Weekly Newsletter 040/2018

Weekly Newsletter 040/2018



Kenya Law

Weekly Newsletter


Rights and interest previously vested in a group, family or individual under African Customary Law are not extinguished upon registration of trust land
Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR
Petition No. 10 of 2015
Supreme Court of Kenya
D K Maraga, CJ; M K Ibrahim, J B Ojwang, S C Wanjala & N S Ndungu, SCJJ
October 5, 2018.
Reported by Kakai Toili
Download the Decision
 
Land Law-registration of land-registration of trust land-where the rights and interest in the land were previously vested in a group, family or individual under African Customary Law- whether upon registration of trust land, rights and interest previously vested in a group, family or individual under African Customary Law were extinguished-what were the circumstances in which African customary rights to trust land could be excluded-Constitution of Kenya(repealed), section 115, 116 &  117; Registered Land Act(repealed), section 27, 28(b) & 30 (g)
Land Law interests in land- overriding interests in land-customary trusts-what were the factors to consider in determining whether a claim of a right to land qualified as a customary trust- whether it was mandatory for one to be in actual physical possession and occupation of the land in order to prove a customary trust in land- what were the differences between the Registered Land Act (repealed) under the Constitution (repealed) and the Land Registration Act under the Constitution with regard to overriding interests on land-Registered Land Act (repealed), section 28(b) & 30 (g)
 
Brief Facts:
The Respondents filed a suit at the Chief Magistrate’s Court; however, the suit was transferred to the High Court. The Respondents were members of a clan, which owned a large parcel of ancestral land. They averred that during the process of land adjudication, it had been agreed that the land would be sub-divided and each portion registered in the name of an appointed member who would then hold the land in trust on behalf of a specific household. Pursuant to that agreement, the Respondents averred that the suit was allocated to their grandfather’s household and registered in the names of the Respondents’ uncles to hold in trust on behalf of the entire household. As such, the Respondent claimed that the Appellants held one third of the suit property in trust on behalf of their deceased father. They averred that they had lived on the said property, were in possession of it and had made substantial developments on the same. 
The High Court while entering judgment for the Respondents held that the Respondents had established the existence of a trust in their favour on the basis of their being in actual occupation and also as bona-fide members of the household. Aggrieved by the decision, the Appellants filed an appeal to the Court of Appeal which affirmed the High Court’s decision. Aggrieved by the Court of Appeal’s decision, the Appellants filed the instant Appeal.

 
Issues:
  1. Whether upon registration of trust land, rights and interest previously vested in a group, family or individual under African Customary Law were extinguished.
  2. What were the circumstances in which African customary rights to trust land could be excluded?
  3. What were the factors to consider in determining whether a claim of a right to land qualified as a customary trust?
  4. Whether it was mandatory for one to
  5. What were the differences between the Registered Land Act (repealed) under the Constitution (repealed) and the Land Registration Act under the Constitution with regard to overriding interests on land?
Relevant Provisions of the Law
Constitution of Kenya (repealed)
Section 115
(1) All Trust land shall vest in the county council within whose area of jurisdiction it is situated.
(2) Each county council shall hold the Trust land vested in it for the benefit of the persons ordinarily resident on that land and shall give effect to such rights, interests, or other benefits in respect of the land as may, under the African customary law for the time being in force and applicable thereto, be vested in any tribe, group, family or individual provided that no right, interest or other benefit under African customary law, shall have effect for the purposes of this sub-section so far as it is repugnant to any written law.”

Section 116
(1) A county council may, in such manner and subject to such conditions as may be prescribed by or under an Act of Parliament, request that any law to which this sub-section applies shall apply to an area of Trust land vested in that county council, and when the title to any parcel of land within that area is registered under any such law otherwise than in the name of the county council it shall cease to be Trust land.

Section 117
(2)  Where a county council has set apart an area of land in pursuance of this section, any rights, interests or other benefits in respect of that land that were previously vested in a tribe, group, family or individual under African customary law shall be extinguished.
(4) No setting apart in pursuance of this section shall have effect unless provision is made by the law under which the setting apart takes place for the prompt payment of full compensation to any resident of the land set apart who-
(a) under theAfrican Customary law for the time being in force and applicable to the land, has a right to occupy any part of the land;

Registered Land Act(repealed)
Section 27

(a) The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto”

Section 28
The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together will all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject-

(a) to  the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and
(b) unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by Section 30 not to require noting on the register;

 Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.”

 Section 30

Unless the contrary is expressed in the register, all registered land shall be subject  to such of the following overriding interests as may for the time being subsist and affect the same, without their being noted on the  register-

(f) rights acquired or in the process of being acquired, by virtue of any written law relating to the limitation of actions or by prescription.
(g) the rights of a person in possession or actual occupation of land to which he is entitled in right only of such possession or occupation, save where inquiry is made of such person and the rights are not disclosed.”

 
Held:
  1. Three statements of legal principle were deducible from the Bennett J, doctrine in Obiero v Opiyo(1972) E.A 227(Obieroo v Opiyo), which decreed that rights to land under customary law became extinguished upon registration of the land in question. They were:
    1. The registration of land under the Registered Land Act (repealed) extinguished customary rights to that land for all purposes.
    2. Rights under customary law or such rights as existed prior to registration were not overriding interests under section 30 of the Registered Land Act (repealed).
    3. The trust envisaged under the proviso to section 28 of the Registered Land Act(repealed) was the trust known under English common law and doctrines of equity. In other words, customary law was incapable of creating a trust to which a registered proprietor would be subject after registration.
  2. The Bennett doctrine was a jurisprudence borne out of colonial land tenure policy. It was a jurisprudence, whose unstated contrivance was to consign customary land law and rights flowing therefrom, to the dustbins of eternity. It was a judicial validation of the Swynnerton Plan whose architect argued that s
  3. Land in a traditional African setting, was always the subject of many interests and derivative rights. The content of such interests and rights was often a complex area of inquiry. Such rights could be vested in individuals or group units. The rights and interests frequently co-existed with each other, for example, the rights of members of a family did not necessarily derive from the corporate rights of the family as such, but by operation of the applicable law and customs. Besides, the enjoyment of the rights was dependent on the fulfilment of certain conditions unique to the group unit. Several rights of the members could be inferior to, or co-terminus with, or indeed superior to the sum total of the rights of a group. Hence, customary law did not vest ownership, in land in the English sense, in the family, but ascribed to the family the aggregate of the rights that could be described as ownership.
  4. The decisions in Obiero v Opiyo and Esiroyo v Esiroyo (1973) E.A 388 were based on faulty conceptual and contextual premises. Faulty conceptually because, they did not take into account the complex nature of customary rights to land, and faulty contextually because in interpreting sections 27, 28 and 30 of the Registered Land Act(repealed), the courts paid little or no attention to the relevant provisions of the Constitution(repealed) regarding trust land. It was the registration of land in the trust land areas that had triggered the enduring tension between registered proprietors and claimants under customary law.
  5. Neither section 115 nor 116 of the Constitution (repealed) stipulated that upon registration of trust land, any rights, interests or other benefits in respect of that land that were previously vested in a tribe, group, family or individual under African Customary Law had to be extinguished. All that the section provided was that no right, interest or other benefit under African Customary Law had to have effect for the purposes of section 115 (2)) of the Constitution(repealed)so far as it was repugnant to any written law.On the contrary, the Constitution(repealed) was categorical that each county council had to
  6. The obligation imposed upon a county council to give effect to rights under African Customary Law applicable to trust land did not cease upon the application of the Land Consolidation Act and the Land Adjudication Act to that land. In fact, the duty to give effect to those rights, became more pronounced, during the land registration process. Given the fluidity and complexity of those rights, such rights could not find expression in the register in their totality. Such customary rights as could not be noted on the register would have to be recognized somehow, for they had already been recognized by the Constitution.
  7. The obligations of a registered proprietor upon a first registration, as embodied in section 28(b) and section 30 (g) of the Registered Land Act (repealed), could only logically, be traceable to the rights, interests or other benefits under African Customary Law. Given that historical context and the constitutional and statutory provisions, it could not have been so easy to declare that rights under customary law were extinguished for all purposes upon the registration of a person and that none could survive whatsoever.
  8. The only situation where the Constitution (repealed) envisaged the extinction of African customary rights to trust land was where such land had been set apart for a public purpose under section 117. Besides, the setting apart of trust land under section 117, hence the extinction of rights under African customary law, could only take effect upon the prompt payment of full compensation. The only situation where African Customary Law would be excluded was where such law was determined to be repugnant to any written law. was such a polemical and subjective notion that it could hardly have provided a stable yardstick for the extinction of customary land rights.
  9. Courts vide ection 163 of the Registered Land Act(repealed) had been more willing to import the doctrines of implied, resulting and constructive trust as known in English law, into section 28 of the Act. The notion of a customary trust, which should have been the first port of call had only been gradually and hesitatingly embraced. Due to that judicial hesitancy, the vital elements and content of a customary trust had yet to be fully and clearly developed.
  10. The rights of a person in possession or actual occupation of trust land before registration were rights arising under African Customary Law, put differently, the rights of a person arising under African customary law as evidenced by his/her being in possession or actual occupation of the land were overriding interests under section 30 (g) of the Registered Land Act(repealed). Such rights of a person that subsisted at the time of first registration, as evidenced by his being in possession or actual occupation, were rooted in customary law. They arose under African Customary Law. They derived their validity from African Customary Law. They were rights to which one was entitled They had no equivalent either at common law or in equity. They did not arise through adverse possession; neither did they arise through prescription. If they arose through those processes, they would be overriding interests, not under section 30(g), but under section 30(f) of the Registered Land Act (repealed).
  11. It was customary law and practice that clothed the rights of a person in possession or actual occupation with legal validity. If customary law and practice did not recognize such possession or actual occupation, then it could not be a right to which a person was entitled.
  12. A customary trust, as long as the same could be proved to subsist, upon a first registration, was one of the trusts to which a registered proprietor was subject under theproviso to section 28 of the Registered Land Act(repealed). Under that legal regime, the content of such a trust could take several forms. For example, it could emerge through evidence that part of the land registered was always reserved for family or clan uses, such as burials and other traditional rites. It could also be that other parts of the land, depending on the specific group or family setting, were reserved for various future uses such as construction of houses and other amenities by youth graduating into manhood. The categories of a customary trust were therefore not closed. It was for the Court to make a determination on the basis of evidence as to which category of such a trust subsisted as to bind the registered proprietor.
  13. Each case had to be determined on its own merits and quality of evidence. It was not every claim of a right to land that would qualify as a customary trust. In that regard, what was essential was the nature of the holding of the land and intention of the parties. If the holding was for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they were in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee were:
    1. The land in question was before registration, family, clan or group land.
    2. The claimant belonged to such family, clan, or group.
    3. The relationship of the claimant to such family, clan or group was not so remote or tenuous as to make his/her claim idle or adventurous.
    4. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.
    5. The claim was directed against the registered proprietor who was a member of the family, clan or group.
  14. Rights of a person in possession or actual occupation of land under section 30(g) of the Registered Land Act (repealed) were customary rights. Once it was concluded that such rights subsisted a court needed not to fall back upon a customary trust to accord them legal sanctity since they were already recognized by statute as overriding interests.
  15. To prove a trust in land one needed not be in actual physical possession and occupation of the land. A customary trust fell within the ambit of the proviso to section 28 of the Registered Land Act(repealed) while the rights of a person in possession or actual occupation were overriding interests and fell within the ambit of section 30(g) of the Registered Land Act(repealed).
  16. Although the Respondents were not in possession or actual occupation of suit property, both the High Court and the Court of Appeal were entitled to enquire into the circumstances of registration to establish whether a trust was envisaged. Since the two courts were satisfied that indeed elements of a customary trust in favour of the Respondents pertaining to the parcel existed, there was no reason to interfere with their conclusions.
  17. Legislative intent could not always be attributable to what the Legislature said through statute. To assume that what Parliament did not say in the final legislative edict was never meant to be, was to tread the dangerous path of judicial cynicism. Parliament could not legislate for every exigency of human existence. Indeed, there was nothing easy when the Legislature sat to make laws; just as there was never a straight-forward or clear-cut route when a court embarked on the interpretation of a written law.
  18. The provisions of section 28 of the Registered Land Act(repealed) including the proviso thereto, were re-enacted as section 25 of the Land Registration Act. The provisions of section 30 of the Registered Land Act(repealed) were re-enacted as section 28 of the Land Registration Act. However, Parliament introduced two categories of overriding interests namely;
    1. Spousal rights over matrimonial property.
    2. Trusts including customary trusts.

    The rights of a person in possession or actual occupation of land to which he was entitled in right only of such possession or occupation as previously provided for under section 30 (g) of the Registered Land Act(repealed), were no longer on the list of overriding interests under section 28 of the Land Registration Act.

  19. Customary trusts as well as all other trusts were overriding interests. Those trusts being overriding interests were not required to be noted in the register. However, by retaining the proviso to section 28 of the Registered Land Act (repealed) in section 25 of the Land Registration Act, it could be logically assumed that certain trusts could be noted in the register. Once so noted, such trusts, not being overriding interests, would bind the registered proprietor in terms noted on the register.
  20. The rights of a person in possession or actual occupation of land, as envisaged under section 30 (g) of the Registered Land Act (repealed), had been subsumed in the customary trusts under section 25 (b) of the Land Registration Act. Under section 25 (b) of the Land Registration Act, a person could prove the existence of a specific category of a customary trust, one of which could arise, although not exclusively from the fact of rightful possession or actual occupation of the land. The instant Judgment was forward looking and had no effect on cases already decided.
Appeal dismissed, Appellant to bear costs of the Appeal.
Kenya Law
Case Updates Issue 040/2018
Case Summaries

CIVIL PRACTICE AND PROCEDURE Supreme Court grants stay of execution of the judgment nullifying the Kilgoris Member of National Assembly elections pending hearing and determination of an appeal challenging the said judgment

Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR
Civil Application No. 26 of 2018
Supreme Court of Kenya
M K Ibrahim,J B Ojwang,S C Wanjala, N S Ndungu & I Lenaola, SCJJ
September 7, 2018.
Reported by Kakai Toili

Download the Decision

Civil Practice and Procedure–affidavits-essentials of a valid affidavit- dating, signing and commissioning of an affidavit-failure to date, sign and commission an affidavit- what was the effect of failing to date, sign and commission an affidavit-Oaths and Statutory Declarations Act, sections 5 & 8
Civil Practice and Procedure-applications-unopposed applications- effect of-what was the duty of a court in determining an unopposed application and whether a court could automatically grant orders sought where an application was unopposed

Brief facts:
Following the General Elections of August 8, 2017, the Applicant was declared duly elected Member of the National Assembly for Kilgoris Constituency. Aggrieved by the declaration, the 1st Respondent filed an Election Petition at the High Court challenging it. Upon consideration of the Petition, the High Court, dismissed it in its entirety and condemned the 3rd Respondent to pay costs for both the Petitioner and 1st Respondent.
The 1st Respondent aggrieved by the High Court decision preferred an Appeal to the Court of Appeal while the 2nd and 3rd Respondents filed a Cross-Appeal against the High Court’s decision condemning the 3rd Respondent, IEBC, to pay costs. The Court of Appeal allowed the Appeal and dismissed the Cross-appeal. Aggrieved by the Court of Appeal’s decision the Applicant filed an appeal challenging the decision and the instant Application seeking orders that the Court of Appeal’s orders be stayed pending the determination of the Appeal.

Issues:

  1. What was the effect of failing to date, sign and commission an affidavit?
  2. What was the duty of a court in determining an unopposed application and whether a court could automatically grant orders sought where an application was unopposed. Read More..

Relevant Provisions of the Law
Oaths and Statutory Declarations Act, Cap 15 Laws of Kenya.
Section 5
Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.

Section 8
A magistrate or commissioner for oaths may take the declaration of any person voluntarily making and subscribing it before him in the form in the Schedule.

Held :

  1. The making of affidavits was governed by the Oaths and Statutory Declarations Act. An Affidavit had to clearly state the place and date where it was made and it had to be made before a Magistrate or a Commissioner for oaths. The Replying Affidavit filed by the 1st Respondent was fatally defective as the same contravened all the legal requirements for the making of an affidavit, hence it had no legal value in the instant matter. All the eight copies of the Replying Affidavit as filed in the Court Registry were not signed, commissioned and dated. Consequently, as the same was defective, it was deemed that there was no Replying Affidavit on record filed by the 1st Respondent.
  2. A Replying Affidavit was the principal document wherein a Respondent’s reply was set and the basis of any submissions and/or List of Authorities that could be subsequently filed. In the absence of the Replying Affidavit, the Written Submissions filed by the 1st Respondent on August 17, 2018 were of no effect. Curiously, even the said Written Submissions were not dated, though that possibly could not have been fatal had the foundational document, the Replying Affidavit, been in order. From a perusal of the Written Submissions, it was clear that they were substantially based and relied on the undated and unsworn Replying Affidavit.
  3. There were no Grounds of Objection raising any specific points of law of any preliminary or jurisdictional nature. As the 2nd and 3rd Respondents had categorically stated that they did not oppose the Application, the Court would be excused for therefore deeming the Application as being unopposed entirely.
  4. The Court had a duty in principle to look at what the Application was about and what it sought. It was not automatic that for any unopposed application, the Court would as a matter of cause grant the sought orders. It behooved the Court to be satisfied that prima facie, with no objection, the application was meritorious and the prayers could be granted. The Court was under a duty to look at the Application and without making any inferences on facts point out any points of law, such as any jurisdictional impediment, which could render the Application a non-starter. There was no such jurisdictional issue in the instant Application. Hence the Court proceeded to consider the facts as against the jurisprudence for grant of stay orders set by the Court.
  5. The Applicant demonstrated that he had an arguable case, particularly whether his election could be nullified on a singular ground that there was a violation of article 86(a) of the Constitution by virtue of criminal diversion of ballot boxes from one polling station, when those votes were not factored in in the final declaration of results.
  6. If the orders sought were not granted the Appeal would be rendered nugatory. The workload of the Court was not a legal basis for grant of any conservatory orders. The instant Application met the threshold for grant of stay orders.

Application allowed

  1. Notice of motion application dated August 8, 2018 allowed.
  2. Execution of the judgment of the Court of Appeal delivered on July 31, 2018 in Election Petition Appeal No. 11 of 2018 at Nairobi and the Order derived therefrom stayed pending the hearing and determination of the Appeal.
  3. A conservatory order issued restraining the 3rd Respondent, Independent Electoral and Boundaries Commission, from announcing, gazetting or conducting fresh elections in Kilgoris Constituency for a Member of the National Assembly pending the hearing and determination of the Appeal.
  4. A conservatory order issued restraining the Speaker of the National Assembly from giving notice to the 3rd Respondent, Independent Electoral and Boundaries Commission, of the occurrence of the vacancy in Kilgoris Constituency for Member of the National Assembly pending the hearing and determination of the Appeal.
  5. Costs of the Application to abide the Appeal.
STATUTES Kissing and indecently touching another person against his/her will is not an offence under section 2 of the Sexual Offences Act

John Kimani Njoroge v Republic
Criminal Appeal Number 183 of 2014
High Court at Nairobi
G W Ngenye-Macharia, J
July 18, 2018
Reported by Ian Kiptoo

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Statutes-interpretation of statutes-interpretation of section 2(1) of the Sexual Offences Act-definition of an offence that amounted to an indecent act-where an accused was convicted for kissing and holding a minor-claim that the evidence adduced did not disclose an offence-whether an accused person could be convicted of an indecent act that was not defined in the Sexual Offences Act-Sexual Offences Act, sections 2(1) and 11

Brief Facts:
The Appellant was charged with the offence of indecent act with a child contrary to section 11(1) of the Sexual Offences Act. He was charged with intentionally and unlawfully kissing on the mouth and holding the waist of M M, a child aged 13 years, with his hands. He was found guilty, convicted and sentenced to 10 years imprisonment.
The Appellant’s grounds for appeal was that; the Trial Court erred by introducing a new definition of what constituted an indecent act; that the definition was not founded in law; that the Trial Court erred in failing to appreciate and find that the particulars of the charge did not support the offence in question.

Issue:

  1. Whether an accused person could be convicted of an indecent act that was not defined in the Sexual Offences Act. Read More...

Relevant Provisions of the Law
Sexual Offences Act
Section 2(1)
Indecent act” means any unlawful intentional act which causes:

a) Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration;
b) Exposure or display of any pornographic material to any person against his or her will.”

Section 11(1)
“Any person who commits an indecent act with a child is liable upon conviction to imprisonment for a term of not less than ten years.”

Held:

  1. What was in issue before the Court was whether the evidence that was adduced disclosed the offence charged. The Hilda Atieno v Republic [2016] eKLR and Zachariah Otieno Charles v Republic [2011] eKLR casescould be distinguished from the instant appeal in that both cases the Appellants had been charged under section 27(1)(b)(4) of the Alcoholic Drinks Control Act, 2010 and section 8(2) of the Sexual Offences Act respectively which provisions, as was argued, provided for penalties as opposed to defining the offences.
  2. What constituted the offence of an indecent act was found at section 2(1) of the Sexual Offences Act. In the instant case, the evidence adduced in court according to PW2 was that the Appellant held her by her waist, pulled her towards him and kissed her on the lips. Under the provision, an offence was constituted if the contact was between any part of the body with the genital organs, breasts and buttocks of another person or (unwilling) exposure or display of any pornographic material.
  3. The Complainant was categorical that the Appellant only kissed her. There entirely lacked evidence that he touched her genital organ or buttocks or breasts with any of his body parts. No doubt the evidence did not disclose the offence charged. It was a case that ought not to have been filed.
  4. It was unfortunate that the Act did not provide for offences occasioned by when a person indecently touched another person against his/her will or other parts of the body other than those provided under section 2. Probably it was the ripe time that such offences were provided as they offended the decency of a woman or a man.
  5. The duty of the Court was to do justice to the law. In as much as the complainant was offended by the acts of the Appellant, the law as it was handed a total blow to the evidence adduced. Thus, the case was not proved beyond a reasonable doubt.

Conviction quashed, sentence set aside and the Appellant to be set free unless lawfully held.

CONSTITUTIONAL LAW Section 15(2) of the Judicial Service Act is not unconstitutional for failing to provide that nominations and appointment of members to the JSC would have to be done in an open, competitive and transparent process.

Katiba Institute v Attorney General & 9 others
Petition No 84 of 2018
High Court at Nairobi
E C Mwita, J
July 6, 2018
Reported by Beryl A Ikamari

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Constitutional Law-interpretation of constitutional provisions-principles applicable to constitutional interpretation-the proper approach to constitutional interpretation-Constitution of Kenya 2010, article 259(1).
Constitutional Law-constitutional commission-Judicial Service Commission (JSC)-nomination and appointment of members to serve in the JSC-nomination of a person to represent the Public Service Commission in the JSC by the Public Service Commission and nomination of a woman and a man by the President to represent the public in the JSC-whether the process of undertaking such nominations and appointments would have to be competitive, open and transparent-Constitution of Kenya 2010, articles 171(2)(g), 171(2)(h), 250 & 248(1).
Statutes-constitutionality of statutory provisions-constitutionality of section 15(2)(a) of the Judicial Service Act-whether section 15(2)(a) of the Judicial Service Act was unconstitutional on grounds of not providing for the manner in which nominations and appointment of members to the JSC should be done and not providing that the nominations and appointments should be done in a competitive, open and transparent manner-Constitution of Kenya 2010, article 171(2); Judicial Service Act, No 1 of 2011, section 15(2)(a).

Brief facts:
On February 13, 2018, the President nominated three persons as Commissioners to the Judicial Service Commission (JSC) and their names were forwarded to the National Assembly for approval. The 2nd Interested Party was nominated as a representative of the Public Service Commission pursuant to article 171(2)(g) of the Constitution. The 3rd and 4th Interested Parties were nominated to represent the public under article 171(2)(h) of the Constitution.
The Petitioner contended that the identification and nomination of the 2nd, 3rd and 4th Interested Parties was bereft of fair competition or merit contrary to article 232(1)(g) of the Constitution and was done without public participation. The Petitioner also stated that it was the role of the Public Service Commission and not the President to nominate the 2nd Interested Party.
The Petitioner challenged the constitutional validity section 15(2) of the Judicial Service Act, 2011, for failing to provide for the manner of identification and qualifications for appointment of the persons contemplated under article 171(2)(g) and 171(2)(h) of the Constitution. It argued that the impugned appointments negatively impacted on judicial independence and the proper functioning of the Judicial Service Commission.

Issues:

  1. What were the principles applicable to constitutional interpretation?
  2. Whether the 2nd, 3rd and 4th Interested Parties were appointed and approved in accordance with the Constitution and the law.
  3. Whether section 15(2) of the Judicial Service Act, which dealt with the nomination of members to the JSC, was unconstitutional for failing to provide for the nominations to be done in an open, transparent and competitive process. Read More..

Held:

  1. Article 259(1) of the Constitution provided that the Constitution shall be interpreted in a manner that promoted its purposes, values and principles, advanced the rule of law, human rights and fundamental freedoms in the Bill of Rights, permitted the development of the law and contributed to good governance. The Constitution should not be given a narrow or simplistic interpretation.
  2. The Constitution, as a living instrument should not be given a rigged or artificial interpretation to avoid distorting the spirit, ideals and aspirations of the people. A Constitution should also be interpreted in a broad and flexible manner in order to achieve its purposes and principles.
  3. Although the Constitution had several provisions, it was one indivisible document that had to be given a holistic interpretation, reading one provision of the Constitution alongside others so that provisions would be read as supporting and not destroying one another.
  4. Article 171(2)(g) required the Public Service Commission to nominate a representative to JSC. Although there were allegations that the 2nd Interested Party was nominated by the President and not the Public Service Commission, evidence from the Public Service Commission (PSC) showed that he was nominated through internal meetings and a resolution. They then forwarded the 2nd Interested Party's name to the President and thereafter the National Assembly for approval. Therefore, the 2nd Interested Party was nominated by the Public Service Commission.
  5. Article 171(2)(g) of the Constitution did not require competition as suggested by the Petitioner. The article was self- executing and had to be understood as such.
  6. After the Public Service Commission nominated him, the 2nd Interested Party's name was forwarded to the office of the President as required under section 15(2)(a) of the Judicial Service Act. Under article 171(2) of the Constitution, there was no requirement for the nominee of the Public Service Commission to the JSC to be approved by the National Assembly. However the approval of the National Assembly was required for the one man and one woman, not being lawyers, appointed by the President to represent the public.
  7. Article 250(1) of the Constitution provided that each commission shall consist of at least three but not more than nine members, the Chairperson, members of the Commission and holders of independent offices shall be identified and recommended for appointment as prescribed by national legislation, approved by the National Assembly and appointed by the President. To be appointed, one had to have the qualifications specified in the Constitution and national legislation.
  8. Article 250 of the Constitution was a general provision dealing with Commissions and independent offices generally. It was applicable unless the Constitution provided otherwise. A reading of article 248(1) of the Constitution indicated that article 171 of the Constitution was an exception to article 250 and, therefore, the stated article 171 applied exclusively to the appointment of the 2nd Interested Party.
  9. Article 171(2)(h) of the Constitution gave the President discretion to nominate a woman and a man who were not lawyers, to represent the public subject to the approval of the National Assembly. The provision did not place conditions on how the appointment was to be done.
  10. The people, and by extension the framers of the Constitution, expected the President to act in good faith and in the best interest of the public when making appointments; to consider merit and national values and principles including integrity, national diversity and above all suitability to serve in JSC. Open and competitive nomination was not a requirement under article 171(2)(h) of the Constitution.
  11. The National Assembly had a constitutional obligation to ensure that there was public participation in the case of the appointment of the woman and the man who were to represent the public. The relevant Committee of the National Assembly invited public views on the two Presidential nominees. The National Assembly not only facilitated but also conducted public participation during the approval process of the 3rd and 4th Interested Parties.
  12. The integrity issue raised against the 4th Interested Party was that he was a politician who should not serve as a member of the JSC. There was evidence that the 4th Interested Party served as a Cabinet Secretary but there was no evidence that he was a politician. Without evidence, it was difficult for the Court to conclude that the 4th Interested Party was a politician who should not serve in the JSC.
  13. Against the appointment of the 3rd Interested Party three memoranda were received. Only one was accepted as the other two were rejected for failure to comply with procedural requirements. The accepted memorandum made allegations against the 3rd Interested Party relating to nepotism, tribalism, mismanagement of resources and the fact that there were a number of suits in court.
  14. In relation to her work and actions while working as Vice Chancellor of Kenyatta University, the 3rd Interested Party was investigated by the EACC and absolved from blame. It was not for the Court to consider the issue of the 3rd Interested Party's integrity; the National Assembly considered it and cleared her. The mandate of the Court was to check and be satisfied that the National Assembly acted in accordance with the Constitution and the law, but not to substitute the decision of the National Assembly with its own. The National Assembly did not fail to comply with the Constitution when approving the 3rd Interested Party.
  15. Where a statute or statutory provision was challenged on grounds of being inconsistent with the Constitution, the statute or the statutory provision concerned would be laid alongside the article of the Constitution said to be violated and thereafter the Court would determine whether indeed there was inconsistency. The Court would also consider whether the purpose of enacting the statute or the effect of implementing the statute was unconstitutional. That could lead to a declaration of constitutional invalidity.
  16. Section 15(2) of the Judicial Service Act had its constitutionality challenged on grounds that it failed to provide for open, transparent, and merit based nomination of members to the Judicial Service Commission. Article 171(2) (g) of the Constitution required the Public Service Commission to nominate its representative to JSC but it did not provide for how that should be done. Similarly, the Judicial Service Act was silent on the procedure for identifying the nominee. The nominating body was free to use its internal mechanism or process to arrive at its nominee.
  17. Article 10 of the Constitution provided for transparency and accountability in public affairs as well as public participation in public appointments. However, not in every public appointment required open recruitment. In the case of the person contemplated under article 171(2)(g) of the Constitution, the Constitution gave the mandate to the Public Service Commission to nominate or designate a person to represent it in JSC. The Constitution left the discretion to the Public Service Commission to decide on whom to nominate. A reading of article 171(2)(g) and section 15(2) of the Judicial Service Act, did not show any inconsistency in so far as nomination of its representative to JSC was concerned.
  18. Nominations by the President under article 171(2)(h) were discretionary and the Court could only interfere where the discretion was not exercised properly. There was no constitutional inconsistency based on the fact that section 15(2) of the Judicial Service Act failed to provide for an open and transparent manner of appointing members to represent the public in the JSC.

Orders:-

  1. A declaration was issued to the effect that there was no requirement for approval of the 2nd Interested Party, the nominee of Public Service Commission under article 171(2)(g) of the Constitution; and the approval by the National Assembly made in that regard was of no legal effect.
  2. The rest of the petition was, however, dismissed with no order as to costs.
SUCCESSION LAW Children born within 280 days after the separation of a husband and wife are legitimate children and are beneficiaries to the estate of their deceased parents

Ngengi Muigai and another v Peter Nyoike Muigai and 4 others
Civil Appeal No. 13 & 56 of 2007 consolidated with
Court of Appeal at Nairobi
P N Waki, P O Kiage, K M'inoti, JJA
June 8, 2018
Reported by Felix Okiri

Download the Decision

Succession Law-validity of a will-attestation of a will-attestation by witnesses-claim that a will ought to be attested by two or more witnesses at the same time-whether a will made by a testator was invalid if a testator’s signature was not acknowledged in the presence of two or more witnesses at the same time-Law of Succession Act, section 11; Halsbury’s Laws of England Vol. 50, paragraph 261
Succession Law-validity of a will-testamentary freedom-where a will was drawn in the 1st born son’s house-claim that the will was as a result of undue influence- whether a will made in the home of a testator relative was invalid as it may have been made through undue influence-Law of succession Act
Evidence Law-presumption of legitimacy -proof of legitimacy-where children were born after a man and wife separated-whether the 1st Appellant and 1st Respondent were children of the deceased, as they were born after the deceased and his first wife had separated -Evidence Act, section 118; Law of succession Act, section 3(2), 26 and 29(a)

Brief facts:
The Trial Court held that the deceased had the mental and physical capacity to make a valid Will. The Trial Court also found that the 2nd Respondent who was a former wife, was a proper beneficiary; that the 5th Respondent was born within two hundred and eighty days after separation of the mother and father in circumstances covered by section 118 of the Evidence Act and would therefore be a dependant. The trial court proceeded to make reasonable provisions for the dependants left out in the will.
Those findings of the Trial Court precipitated the instant appeal where Appellants impugned the Trial Court decision for disregarding evidence and erroneously finding that the 2nd Respondent and 5th Respondent were dependants of the deceased and were therefore entitled to the deceased's estate.

Issues:

  1. Whether a will made by a testator was invalid if a testator’s signature was not acknowledged in the presence of two or more witnesses at the same time.
  2. Whether a will made in the home of a testators relative was invalid as it may have been made through undue influence.
  3. Whether children born within 280 days after the separation of a husband and wife were legitimate children and were beneficiaries to the estate of their deceased parents.Read More..

Relevant Provisions of the Law
Law of Succession Act
Section 5(1)
"...Any person may dispose of all or any of his property in a manner he deems fit and a testator may change his mind at any time before his death as to how he intends that his property should be disposed of."

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.

section 29
"(a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
(b) such of the deceased's parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and
(c)Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

Evidence Act
Section 118
“The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten”.

Halsbury’s Laws of England Vol. 50
Paragraph 261
'The testator’s signature must be made or acknowledged by him in the presence of two or more witnesses present at the same time. In the testators presence, each witness must attest and sign the will.’

Held:

  1. The formal requirements of a valid will were provided for in section 11 of the Law of Succession Act (LSA). The Trial Court had examined the evidence of the two witnesses on attestation and was satisfied that although the two may not have been present at the same time with the deceased as he signed the will, the provisions of section 11(c) allowed the witnessing of a will by the two witnesses at different times provided each signed in the presence of the testator when the testator acknowledged his signature. In view of the statutory provision, the doctrine propounded in Halsbury's Laws that the testator’s signature had to be made or acknowledged by him in the presence of two or more witnesses present at the same time was found to be of doubtful application in Kenya.
  2. An examination of the impugned will which was produced in evidence proved that the will was in compliance with section 11 of the LSA.
  3. Testamentary freedom under section 5(1) of LSA was not absolute since, the will might be declared void if the making of it was caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, or has been induced by mistake. However, there was nothing unusual for an African 1st born son to take into residence and care for his aging father. It was not only good manners but also accorded with custom. There was also no evidence that other members of the deceased's family sought to, but were prevented from visiting the deceased in the Appellant’s house as often as they chose to.
  4. The Deceased and his first wife parted company in June, 1942 and she went to live with her parents. The 1st Appellant was born on February 10, 1943. There was no evidence that the Deceased’s first wife remarried after leaving the Deceased. The 5th Respondent was born within 8 months or about 240 days after the departure of the deceased’s first wife. The 5th Respondent, having been born within 280 days of the separation of his parents, was the child of the Deceased.
  5. The testamentary freedom under section 5(1) of LSA was checked by section 26 of LSA which ensured that some beneficiaries of the estate referred to as dependants who were not adequately provided for by will or intestacy were catered for. The meaning of such persons was in section 29 of the LSA Act.
  6. A child as defined under section 3(2) of LSA, was, a biological child as well as any child whom a man had expressly recognized or accepted as a child of his own or for whom he had voluntarily assumed permanent responsibility was to be an automatic dependant under section 29(a). The 1st Appellant, whom was found to have been a biological son, although the Deceased had not expressly recognized him as such, was entitled to automatic reasonable provision. The 1st Respondent, on the other hand, would also have been entitled to reasonable dependency provision if he could prove that the Deceased had taken him into the family as his own child and was maintaining him immediately prior to his death. However, there was no evidence that the 1st Respondent was financially or otherwise supported by the Deceased immediately before his death to warrant a positive finding on dependency.

Appeal No. 13 of 2007 partly allowed and Appeal No. 56 of 2007 dismissed
Orders

  1. The orders granted by the Trial Court in the 1st Respondent’s favour were set aside in entirety.
  2. The fact that the life interest of the 2nd Respondent was spent, the acreage of the Ichaweri Farm in Gatundu LR No. 7785/18, would vest in the 1st Appellant only but would be reduced from 10 to 5 acres.
  3. The order for the Runda house to vest in the 1st Appellant would remain.

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