassing and determination of the same.
  4. The matter be accorded priority in view of the age of the Applicant
CRIMINAL PROCEDURE Existence of the Defense of Deception by a Child to a Perpetrator in a Defilement Case Where the Perpetrator Discovered Later that the Complainant Was a Minor

Irene Atieno Ochieng v Republic
Criminal Appeal No. 8 of 2017
High Court of Kenya at Migori
A.C. Mrima J
July 27, 2017
Reported by Angela Sang and Robai Nasike Sivikhe

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Criminal Procedure-sexual offences- defilement – defenses in cases of defilement- the defense of deception by a minor- where the perpetrator of the offence of defilement was unaware that the Complainant was a minor but upon discovery later did not cease engaging in sexual relationship with the Complainant- whether the defense of deception existed to a perpetrator of the offence of defilement who discovered later that the Complainant was a minor- Sexual Offences Act, No. 3 of 2006 sections 2 , 8(1), 8(4)& (6) and 11 (1)
Evidence Law- burden of proof- proof of the offence of defilement- key ingredients to be proven with regard to the offence of defilement- whether the key ingredients of the offence of defilement, that is, proof of age, penetration and that the Appellant was the perpetrator of the offence were proven
Evidence Law- burden of proof- standard of proof where the defense of deception by a child has been raised- who bears the burden of proof where the defense of deception by a child has been raised- when does the burden of proof arise where one relies on the defense of deception by a child

Brief facts:
The Appellant was charged with the offence of defilement contrary to section 8(1)(4) of the Sexual Offences Act No. 3 of 2006(the Act). She also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Act. She denied both counts. The prosecution submitted that PW2 learnt that her son, the Complainant, then aged 17 years old and who had just dropped out of school where he was in standard six was engaged in a sexual relationship with the Appellant, a woman with several children. PW2 then reported the matter to their spiritual leader after which a meeting was convened and the Appellant was vehemently warned against engaging in sex with the complainant who was still a minor in law regardless of the circumstances. The Appellant apologized and vowed to terminate the relationship as she alleged not to have been aware that the Complainant was still a child. However, the Appellant subsequently continued with the relationship to a point where the Complainant moved out of their home and began staying with the Appellant. The trial court found the Appellant guilty and convicted her of the offence of defilement. She was sentenced to 15 years imprisonment. Being dissatisfied with the conviction and sentence, the Appellant brought the instant appeal.

Issues:

  1. Whether the defense of deception existed to a perpetrator of the offence of defilement where the perpetrator discovered later that the Complainant was a minor.
  2. Under what circumstances does the defense of deception by a child exist to a perpetrator of the offence of defilement?
  3. Whether the key ingredients of the offence of defilement, that is, proof of age, penetration and that the Appellant was the perpetrator of the offence were proven. Read More..

Relevant Provisions of law
Sexual Offences Act No. 3 of 2006
Section 2
Definition of penetration
The partial or complete insertion of the genital organs of a person into the genital organ of another person

Section 8(1)
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

Section 8(4)
A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.

Section 8 (5) & (6)
8 (5) it is a defense to a charge under this section if: -

(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that child was over the age of eighteen years

(6) The belief referred to in subsection (5)(b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.

Section 11(1)
Indecent act with child or adult
(1) Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.

Held:

  1. The Court in determining the appeal had to satisfy itself that the ingredients of the offence of defilement or alternatively those of the offence of committing an indecent act with a child were proved as so required in law; and beyond any reasonable doubt. The key ingredients of the offence of defilement included proof of the age of the complainant, proof of penetration and proof that the Appellant was the perpetrator of the offence.
  2. The age of the Complainant was settled by the certificate of birth confirming that the Complainant was born on April 4, 1999. That being so, the Complainant was then aged around 17 years and 6 months old when the alleged sexual act took place. The complainant was therefore a minor within the meaning of the law.
  3. The complainant took the court through how the relationship with the Appellant began. He was the one who approached and seduced the Appellant. They engaged in sexual acts severally thereafter. That fact was not denied by the Appellant who even stated that the complainant was a man enough who used to sexually satisfy her. That being the position penetration was proved.
  4. Whenever an accused person opted to rely on the defense of deception by a child under section 8 (5) and (6) then the evidential burden of proof shifted to that accused person to satisfy the conditions attached to that defense. It remained the duty of an accused person to demonstrate that:
    1. it was the child who deceived the accused person into believing that he/she was over the age of eighteen years at the time of the alleged commission of the offence;
    2. the accused person reasonably believed that the child was over the age of eighteen years;
    3. When all the circumstances were brought on board and duly interrogated, they pointed to the conclusion that the belief on the part of the accused person was reasonable.
  5. The accused person had to prove deception by the child in respect of the child's age. That deception could be by way of words or actions on the part of the child. The Appellant had attended a meeting convened by their Church Pastor where she was warned over the relationship with the Complainant since the Complainant was still a young child. The Appellant knew that despite how the Complainant appeared in terms of physical appearance and complexion and his ability to discharge any and/or all the roles of a man worth of a head of a house the Complainant was still but just a minor. Therefore, if there had been any prior deception by the Complainant on the Appellant that the Complainant was an adult that deception ended on the day of the meeting.
  6. The Appellant could not be reasonably expected to hide under the allegation that she had not known that the Complainant was a minor. Hence, the defense was not available to the Appellant. The Appellant was rightly found guilty of defilement and convicted. As the complainant was aged 17 years and 6 months old, the Appellant was sentenced to the minimum prescribed sentence under Section 8(4) of the Sexual Offences Act. The 15-year prison sentence remained legal.

Appeal dismissed.

CONSTITUTIONAL LAW Kitui County Finance Act No. 1 Of 2014 and Kitui County Finance Act No. 5 of 2014 Nullified Due to Failure to Facilitate Public Participation During Enactment.

Job Kimanthi Mutukuaa & 17 others v Kitui County Government & another
Misc 1 of 2016
(Formerly Constitutional Petition No 9 of 2015 (Machakos))
High Court at Kitui
L N Mutende, J
August 23, 2017
Reported by Beryl A Ikamari
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Constitutional Law-national values and principles of governance-public participation-threshold to be met in fulfilment of the requirement of public participation-adequate notice-whether a notice period of 5 days was adequate and whether notice given to illiterate and poor people via a newspaper advertisement and an FM radio broadcast in local dialect constituted adequate notice-Constitution of Kenya 2010, article 10.
Statutes-interpretation of statutory provisions-section 137 of the Public Finance Management Act & section 107 of the Evidence Act-public finance-establishment of the County Budget and Economic Forum for a given county-where there were allegations that the Kitui County Budget and Economic Forum had not been established as required by statute-effect of failure to provide evidence to prove such allegations-Public Finance Management Act, No 18 of 2012, section 137; Evidence Act (Cap 80), section 107.

Brief facts:
The Petitioners had already completed paying their rates and charges for the year 2014 at a rate passed by the 1st Respondent's predecessor, when the Kitui County Finance Act No. 1 of 2014 was passed on April 28, 2014. Towards the end of 2014, the Kitui County Finance Act No. 5 of 2014, a law that prescribed rates and charges for various properties and services for the financial year 2014-2015, was passed. The two statutes, namely, Kitui County Finance Act No. 1 of 2014 and Kitui County Finance Act No. 5 of 2014, embodied major increases in charges and rates imposed by the County Government.
The Petitioners’ case was that in passing the impugned county legislation, the minimum threshold for reasonable public participation was not met. They explained that an advertisement for public engagement was placed in the Nation Daily newspaper on September 25, 2014 for events scheduled on September 30, 2014 and October 1 & 2, 2014. They stated that due to poverty and illiteracy, the newspaper advertisement was not highly effective. The venue was said to be far away and that discouraged people's participation and the other advertisement which was made in Kamba dialect meant that other ethnic communities were excluded. The Petitioners also said that the proposed county legislation (bill) was not made available for perusal.
The Petitioners also stated that the 1st Respondent had not engaged in development projects which would explain the increase in rates and charges. They added that the introduction of new items such as timber and lorry charges for the Petitioners' businesses created a situation of double taxation. The Petitioners also alleged that the 1st Respondent failed to establish the County Budget and Economic Forum for Kitui County.

Issues:

  1. Whetherthere was adequate public participation in the enactment of the KituiCounty Finance Act No. 1 of 2014 and the Kitui County Finance Act No. 5 of2014.
  2. Whetherthe provisions of the Public Finance Management Act on the establishmentof the County Budget and Economic Forum for the County Budget ConsultationProcess were complied with by the Kitui County Government.
  3. Whetherthe petition had been overtaken by events such as the suspension of theoperation of the impugned legislation during the period of itsapplicability. Read More...

Held:

  1. Sovereigntyof the people was recognized in the Constitution of Kenya 2010. People hadthe mandate to exercise power either directly or through their electedrepresentatives. At the county level members of the County Assemblyrepresented them. Under article 10 of the Constitution, people were expectedto participate in the making of public policy decisions.
  2. The1st Respondent was duty bound to engage citizens of Kitui andenable them to participate in decision-making. A requirement of publicparticipation was the giving of reasonable notice to the public. The 1stRespondent ought to have given reasonable notice to all the residentsaffected by the proposed legislation.
  3. TheDaily Nation newspaper which was used to give notice had nation-widecirculation. However Kitui County is vast and most residents wereilliterate and poverty stricken. It was unlikely that informationadvertised in the newspaper would reach all the residents of Kitui County.
  4. The1st Respondent chose to make an advertisement via an FM radiobroadcast which was communicated in Kikamba language. Most towns in Kituiwere cosmopolitan. Kitui, Mwingi, Kyuso and Mutomo were cosmopolitantowns. There were people from other ethnic groups residing in KituiCounty. The question that would arise was on why they did not elect to useKiswahili language which was a national language.
  5. Thenotice period was not adequate. The newspaper advertisement was made onSeptember 25, 2014 and the engagement was scheduled for September 30,2014. The notice did not give citizens adequate time to prepare forsharing their views.
  6. Section137 of the Public Finance Management Act, 2012 provided for theestablishment of the County Budget and Economic Forum for the CountyBudget Consultation Process. The Petitioner alleged that the 1stRespondent had not established such a body. However, as required undersection 107 of the Evidence Act, the Petitioners had to prove theirallegations. They did not provide proof.
  7. Theimpugned legislation was not in force when the petition was filed. OnMarch 27, 2015, by consent of the Petitioners and the 1stRespondent, the rates that were to be applied were agreed on as those thatwere previously in force before the enactment of the impugned statutes.Before the hearing of the petition, the Kitui County Finance Act No. 6 of2015 was assented to on October 9, 2015. The statute provided for rates oftaxes, fees and charges. Thereafter, there was another statute for 2016.Given that the impugned legislation was to operate for a specific durationand it was suspended for the entire period of its applicability, thepetition was overtaken by events.
  8. Publicparticipation was not afforded to the Petitioners as envisaged by theConstitution of Kenya 2010. Therefore, the Kitui County Finance Act No. 1of 2014 and Kitui County Finance Act No. 5 of 2014 were null and void.

Petition partly allowed with no order as to costs. (The Kitui County Finance Act No. 1 of 2014 and Kitui County Finance Act No. 5 of 2014 were found to be unconstitutional but the petition had been overtaken by events.)

STATUTES The definition of an explosive under the Explosives Act includes substances which can only explode with the use of a stimulus

Ahamad Abolfathi Mohammed & another v Republic
Criminal Appeal No 135 of 2016
Court of Appeal at Nairobi
P Kihara Kariuki, PCA, K M'Inoti & A K Murgor, JJ A
January 26, 2018
Reported by Beryl A Ikamari
Download the Decision

Statutes-interpretation of statutory provisions-explosives-meaning of the term "explosive"-scope of the definition of an explosive under the Explosives Act-whether a substance which could only explode with the use of a stimulant was an explosive-whether cyclotrimethylene trinitramine (RDX) was an explosive-Explosives Act, (Cap 115), section 2.
Criminal Law-possession-unlawful possession-nature of conduct that would amount to unlawful possession-whether allegations that accused persons had an explosive placed on a golf course for purposes of causing harm, showed that the accused persons were in possession of the explosive-Penal Code (Cap 63), section 4.
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-fair trial-extraction of evidence allegedly by means of torture and refusal to avail an intelligence report relied on to arrest accused persons-requirements relating to proof of claims of extraction of evidence by means of torture and whether such claims could be made at an Appellate Court in the first instance-extent of an accused's right to access evidence within the prosecution's possession-Constitution of Kenya 2010, articles 50(4) & 50(2)(j).
Evidence Law-circumstantial evidence-probative value of circumstantial evidence-criteria to be met in order for circumstantial evidence to sustain a conviction-where it was shown that there were co-existing circumstances that weakened or destroyed the inference of guilt.
Evidence Law-admissibility-confessions-nature of evidence that constituted a confession-admissibility of evidence which was discovered after an Accused person gave information-effect of improper admission of evidence-where an Accused gave information leading to the discovery of evidence and it was not shown that the information was a confession taken in the prescribed form and before the prescribed authority or persons-Evidence Act (Cap 80), sections 25A & 31; Criminal Law (Amendment) Act, No 5 of 2003, section 102.
Criminal Law-sentencing-principles applicable to sentencing-improper sentencing-circumstances under which an Appellate Court would interfere with the discretion of a Trial Court to impose a sentence on an Accused-imposition of one omnibus sentence for three different counts and failure to take into account the period already spent in custody-Criminal Procedure Code (Cap 75), sections 33(2) & 361(1)(a).

Brief Facts:
The Appellants were citizens of Iran who came to Kenya on June 12, 2012 on tourist/holiday visas which were valid for two weeks. They were intercepted and arrested by officers from the Anti-Terrorism Police Unit, who said that the Appellants were in Kenya on a terroirst mission. They were accused of putting an explosive substance Cyclotrimethylene trinitramine (RDX) at Mombasa Golf Course along Mama Ngina Drive in Mombasa County.
The Appellants were charged before the Chief Magistrate's Court, Nairobi with three offences. First, they were charged with committing an act intended to cause grievous harm contrary to section 231 of the Penal Code. Secondly, they were charged with preparing to commit a felony contrary to section 308(1) of the Penal Code and thirdly, they were charged with being in possession of explosives contrary to section 29 of the Explosives Act.
The evidence against the Appellants was circumstantial as there was no direct evidence of them being in possession of RDX or placing it on the golf course. The Trial Court convicted the Appellants on all three counts and sentenced them to life imprisonment for the first count, ten years imprisonment for the second count and fifteen years imprisonment for the third count, all the sentences were to run concurrently. On appeal at the High Court, the sentence was reduced to a consolidated sentence of 15 years imprisonment. The Appellants preferred a second appeal at the Court of Appeal.

Issues:

  1. Whetherunder the terms of the Explosives Act, cyclotrimethylene trinitramine(RDX) was an explosive, given that it could not explode without the use ofa stimulus to ignite it.
  2. Whetherthere was evidence that the Appellants were unlawfully in possession ofRDX.
  3. Whetherthe Appellants' right to a fair trial was violated by the State in thatevidence was allegedly extracted by means of torture and there was afailure to avail an intelligence report which was relied on to arrest theAppellants.
  4. Whetherthe circumstantial evidence tendered was sufficient to support theconviction.
  5. Whatwere the principles applicable to sentencing and when would an AppellateCourt interfere with a lower Court’s sentence? Read More...

Held:

  1. Undersection 361(1)(a) of the Criminal Procedure Code, on a second appeal, theCourt was obliged to consider only issues of law. It is an establishedprinciple that where two Courts (the Trial Court and the first AppellateCourt) made concurrent findings of fact, the Court is obliged to respectthe findings unless the Court was satisfied that the conclusions are notsupported by the evidence or are based on a perversion of the evidence.
  2. Section2 of the Explosives Act defined the term "explosive." From thedefinition, an explosive included any blasting powder or substance whichwas used or manufactured with the aim of producing a practical effect byexplosion. The evidence of the Government Chemist, PW16 indicated the RDXwas a blasting powder. The mere fact that RDX required a detonator orstimulus in order to explode did not take it outside the definition of anexplosive.
  3. Undersection 2(b) of the Explosives Act, a fuse or detonator was within themeaning of an explosive even though it amounted to a mere igniter. If afuse or detonator, whose purpose was to ignite a substance and cause it toexplode, was an explosive, even the substance that would explode was anexplosive. Neither gunpowder nor dynamite could explode or detonate on itsown but the Explosives Act defined it as an explosive. Gunpowder required anigniting or compressing agent while dynamite required a blasting cap tocause an explosion.
  4. Section4 of the Penal Code defined possession. Under the definition, possessionincluded having anything (whether belonging to or occupied by oneself ornot) for the use or benefit of oneself or of any other person.
  5. Beingin possession of RDX did not require the Appellants to be in actual,personal physical possession of it. It only required evidence that theyknowingly had RDX at the golf course for their use or any other person.
  6. Theright to a fair trial was guaranteed under the Constitution. Part of theright to a fair trial under article 50(2)(j) was the right to be informedin advance of the evidence the prosecution intended to rely on and to havereasonable access to that evidence.
  7. Therecord indicated that the Appellants were availed all the statements ofthe prosecution witnesses before those witnesses testified. They also hadaccess to the exhibits that were produced. What they complained about wasthat they were not given the intelligence report which led to their arrestfor suspicion of involvement in terrorism acts.
  8. TheAppellants were entitled to evidence that the police intended to rely onthe trial and any evidence in the possession of the police that couldexonerate them from the charges they were facing, even though the policedid not intend to use that evidence.
  9. Theright to access evidence that the police intended to rely on was nottotally unfettered; it was qualified by the constitutional requirementthat access ought to be reasonable and it depended on the circumstances ofeach case.
  10. TheAppellant's right to a fair trial under article 50(2)(j) was not violated.All the evidence that the prosecution produced in support of its case wasavailed in advance to the Appellants.
  11. Underarticle 50(4) of the Constitution evidence obtained in a manner thatviolated a fundamental freedom or right in the Bill of rights had to beexcluded if the admission of the evidence would render the trial unfair orwould otherwise be detrimental to the administration of justice. The 1stAppellant made a claim that evidence was obtained from him by means oftorture.
  12. Theclaim of torture was not made when the 1st Appellant appearedbefore the Trial Court and he would reasonably be expected to have madethe claim then. There was nothing on record to substantiate the tortureclaims. Establishing torture required cogent evidence.
  13. Theevidence of the Appellant's possession of RDX was purely circumstantialbecause no witness saw them in possession of the substance or placing iton the golf course. The evidence of PW 7, the taxi driver and PW 14, thegolfer at Mombasa Golf Club, indicated that the Appellants were at thegolf course, but were not in physical possession of any luggage or parcel.
  14. Circumstantialevidence is evidence, which enables a court to deduce a particular factfrom circumstances or facts that have been proved. Such evidence can formas strong a basis for proving the guilt of an accused person just like directevidence.
  15. Circumstantialevidence as a basis for a conviction had to satisfy several conditions,namely;
    1. The circumstances from which the inference of guilt was to be drawn had to established cogently and firmly;
    2. The circumstances had to unerringly point towards the guilt of the Accused;
    3. The circumstances, taken cumulatively, ought to form a chain so complete that there was no escape from the conclusion that within all human probability the crime was committed by the Accused and none else; and,
    4. The prosecution had to establish that there were no other co-existing circumstances which would weaken or destroy the inference of guilt.
  16. Fromthe evidence on record, the golf course was not fenced or guarded and itwas possible for any member of the public to enter it and place the RDXwhere it was found. In the absence of any other circumstantial evidencetying or linking the Appellants to the RDX, the easy accessibility,without let or hindrance, of the golf course showed strong co-existingcircumstances that were capable of destroying the inference of guilt onthe part of the Appellants.
  17. Evidenceshowed that the Appellants had special knowledge of the existence andconcealment of the RDX on the golf course. The Appellants led the policeto the place where the RDX was found on the golf course. The Trial Courtand the first Appellate Court found that the evidence with regards to theRDX voided the possibility of other co-existing circumstances capable ofdestroying the inference of guilt on the Appellant's part.
  18. Section25A of the Evidence Act made confessions inadmissible unless they weremade in Court. Section 102 of the Criminal Law (Amendment) Act, 2003,which repealed section 31 of the Evidence Act provided that informationfrom an Accused person leading to the discovery of evidence was notadmissible. Additionally, the Statute Law (Miscellaneous Amendments) Act,2007, allowed confessions to be made before a judge, a magistrate or apolice officer (other than an investigating officer), being an officer notbelow the rank of Chief Inspector of Police, and a third party of thesuspect’s choice.
  19. Itwas never the prosecution's case that the Appellants had confessed tocommitting the offences that they were charged with. Accordingly, the TrialCourt and first Appellate Court erred in admitting the evidence which ledto the discovery of the RDX.
  20. TheTrial Court erred in sentencing the Appellants to 15 years imprisonmentfor an offence for which the maximum prescribed sentence was 7 yearsimprisonment but that was not evidence of judicial bias. It was an errorwhich was eventually corrected by the first Appellate Court.
  21. Thechallenge relating to the sentence was essentially a challenge on theexercise of discretion. As a principle, an Appellate Court would notinterfere with the exercise of discretion unless it is shown that the TrialCourt acted on wrong principles; ignored material factors; took intoaccount irrelevant considerations; or on the whole that the sentence ismanifestly excessive.
  22. Undersection 361 (1) (a) of the Criminal Procedure Code severity of a sentencealone was a question of fact, not one of law. Without a demonstration thatthe Court erred on principle, the Court of Appeal had no basis forinterfering with the sentence.
  23. Somecomments by the Trial Court, with respect to sentencing, wereunnecessarily exuberant but they did not form a basis for impeaching theAppellant's conviction, particularly when they were made at the tail endof the trial rather than at the beginning. A Trial Court could considerthe prevalence of an offence before sentencing an Accused person but itought not to suggest or imply that an Accused person committed offencesfor which he had not been convicted or permit the making of prejudicialstatements meant to influence the severity of a sentence.
  24. Ontwo grounds the first Appellate Court could be faulted with regard tosentencing. First, it imposed an omnibus sentence for all three counts.The Appellants were entitled to be sentenced separately for each count.However, the Appellants did not raise an issue concerning the omnibussentence. The second was the failure of the Appellate Court to take intoaccount in a meaningful way, the period that the Appellants had alreadyspent in custody.
  25. Undersection 333(2) of the Criminal Procedure Code, in sentencing, the Courtwould take into account the period already spent in custody by an Accusedperson. Taking that period into account would mean that the sentence wouldbe reduced in proportion to the period already spent in custody. It wasnot enough for the Court to merely state that it had taken that periodinto account and still order for the sentence to run from the date ofconviction. That amounted to ignoring altogether the period already spentin custody. The Appellate Court ought to have directed the sentence to runfrom the date of the Appellant's arrest.
  26. Theerror by the Trial Court and first Appellate Court of admitting theevidence from the 1st Appellant which allegedly led to thediscovery of the RDX at the gold course, meant that the remainingcircumstantial evidence was so weak that it did not unerringly point tothe guilt of the Appellants as the only persons who could have placed theRDX on the golf course. The exclusion of the evidence on the discovery ofthe RDX, meant that there were strong co-existing circumstances thatcompletely destroyed the inference of the Appellant's guilt.

Appeal allowed. (Appellants set at liberty and repatriated back to their country unless they were otherwise lawfully held.)

LAND LAW Due Process Has to Be Followed in Compulsory Acquisition

Mike Maina Kamau v Attorney General [2017] eKLR
Environment and Land Case1303 of 2014 (Formerly Civil Case193 of 2010)
Environment and Land Court at Nairobi
Milimani Law Courts
L. Gacheru, J
November 29, 2017
Reported by Felix Okiri

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Land Law – compulsory acquisition – due process in compulsory acquisition of land - requirement for issuance and service of Gazette Notices for parcels of land earmarked for compulsory acquisition - claim by the petitioner that he was not served with the mandatory preliminary notices in the Kenya Gazette – Kenya Roads Act, 2007, section 49(1); Part VII of the Land Act, 2012; Constitution of Kenya (repealed), section 75; Constitution of Kenya, 2010, article 40(3)
Land Law – ownership of title – challenge of ownership to title - indefeasibility of title – where property was transferred to the Plaintiff who became the absolute and indefeasible proprietor of the suit land- whether the title of an absolute owner of property could be subject to challenge - where it was alleged that the suit title was acquired through fraud or misrepresentation - what was the standard of proof in proving fraud in challenging title to property- Registered Lands Act (Repealed), section 23(1); Land Registration Act 2012, section 26(1) (a)&(b)
Civil practice and procedure - striking out of a suit – grounds of striking out a suit - abuse of the court process- allegation that a suit was an abuse of the court process- what entailed abuse of the court process

Brief Facts:
The suit property came into being by way of allotment to M/S Pelican Engineering & Construction Co Ltd which transferred the suit property to Muthithi Investiments Co. Ltd in 1993 who applied to amalgamate the two referred properties with the consent of the Commissioner of Lands. In 2008, the amalgamated property was transferred to the Plaintiff who became the absolute and indefeasible proprietor of the suit land.
The house that the Plaintiff had built on the suit land was demolished by the officers from the Ministry of Roads without proper statutory notice on the pretext that the said house and/or property was on a road reserve.

Issues:

  1. Whether the Plaintiff held a good title to the suit property where the root of the Plaintiff’s title was traceable.
  2. Whether a legally acquired title to land could be challenged.
  3. Whether due process was followed in compulsory acquisition where the Plaintiff was not issued sufficient and reasonable notice as provided by section 49(1) of the Kenya Roads Act, 2007.
  4. Whether a suit seeking for compensation for loss incurred due to the demolition carried out on the property by the State without Court Order allowing such demolition was an abuse of the court process.
  5. Whether the Plaintiff was entitled to any compensation.
  6. What was the standard of proof in proving fraud in challenging title to property? Read More..

Relevant Provisions of the Law
Registration of Titles Act (now repealed)
Section 23(1) of the and repeated in Section 26(1) (a)&(b) of the Land Registration Act 2012,
“The certificate of title issued by the registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge except:-

a. On the ground of fraud or misrepresentation to which the person is proved to be a party: or
b. Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

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.
2. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

The Kenya Roads Act 2007
Section 49(1)
“Where a person without the permission required by Subsection (1) or contrary to any permission given hereunder, erects, Constructs, lays or establishes a structure or other thing, or makes a structural alteration or addition to a structure or other thing, an authority may be Notice in writing direct that person to remove the unauthorized structure, other thing, alteration or addition within a reasonable period which shall be stated in the notice but which may not be shorter than thirty days calculated from the date of the notice”.

The Constitution of Kenya, 2010
Article 40(6)
“The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.

Article 40(2)(a)
(2) Parliament shall not enact a law that permits the State or any person—
(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description.
Article 40(3) of the Constitution
(3) The State shall not deprive a person of property of any description,
or of any interest in, or right over, property of any description, unless
the deprivation—

a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or
b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—

i. requires prompt payment in full, of just compensation to the person; and
ii. allows any person who has an interest in, or right over, that property a right of access to a court of law.

Environment and Land Court Act No.19 of 2011
Section 13(7)
“In exercise of its jurisdiction under this Act, the Court shall have power to make any order or grant, any relief as the Court deems fit and just including:-

a) Interim or permanent preservation orders including injunction.
b) Prerogative orders
c) Award of damages
d) Compensation
e) Specific performance
f) Restitution
g) Declarations or
h) Costs.

Civil Procedure Act
Section 27
(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.

Held:

  1. The Plaintiffs held a good title to the suit property. The root of the Plaintiff’s title was traceable. The correspondence file was still available at the lands office and it showed that letters of allotment were issued to M/S Pelican Engineering & Construction Co. Ltd on August 22, 1990. Further, there was a formal acceptance by the said allotee to whom Certificate of titles were issued. Title to landed property could only come into existence after issuance of a letter of allotment, meeting the conditions stated in such a letter and actual issuance thereafter of a title document pursuant to the provisions of the Act under which the property was held.
  2. Section 23(1) of the Registered Lands Act gave an absolute and indefeasible title to the owner of the property. The title of such an owner could only be subject to challenge on grounds of fraud or misrepresentation to which the owner was proved to be a party. Such was the sanctity of title bestowed upon the title holder under the Act. It was Kenya’s law and the law took precedence over all other alleged equitable rights of title. In fact the Act was meant to give such sanctity of title, otherwise the whole process of registration of title and the entire system in relation to ownership of property in Kenya would have been placed in jeopardy.
  3. The Plaintiff acquired the suit property after it was transferred to him. There was no notice that the title held by Muthithi Investments Co.Ltd was tainted with fraud. The Court presumed that the Plaintiff acquired a good title. The Plaintiff having checked and confirmed that Muthithi Investments Co. Ltd was the registered owner of the suit property as at 2008, he had no reason to question how Muthithi Investments Co. Ltd acquired the land.
  4. The Registered Lands Act was based on the Torrens System. Under that system, indefeasibility of title was the basis for land registration. The State maintained a Central Register of land title holdings which was deemed to accurately reflect the current facts about title. The whole idea was to make it unnecessary for a party seeking to acquire interest in land to go beyond the register to establish ownership. The person whose name was recorded on the register held guaranteed title to the property. Since the state guaranteed the accuracy of the register, it made it unnecessary for a person to investigate the history of past dealings with the land in question before acquiring an interest.
  5. It was unnecessary for the Plaintiff to investigate the history of the past dealings, so long as he was satisfied with the existence of the certificate of title at the lands office. Given that the history and root of the impugned title could be traced, the Plaintiff held a good title to the suit property which title had not been cancelled and/or revoked.
  6. Being the registered owner of the suit property, the Plaintiff was deemed to be the absolute and indefeasible owner. However, the said certificate could be challenged if the same was acquired through fraud or misrepresentation in which he was found to have been aware and involved. The certificate of title was issued by the land officials. None of them gave evidence of how irregular or fraudulent the Plaintiff’s title was. None of them disputed the existence of the certificate of title in issue. Allegations of fraud had to be strictly proved although the standard of proof was not so heavy as to have required proof beyond reasonable doubt, but something more than a mere balance of probabilities was required. In the common law courts, no rule was more clearly settled than that fraud had to be distinctly proved and that it was not allowable to leave fraud to be inferred from the facts. There was no evidence produced by the Defendant to prove the allegations of fraud especially on the part of the Plaintiff.
  7. The Plaintiff still held the original title deed to the suit property although the house that he had built thereon was demolished on June 14, 2010 by the officers from the Ministry of Roads on the pretext that the said house and/or property was on a road reserve. There was no evidence of the alleged marking or visits by the Ministry of Roads officials to the Plaintiff’s premises and warning him of the impending demolitions. The Ministry of Roads had a duty to issue sufficient and reasonable notice to the Plaintiff as provided by section 49(1) of the Kenya Roads Act, 2007.
  8. The Kenya National Highway Authority (Kenha) or Kenya Urban Roads Authority (KURA) needed to have given a reasonable notice of 30 days to the Plaintiff for removal of the allegedly illegal structures. There was no evidence of such Notice and if the Ministry of Roads demolished the Plaintiff’s house without having given the relevant mandatory notice, then the action of the Ministry of Roads officials was illegal and arbitrary.
  9. Article 40(6) of the Constitution was available in instances where the property was found to have been unlawfully acquired. The Plaintiff was not found to have acquired his property unlawfully by any court of law or any legally established institution. The Ministry of Roads officials did not have any Court Order authorizing them to demolish the suit property. They acted arbitrary and unlawfully. Where the state contended that a property was acquired illegally, the State had to follow due process to establish the illegality. Further, the Ministry of Roads officials carried out demolition in contravention of the existing Court Order in Petition No.6 of 2010. Therefore their action wasillegal, null and void. The Plaintiff was entitled to protection of the Constitution because he had an absolute and indefeasible title which had not been cancelled. That protection was accorded by articles 40(2) (a) and 40(3).
  10. By demolishing the Plaintiff’s house which was erected on the suit property, the state through the Ministry of Roads officials and Minister of Roads and Public Works failed to allow the Plaintiff a right to access a court of law before the said demolition took place. Kenya had opted for the rule of law and the rule of law implied due process. The court had to stick to that path even if the public could in any particular case have wanted a contrary thing and even if those who were mighty and powerful might have ignored the court’s decisions. The court had to continue to give justice to all and sundry irrespective of their status or previous status. The Ministry of Roads officials and the then Minister of Roads did not follow the due process while carrying out the said demolition of the Plaintiff’s property. That failure rendered the whole process illegal and unlawful.
  11. If the State required the suit parcel of land for the purpose of road construction, the State should have followed the due process as laid down in Part VII of the Land Act on compulsory acquisition of interest in land and section 75 of the Constitution of Kenya (repealed). In demolishing the Plaintiff’s property without following the due process, the State contravened the Plaintiff’s Constitutional right not to be deprived of property unless the deprivation resulted from an acquisition of land for a public purpose or in the public interest as provided by article 40(3) of the Constitution.
  12. Even where the public interest always superseded the private interest, at least due process ought to have been followed and the State had no right whatsoever to trample on the Plaintiff’s rights and/or breach his right to property as provided by article 40 of the Constitution. The action of the State or Ministry of Roads officials contravened article 47 of the Constitution. The public interest as alluded by the Defendant did not give a license to the State or officials of Ministry of Roads to breach the Plaintiff’s constitutional rights as due process ought to have been followed. Having demolished the Plaintiff’s property without authority and having failed to follow the due process, the Court could not find and hold that the public interest overrode the private interest of the Plaintiff in the suit property.
  13. A suit was an abuse of the court process where it was frivolous, vexatious or both. A suit was frivolous if it had no substance and it was vexatious when it had no foundation or no chance of succeeding. The Plaintiff had filed the instant suit seeking for compensation for loss incurred due to the demolition carried out on his property by the State without Court Order allowing such demolition. Further, the Plaintiff was a holder of an unrevoked title deed. The above issues had raised reasonable cause of action and the Plaintiff was seeking for declaration that his rights were trampled upon by the State. The Plaintiff therefore had a reasonable cause of action and the suit was not an abuse of the court process.
  14. The Defendant’s counter-claim was hinged on fraud which was a serious allegation which had to be strictly proved. Apart from making general allegations of fraud, the same was not strictly proved. The Defendant was thus not entitled to the prayers sought in its Counter-claim as allegations of fraud were not strictly proved.
  15. The Plaintiff had legitimate expectation which was later thwarted when the suit property was demolished. The Plaintiff was therefore entitled to the declarations sought in his plaint. The City Council of Nairobi in approving the development plans must have been satisfied that the property was not on a road reserve. Further during the course of the development until the development was completed, the Defendant did not appear to have raised any objection to the development on the basis that the development was taking place on a road reserve or was encroaching on land reserved for construction of a road. The State through the Ministry of Roads did also not raise any objection until the said property was near completion. The Defendant could not come at the tail-end of the construction and allege that the title to the property was irregularly acquired and that the development was illegal. The Court had a duty to uphold the sanctity of the title and the tenets of the Constitution. The Plaintiff was thus entitled to the declarations sought.
  16. The Court had power to award damages and costs as well as compensation under section 13(7) (c) & (d) of the Environment and Land Court Act No.19 of 2011. Damages was that sum of money which would put the injured party in the same position as he would have been if he had not sustained the wrong for which he was now getting his compensation or reparation.

Petition allowed
Orders

  1. Kshs.651,588,204/= awarded as compensatory damages based on the full replacement of the suit property.
  2. Kshs.50, 000,000/= awarded as general damages for distress, pain and sufferings.
  3. Kshs.10,000,000/= awarded as aggravated and exemplary damages
  4. The Defendants Counter-claim was dismissed with costs to the Plaintiff.
  5. To avoid unjust enrichment, the Plaintiff was to surrender his certificate of title to the State.
  6. Plaintiff was entitled to costs of the suit plus interest from the date of the Judgment until payment in full at the court’s rate.
EVIDENCE LAW The Role of Witnesses in Succession Matters where the Validity of a Will was in Question

In re Estate of Josphat Gatia Muchiri (Deceased) [2018] eKLR
Succession Cause No. 1721 of 2000
High Court at Nairobi
W. Musyoka, J
March 21, 2018.
Reported by Kakai Toili

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Evidence Law – evidence – witnesses – role of witnesses – where the validity of a will was in question - what was the role of witnesses in succession matters where the validity of a will was in question
Law of Succession - probate and administration – application for grant of letters of administration – revocation of grant of letters of administration – requirements for a grant of letters of administration to be revoked – obtaining grant of letters of administration in a defective proceeding - whether a grant of representation could be revoked on grounds that it was obtained in defective proceedings - Law of Succession Act, section 76
Law of Succession –probate and administration - wills – making of wills – requirements – sound mind - tests required to establish that a Testator was of sound mind - what were the tests required to establish that a Testator was of sound mind while making a will
Evidence Law – burden of proof – burden of proof in succession matters - who bore the burden of proof in succession matters – Law of Succession Act, section 5 (4)

Brief Facts:
The Deceased’s wife in her capacity as widow of the Deceased lodged a petition in the Subordinate Court for a grant of letters of administration intestate. In the Petition the Deceased was said to have died intestate and to have been survived by 2 widows and 13 children. The Deceased’s wife further lodged a petition for limited grant of probate in the same cause and averred that the Deceased had died testate having made a valid will dated July 21, 1991. The survivors listed were the same as those in the Petition in intestacy. A grant of letters of administration with written will annexed was and later confirmed made by the Subordinate Court at Thika.
The Applicant, who was one of the Deceased’s children filed the instant Application, seeking revocation of the grant made in the Trial Court on the grounds that the Petition in the Subordinate Court had been initiated without the knowledge and involvement of him and his siblings and alleged that the will the basis of the Petition in the Subordinate Court was invalid for it was made when the Deceased was not of sound mind and was procured by fraud or coercion or importunity.

Issues:

  1. What was the role of witnesses in succession matter where the validity of a will was in question?
  2. What were the tests required to establish that a Testator was of sound mind while making a will?
  3. Who bore the burden of proof in succession matters?
  4. Whether a grant of representation could be revoked on grounds that it was obtained in defective proceedings. Read More...

Relevant Provisions of the Law:
Law of Succession Act
Section 5
(1) Subject to the provisions of This Part and Part III, any person who is sound of mind and not a minor may dispose of all or any of his free property by will, and may thereby make any disposition by reference to any secular or religious law that he chooses.
(2)
(3) Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is, at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he was doing.
(4) The burden of proof that a testator was, at the time he made any will, not of sound mind, shall be upon the person who so alleges.

Section 11
No written will shall be valid unless-

(a) The testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;
(b) The signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;
(c) The will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark , or of the signature of that other person, and each of the witnesses must sign the will in the presence of the testator , but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.’

Held:

  1. The law on validity of written wills and testaments was stated in sections 5, 7 and 11 of the Law of Succession Act (the Act). Section 5 dealt with the capacity of the maker of the will. There was conflicting evidence as to the Deceased’s state when the will was made, a day before the he was admitted in hospital with multiple myeloma. The Deceased was not a minor, he suffered no disability with respect to age. What needed to be determined was whether he was of a disposing mind.
  2. According to section 5(3) of the Act, a disposing mind was that of a person who at the time of executing their will knew what they were doing. A person who on account of mental illness or physical illness or drunkenness, signed a will while in that state of mind was deemed to have lacked a disposing mind for he would not know what he would be doing. According to section 5(4) of the Act, it was up to the person alleging lack of such a mind to prove it. The side that bore burden of establishing the lack of soundness of mind on the part of the Deceased at the time he allegedly made the will was with the Applicants.
  3. A testator had to, at the material time of making a will know what he was in fact doing, disposing of his assets to the persons that he was obligated in law to dispose it of to. He had to know that he was making a will and for that purpose. A Testator had to be able to know or remember the assets that he was to distribute and the persons who in law were entitled to such distribution. That meant that a person who drew or signed a document purporting it to be a will yet not knowing what he was doing, in terms of not knowing that he was disposing of his property by will was said to lack a sound disposing mind. That had to also apply to a person who, while purporting to dispose of property by will, could not recall the persons that he was bliged legally to provide for.
  4. The Applicant’s 2nd witness attended to the Deceased and was the one who made the diagnosis that facilitated his admission. He could therefore speak authoritatively on the general state of health, both physical and mental, of the Deceased as at the material time. The evidence raised serious doubts as to the capacity of the Deceased to make a valid will on July 22, 1991. However, the will was allegedly made on July 21, 1991. It was possible that the Deceased was in two different states of mind on the two distinct dates. The Deceased knew what he was doing on July 21, 1991. The events of July 22, 1991 should not have been used as a basis to assess the mental state that the Deceased was in on July 21, 1991.
  5.  Section 11 of the Act dealt with the law relating to the making of written wills, specifically it related to the formalities. The original document that had been probated as the will of the Deceased was in the native language of the Deceased, Kikuyu. It was dated July 21, 1991 and bore three signatures at its foot. On the face of it, it appeared to be a testamentary statement to the extent that it disposed of property. It bore three signatures. It was however not indicated who the three signatories were but it was presumed that it was the Deceased and his two witnesses.
  6. It was the responsibility of he who alleged that the Deceased did not sign it to prove that allegation. It was up to the Applicant to establish that the Deceased did not sign the document or that none of the signatures on the document were his or that even if one of them looked like his it was forged. The Applicant and his uncle merely said that the signature on the will alleged to be the Deceased’s was not his, beyond that no evidence was adduced to demonstrate that it was not the signature of the Deceased.
  7. The Respondent did not see the attesting witnesses come home the day that the will was allegedly made and she did not even call them to shed light on the making of the will, yet that was their principal role as such. It was up to the propounder of the will to answer the questions as to when the will could have possibly been made on July 21, 1991, who was present apart from the Deceased, whether the Deceased prepared it all on his own and when the attesting witnesses signed the will.
  8. No evidence was placed before the Court to support the contention that the will was procured by the Respondent through undue influence. Therefore the Court did not seek to define undue influence or to analyze the material before it to ascertain whether or not there was undue influence. He who alleges must prove. The Applicant should have demonstrated that the Respondent infact forced or coerced or exerted pressure in some way on the Deceased so as to make the will in the manner that he did. He did not make any effort to do so.
  9. The Applicant’s case appeared to have been built on the rather unhappy relationship that was there between his mother and the Deceased and the rather cozy relationship between the Respondent and the Deceased which persisted till the Deceased’s demise. It appeared that that bad blood had an influence in the way the Deceased distributed his estate in the purported will as the Respondent and her side of the family appeared to benefit the most from it but there was no positive evidence of exercise of undue influence.
  10. Before the Court was a document which purportedly bore a signature of the Deceased supported by other signatures. However, the circumstances of the making of the said document was shrouded in mystery as no one appeared to have been present when the will was made, as no one was presented as having been present when the will was made and there was no evidence as to whether the attesting witnesses appended their signatures in the presence of the Deceased or after he had acknowledged his signature to them. The role of witnesses was to authenticate the making of the will as and when the fact of its making was called into question. They come forward to testify as to having been present at the making of the will or to the acknowledgment by the Deceased of his signature on the document before they appended their signatures.
  11. There was no proof that the Deceased made the will in question. It was allegedly made on a day when the Deceased had people all around him as he was unwell, yet no one saw him make it, the witnesses never came to his home that day and he did not himself talk about it. The Deceased did not make the will on record, it was not valid and ought not to have provided basis for the proceedings conducted in the Subordinate Court.
  12.  According to section 76 of the Act, a grant of representation was revocable on grounds that it was obtained in defective proceedings or that there was misrepresentation of facts among others. The proceedings in the Subordinate Court were mounted on a will that was invalid, the said proceedings were defective and a nullity.

Application allowed

  1. The Grant made in Thika SPMCSC No. 32 of 1994 revoked and all consequential orders founded on the said Grant nullified.
  2. The Court file in Thika SPMCSC No. 32 of 1994 be returned to the registry of the Thika Chief Magistrate’s Court with directions that the matter of the estate of the Deceased start de novo on the understanding that the Deceased had died intestate.
  3. All High Court causes relating to the said estate were spent and the relevant files be closed.
  4. Each party to bear its own costs.

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