Weekly Newsletter 020/2019



Kenya Law

Weekly Newsletter


Medical tests and examination of an accused person to establish involvement in a sexual offence was only applicable to sexual offences under the Sexual Offences Act
COI & another v Chief Magistrate Ukunda Law Courts & 4 others [2018] eKLR
Civil Appeal 56 OF 2016
Court of Appeal at Mombasa
AVisram, W Karanja & M K Koome, JJA
March 22, 2018
Reported by Amina Yunus
Download the Decision

 

Constitutional Law fundamental rights and freedoms - right to privacy - medical examinations issued against an accused person to prove an unnatural offence - whether subjecting an accused person charged with unnatural offence under the Penal Code to anal examinations and other medical examinations was a violation of the accused person’s right to privacy – Constitution of Kenya, 2010 article 31; Penal Code section 162(a)

Constitutional Lawfundamental rights and freedoms - right to human dignity - medical examinations issued against an accused person to prove an unnatural offence - whether subjecting an accused person charged with unnatural offence under the Penal Code to anal examinations and other medical examinations was a violation of the accused person’s right to human dignity – Constitution of Kenya, 2010 articles 20(4)(a), 24 & 28; Penal Code section 162(a)

Criminal Law sexual offences –power to order for medical examinations on the accused person to prove a sexual offence - whether the power of the Court to direct examination of an accused person to establish his involvement in a sexual offence under the Sexual Offences Act could be extended to the sexual offences prescribed in the Penal Code or any other law that prescribed a sexual offence - Sexual Offences Act section 36(1) & 36(6)(a)-; Penal Code section 162(a)

Brief facts:

The appellants were arrested in a bar in Diani as they were ordering their drinks on suspicion of engaging in gay activities as well as distributing pornographic material. They were arraigned in court and the prosecution applied for the deferment of the appellants’ plea taking to pave way for further investigations. An order compelling the appellants to undergo necessary medical tests was also sought. The appellants were presented at Makadara General Hospital where blood samples were taken for purposes of HIV and Hepatitis B testing. They were also subjected to anal examination in line with the subordinate court’s orders. The results derived from the examination, were admitted by the subordinate court.
The appellants first appealed to the high court seeking declarations that the examinations they were subjected to violated their rights to human dignity, privacy and fair trial. The High Court upheld the decision of the Subordinate Court leading to the instant appeal to the Court of Appeal.


Issues:

  1. Whether subjecting an accused person charged with unnatural offence under section 162(a) of the Penal Code to anal examinations and other medical examinations was a violation of the accused person’s right to human dignity and right to privacy.
  2. Whether the power of the Court to direct examination of an accused person to establish his involvement in a sexual offence under section 36(1) & 36(6)(a) of the Sexual Offences Act could be extended to the sexual offences prescribed in the Penal Code or any other law that prescribed a sexual offence.
  3. Whether consenting to an illegal order of the Court validated the illegal order.
  4. What were the principles applicable in granting constitutional reliefs?


Relevant provisions of the law
Constitution of Kenya 2010
Article 24(1)

A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.
 

Penal Code, Cap 63
Section 162(a)
Unnatural offences

Any person who—

(a) has carnal knowledge of any person against the order of nature; or
(b) has carnal knowledge of an animal; or
(c)permits a male person to have carnal knowledge of him or her against the order of nature,
is guilty of a felony and is liable to imprisonment for fourteen years:

Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for twenty-one years if—

(i) the offence was committed without the consent of the person who was carnally known; or
(ii) the offence was committed with that person’s consent but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act.

Sexual Offences Act
Section 36 (1)

Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence
 

Sub-section (6) (a)

blood, urine or other tissue or substance as may be determined by the medical practitioner or designated person concerned, in such quantity as is reasonably necessary for the purpose of gathering evidence in ascertaining whether or not the accused person committed an offence or not;


Held

  1. The purpose of recognizing and protecting human rights and fundamental freedoms was to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings. The same was echoed in both the International Covenant on Civil, Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the African Charter on Human and People’s Rights (ACHPR)_which recognized that human beings had inherent dignity.
  2. Regardless of one’s status or position or mental or physical condition, one was, by virtue of being human, worthy of having their dignity or worth respected.
  3. The right to privacy particularly, not to have one’s privacy invaded by an unlawful search of the person, was closely linked to the right to dignity. Those rights extended to a person not being compelled to undergo a medical examination.
  4. The rights and freedoms under the Bill of Rights, subject to article 25, could be limited under article 24 by written law and to the extent that was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Such a limitation, at least to the extent of compelled medical examination, was evident from the provisions of section 36 (1) and 36 (6)(a) of the Sexual Offences Act which provided that samples from a person accused of committing an offence under the Act could be directed to provide medical samples.
  5. Whereas a court was empowered to direct examination of an accused person to establish his involvement in a sexual offence, such discretion was subject to limitation. The Court could only issue such an order with respect to an offence committed under the Sexual Offences Act and not any other. Further, in exercising that discretion, like any other discretion, the Court was required to act judiciously within the confines of the law.
  6. The purpose of the medical tests and examination in the instant case were geared towards establishing the offence under section 162(a) of the Penal Code. The appellants were not arrested in the act, there was no complainant, there was actually no reasonable explanation as to why they were suspected of having committed the offence. There was no proper basis laid before the court to necessitate the impugned order being made. The Subordinate Court acted beyond its mandate in granting the order in issue contrary to article 24 of the Constitution.
  7. Whether or not the appellants, by themselves or through their counsel, consented to the examination was neither here nor there. Such consent could not validate an otherwise illegal order. The examination was not only unconstitutional but unreasonable, and totally unnecessary. The alleged consent could not qualify as one which was given voluntarily by the appellants taking into account the pertaining circumstances.
  8. Under the Constitution pre-hearing investigations could not be unconstitutional unless they purported to obtain evidence in an unlawful manner or they infringed on the rule against self-incrimination or violated the right of silence or because of the manner they had been conducted they seriously eroded the presumption of innocence if and when the suspect was charged. Such evidence should be expunged from the proceedings.
  9. The appellants neither pleaded nor sought any declaratory orders or damages in respect of the alleged violations in the petition. The primary purpose of pleadings was to communicate with an appreciable degree of certainty and clarity the complaints that a pleader brought before the Court and to serve as sufficient notice to the party impleaded to enable him to know what case to answer.
  10. The primary object of constitutional relief was not compensatory but to vindicate the fundamental rights infringement and to deter their future infringement. The test was not what would alleviate the hurt which plaintiff contended for but what was appropriate relief required to protect the rights that had been infringed. Public policy considerations also played a significant role. It was not only the plaintiff's interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.
  11. A remedy in a Constitutional violation case was just and appropriate if it
    1. meaningfully vindicated the rights and freedoms of the claimants;
    2. employed means that were legitimate within the framework of constitutional democracy; be a judicial remedy which vindicated the right while invoking the function and powers of a court; and be fair to the party against whom the order was made.

Appeal allowed
Orders
  1. The judgment and decree given on June 16, 2016 was hereby set aside.
  2. An order that the respondents’ conduct in subjecting the petitioners to anal examinations violated the Petitioners’ rights under articles 25, 27, 28 and 29 of the Constitution.
  3. An order that the use of evidence obtained through anal examinations of the petitioners in criminal proceedings against them violated their rights under article 50 of the Constitution.
  4. Costs of the appeal awarded to the appellants against the 4th respondent.
Kenya Law
Case Updates Issue 020/2019
Case Summaries

CIVIL PROCEDURE AND PRACTICE The High Court can review its own decision emanating from a challenge of an arbitrator on merits where the Arbitration Act and its Rules are silent on the question of review.

Goodison Sixty-One School Limited v Symbion Kenya Limited
Miscellaneous Civil Cause 131 of 2016
High Court at Nairobi
R Mwongo, J
May 2, 2017
Reported by Mathenge Mukundi

Download the Decision

Civil Procedure and Practice-review-application for review of the High Court’s decision emanating from a challenge of an arbitrator-apparent errors on the face of the record-whether the High Court could review its ruling emanating from a challenge of an arbitrator where there was a lacuna in law-whether the High Court could apply Civil Procedure Act and its Rules to review a challenge of an arbitrator, where Arbitration Act and its Rules did not have a provision that allowed a review.

Brief facts:
The parties were in dispute in relation to the construction of a school which was being developed by the applicant and the respondent was the architect. Pursuant to an arbitration agreement between the parties the dispute was referred to arbitration before a sole arbitrator. The applicant had filed a challenge before the arbitrator seeking his disqualification on the grounds that he failed to disclose circumstances that were likely to give rise to justifiable doubts as to his impartiality or independence.
The arbitrator dismissed the applicant’s challenge stating that he was properly in office and published his final award and costs of award ultimately concluding the arbitration. Aggrieved by the arbitrator decision the applicant approached the High Court to have the arbitrator being removed from the office and the arbitral proceedings and the award be declared a nullity. The application was dismissed which led the applicant to seek for a review of the High Court’s decision.

Issues:

  1. Whether the High Court could review its ruling emanating from a challenge of an arbitrator where section 14 of the Arbitration Act was silent on the question of review.
  2. Whether the High Court would apply the Civil Procedure Act and its Rules to review a challenge of an arbitrator, where Arbitration Act and its Rules did not have a provision that allowed a review.Read More..

Held :

  1. On the essence of arbitration, it was debatable whether the court’s decision in the case under section 14 of the Arbitration Act could be plausibly reviewed. The applicant’s reliance on articles 50, 159 and 165 of the Constitution to achieve a review, was untenable as there was nothing in them to suggest that they were intended to promote arbitration outside of its fundamental character and essence. Section 14 of the Arbitration Act was silent on the question of review, the applicant suggested that the Civil Procedure Act and Rules had to be necessarily applicable for justice to prevail. In that regard, the applicant invoked the court’s inherent jurisdiction under Section 3A of the Civil Procedure Act.
  2. The provisions for review were in section 80 of the Civil Procedure Act which the applicant cited, and order 45 rule 1 of the Civil Procedure Rules which the applicant did not expressly cite. The question that arose was whether, in the absence of any review provision in the Arbitration Act, the Civil Procedure Act and Rules would apply. Section 14(6) of the Arbitration Act prohibited an appeal from a decision of the High Court on a challenge to the arbitrator. The applicant instead invoked the review provision in section 80(b) of the Civil Procedure Act, which stated that any person who considered himself aggrieved by a decree or order from which an appeal was allowed, but from which no appeal had been preferred; or by a decree or order from which no appeal was allowed, might apply for review of judgment to the court which passed the decree or made the order, and the court would make such order thereon as it thought fit.
  3. The review requested where no appeal was allowed by the Civil Procedure Act. It had a provision in section 75 touching on appeals from orders in, inter alia, court-annexed arbitration, but nothing was stated there concerning appeals in respect of consensual arbitration. Section 66 of the Civil Procedure Act stated that, except where otherwise expressly provided in the Act, and subject to such provision as to the furnishing of security as it would be prescribed, an appeal should lie from the decrees or any part of decrees and from the orders of the High Court to the Court of Appeal.
  4. All decrees and orders of the High Court were subject to the appellate jurisdiction of the Court of Appeal, except where the Civil Procedure Act itself so prohibited. The instances where the prohibition was made in the Civil Procedure Act were set out in it and did not include decrees or orders made in respect of consensual arbitration. So, clearly, an appeal in respect of section 14 of the Arbitration Act would, but for the prohibition contained in section 14(6) of the Arbitration Act, be allowed by the Civil Procedure Act.
  5. The Arbitration Rules disclosed that they made a provision for applications to court under the Arbitration Act in respect of sections 6 and 7 (rule 2); under sections 12, 15,17, 18, 28 and 39 (rule 3); under section 35 (rules 6 & 7); and under section 36 (rule 9). However, there were no Rules provided under the Act for court proceedings in respect of section 14 which was the provision that brought the applicant to court – section 16A, section 28, and section 32B of the Act. That was an error of omission in the Rules, to which attention should be drawn to the Chief Justice for rectification. Since the Arbitration Rules did not provide for the proceedings under section 14 of the Act, the Civil Procedure Rules were inappropriate for application to section 14 of the Act. That left the court in a quagmire regarding the applicable procedure for section 14 of the Act applications challenging the mandate of the arbitrator as to his impartiality and independence, or as to the composition of the tribunal. Under section 14(6) of the Arbitration Act the court’s decision on such matters were final and not subject to appeal.
  6. The review provisions under section 80 of the Civil Procedure Act and under order 45 of the Civil Procedure Rules could not be applied for a review in respect of the court’s decision under section 14 of the Arbitration Act.
  7. For the interests of justice, the review should be considered on its merits. On the perusal of the application which was before the judge, the arbitrator’s said letter was not part of that application. As such, the judge would not have a way of knowing that the arbitrator had an opportunity to elect whether or not to participate in the challenge proceedings. Section 14(4) of the Arbitration Act entitled the arbitrator to be given an opportunity to be heard and it was for the applicant to plead or point out as much since the judge could not ignore the statutory provision. The failure of the applicant to provide that letter or information on it at the hearing before the judge did not satisfy the test for review in terms of order 45, rule 1 of the Civil Procedure Rules, as that did not constitute new evidence which was not available to the applicant at the time of making the application.
  8. The application survived the arbitrator’s final award and the coming into effect of the award would have to await the determination of that application. In that sense, if the application was successful, the award would be void. Hence, that was a ground of appeal and not for a review, as it was not a mistake or an error on the face of the record within the purview of order 45, rule 1 of the Civil Procedure Rules. The error or omission had to be self-evident and should not require elaborate argument to be established. It would not be a sufficient ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law could not be a ground for review.
  9. The law stated that a final award terminated the arbitral proceedings as provided in section 32A of the Arbitration Act. Once the award was delivered the arbitrator became functus officio. Section 14(8) of the Arbitration Act suspended the coming into effect of an award if there was a pending challenge application. Notably, both positions were not mutually exclusive, and it was to be considered that was a matter of interpretation and was for appeal rather than for the review.

Application dismissed.

TORT LAW Consent is a requirement in a doctor-patient relationship even where the patient is a medical physician

BS v Jonardan D Patel
Civil Case 492 of 2003
High Court at Nairobi
L Njuguna, J
March 4, 2019
Reported by Ian Kiptoo

Download the Decision

Tort Law-negligence-medical negligence-standard and duty of care of medical physicians-skill and knowledge of medical physicians-difference in medical opinions-where a patient was referred to by another doctor-what were the circumstances were a doctor could be said to have acted negligently towards a patient-whether a difference in opinion between experts in the medical field and opinion of an attending physician signified negligence
Medical Law- doctor-patient relationship - consent-requirement of consent before surgery-where a patient was an optometrist-claim that the patient had knowledge in the medical field-what amounts to consent-what amounts to consent in a doctor-patient relationship where a patient was a medical physician-whether a physician who operated on a patient, who was a physician (optometrist), needed to disclose the inherent risks of a proposed treatment to the patient
Civil Practice and Procedure-damages-award of damages in medical negligence cases-quantum of damages-what was the guiding principle in the assessment of general damages for pain and suffering

Brief facts:
The plaintiff sought general damages, special damages, costs of the suit plus interest alleging that the defendant failed to exercise skill and care resulting in total fragmentation and disruption of her internal sphincter and extensive disruption of her external sphincter.
The plaintiff averred that she consulted the defendant for an ailment which the defendant diagnosed as Fistula-in-ano and a perianal cyst. That under an oral agreement made between the parties, in consideration of the plaintiff paying the defendant’s professional charges, the defendant undertook to perform surgery on the plaintiff assuring her that such surgery would cure her of her ailment; that despite the said surgery and the assurances, the same problem recurred and the defendant undertook a further surgery on her. Further, that in breach of the said agreement and of the duty of care to her, the defendant performed the said surgery on her so negligently and unskillfully that her condition worsened.
On the other hand, the defendant contended that the surgery complained of was done with utmost professional care and skill.

Issues:

  1. What were the circumstances were a doctor could be said to have acted negligently towards a patient?
  2. Whether a difference in opinion between experts in the medical field and opinion of an attending physician signified negligence.
  3. What amounts to consent in a doctor-patient relationship where a patient was a medical physician?
  4. Whether a physician who operated on a patient, who was a physician (optometrist), needed to disclose the inherent risks of a proposed treatment to the patient.
  5. What was the guiding principle in the assessment of general damages for pain and suffering? Read More..

Held :

  1. It was not denied that the plaintiff and the defendant had a patient-doctor relationship. The defendant admitted that the plaintiff was referred following which he carried out surgeries on her in the year 2000 and 2001. It therefore followed that a duty of care arose once he agreed to diagnose and treat the plaintiff. It was necessary to set out the findings and analysis by the different doctors as it would assist the Court in its analysis of whether the defendant breached the duty of care owed to the plaintiff.
  2. A doctor owed a patient a duty to exercise reasonable care and skill. If a doctor did not act with reasonable care and skill in dealing with a patient, that would be negligence. The nature of that duty and the test for its breach had received extensive and authoritative judicial and academic commentary over the years.
  3. A doctor could only be held guilty of medical negligence when he failed short of the standard of reasonable medical care and not because in a matter of opinion, he made an error of judgment. For negligence to arise there had to have been a breach of duty and breach of duty must have been the direct or proximate cause of the loss, injury or damage. Proximate meant a cause which in a natural and continuous chain, unbroken by any intervening event produced injury and without which injury would not have occurred. The breach of duty was one equal to the level of a reasonable and competent health worker.
  4. In the course of treatment, some discretion had to be left to the judgment of the doctor on the spot so that he used his common sense, his experience and judgment as far as it suited to the situation of the case. One could not be guided by what had been written in the text books because statements in the text books were mere opinions, and could not substitute for the judgment of the surgeon who handled the situation on the spot. The general practitioner should not be criticized just because some experts disagreed. It was important to view the treatment and see matters with the eyes of the attending physician.
  5. The two surgeries were carried out by the defendant. Thus, the defendant’s contention that the plaintiff was not his patient during the first surgery was rejected. Going by the medical opinions by the three doctors, the inescapable conclusion was that the plaintiff developed incontinence to gas and soft stool after the surgery that was undertaken by the defendant in March 2001.
  6. The defendant had made a diagnosis that the plaintiff was suffering from Fistula -in-ano at 7 o’clock position. Upon examination of the plaintiff, it was noted that there was clear evidence of previous surgery with scarring; both anteriorly and around about 3 o’clock. Further, that the report from the original operation suggested that the surgery had been carried out at 7 o’clock but there was no evidence of surgery in that position. The ultra sound report, plaintiff’s exhibit 6, showed that there was almost a complete fragmentation of the internal sphincter and extensive disruption of the external sphincter which were consistent with damage following stretch.
  7. The Code of professional conduct and discipline issued by the Medical Practitioners and Dentist Board of Kenya stated that, consent was the acceptance by an individual person to receive treatment from a doctor. The individual giving consent had to be mentally competent and aged 18 years, informed, free and voluntary. It mattered not that the plaintiff was an optometrist by profession.
  8. The requirement of consent was a requirement before a surgery could be undertaken and failure by the defendant to obtain the required consent from the plaintiff could not be excused. The defendant was given time by the Court to produce the consent but eventually it was never availed to court. The defendant also failed to warn the plaintiff of the risks attached to the surgery.
  9. The defendant being an expert in Anal-Rectal surgery failed to exercise a reasonable degree of skill and knowledge in the surgery that he performed on the plaintiff. There was no evidence of surgery at 7.00 o’clock. If indeed, a surgery had been done by another doctor at 9.00 o’clock before she was seen by the defendant, nothing would have been easier than for him to take note of it. He had not made such a note in his report that he produced in court and was the last person to operate on the plaintiff and could not escape liability
  10. As a result of the damage to the sphincter, the quality of her social, family and professional life had been significantly curtailed. She had lost desire for sexual act; a situation that she stated was affecting her marriage. The worsening incontinence was directly attributable to the multiple urinary tract infection she had been having. She stood a risk of developing cancer of the bladder and had lost a job directly due to her present condition. She suffered agony and embarrassment when she was at work or in a public place due to her incontinence to flatus.
  11. The nature of injuries and the resultant effect on the plaintiff’s social, family and emotional life could not be overstated. On general damages for pain, suffering and social amenities the guiding principle in the assessment of damages had been the subject of numerous authorities. Damages had to be within limits set out by decided cases and also within limits the Kenyan economy could afford. Large awards were inevitably passed on the members of the public, the vast majority of whom could not afford the burden in the form of increased costs for insurance or increased fees. Therefore, a total of Kshs.2,000,000 was reasonable compensation for general damages
  12. At the time of filing the suit, the plaintiff was 28 years earning a monthly salary of Kshs 55,000/-. PW2, a qualified optometrist, gave evidence of the monthly salary that he earned of Kshs.100, 000/. Compensation for loss of future earnings was awarded for real assessable loss proved by evidence. The plaintiff had adduced ample evidence to prove that she was earning less than what she would be earning were it not for the injuries. She was not able to work anywhere and that had limited her chances of getting a higher pay.
  13. The plaintiff was entitled to damages for future earnings. However, she was in employment and was not losing out on the whole salary but part of it and therefore, only the difference of the salary that she was earning and what her fellow optometrist was earning, PW2, could be awarded. A multiplier of 30 years was reasonable due to vicissitudes of life. The total award under the head would then be Kshs.45, 000x30x12 making a total of Kshs.16, 200,000/-.
  14. The receipts produced in court amounted to Kshs.3, 335,459 which was awarded. As to costs related to the caesarean section, no evidence was adduced in support of that and therefore none was awarded.

Claim allowed
Orders

  1. General damages – Kshs.2, 000,000/-.
  2. Loss of future earnings – Kshs 16, 200,000/-.
  3. Special damages – Kshs 148, 200/-.
  4. Cost of future surgery and Air travel – Kshs 2, 914,800.
  5. Total - Kshs 21, 535,459.
  6. The Special damages would earn interest from the date of filing of the plaint while general damages would earn interest from the date of the judgment.
CIVIL PRACTICE AND PROCEDURE Once the reputation of a party has suffered injury, no amount of recompense can form adequate compensation

Pewin Cabs Limited v David Mwere & 2 others [2019] eKLR
Civil Suit 214 of 2018
High Court at Nairobi
J.K. Sergon J
March 27, 2019
Reported by Flora Weru

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Civil practice and procedure - injunction - Interlocutory injunction- application for interlocutory injunction in a defamation suit - application by applicants to restrain the respondents from further publication of defamatory articles - applicable principles

Brief Facts:
The dispute between the applicant and respondents arose from an article published by the respondents on August 22, 2018 in relation to the International Amateur Athletic Federation (IAAF) World Under-18 Championship games hosted in Nairobi sometime in 2017. The article in general read that an audit report prepared by the Auditor General revealed a scam within the sports ministry involving Kshs. 1.7 billion and that the applicant was paid the sum of Kshs.28.3 million over and above the normal market rate. The publication prompted the applicant to institute this defamatory suit against the respondents.
The applicant filed an application seeking an interlocutory injunction against the respondents restraining them and the agents and/or employees of the 3rd defendant/respondent from further publication of the defamatory articles and any other related defamatory articles.

Issues:

  1. What were the principles applicable in an application for interlocutory injunction in a defamation suit?
  2. Whether an interlocutory injunction could issue against a publisher to stop publishing information when the publisher sourced the information from Auditor General’s Report. Read More...

Held:

  1. In determining an application for interlocutory injunctions in a defamation suit, the applicant must first establish a prima facie case with a probability of success, s/he must then demonstrate that s/he stands to suffer irreparable loss that cannot be adequately compensated through damages and where there is doubt, the balance of convenience should tilt in favour of the applicant. The granting of an interlocutory injunction could only be done in the clearest of cases.
  2. A prima facie case was taken to mean a case that was both arguable and had a likelihood of success. That should be established without necessarily delving into the merits of the suit.
  3. The statement concerning the applicant in the Auditor General’s Report was similar to that made in the newspaper article though not borrowed word-for-word. It was thus true that the allegedly defamatory statement was drawn from the said report and in fact, reference was made to the report in the publication.
  4. The constitutional freedoms of the media and expression could not exist as absolute rights. The respondents did not undertake any further investigations prior to making their publication. They did not dig further to verify the accounts given in the report as true and factual yet they were duty bound to do so. In the premises, the applicant had established a prima facie case against the respondents.
  5. It was impossible for the Court to predict or read into parties’ future intentions. To add on, as soon as the reputation of a party had suffered injury, no amount of recompense could form adequate compensation though it could offer some comfort in some instances.Once a reputation was lost, monetary damages could not be an adequate compensation. Monetary damages could be a consolation, but they would never be an adequate compensation for a lost reputation. In the eyes of the public, once a person’s reputation had been damaged it would remain in memory possibly throughout his life.
  6. The instant claim involved public funds. The public had a stake; continued publications would inevitably lower the applicant’s reputation in the eyes of right-thinking members of the society, hence the need for its safeguarding.

Application allowed; costs were to abide the outcome of the suit.

LAW OF SUCCESSION A will is valid despite being attested by witnesses who are not known to the deceased and/or deceased’s family

In re estate of Julius Mimano (Deceased) [2019] eKLR
Succession Causes Nos 417 of 2005 and 1345 of 2014
High Court at Nairobi
Family Division
W Musyoka, J
February 15, 2019
Reported by Ian Kiptoo

Download the Decision

Law of Succession-wills-validity of a will-testamentary freedom of a testator-principle of knowledge and approval-where the testator was not in a weakened physical and mental condition-claim that a will was formed under suspicious circumstances-whether a will that assigned substantial benefit to a propounder of the will to the exclusion of other beneficiaries could be said to be an invalid will-Law of Succession Act, sections 5 and 7
Law of Succession-wills-validity of a will-testamentary freedom of a testator-claim that the deceased before death made oral wishes in regards to his estate-whether oral wishes of a deceased prior to his death in regards to his/her property could override the provisions of a written will-Law of Succession Act, section 10
Law of Succession-wills-validity of a will-execution of a will-presumption of due execution-claim that signature of deceased was a forgery-where attesting witnesses were not known to the deceased and his family-whether a will was invalid if the attesting witness were not known to the deceased and/or deceased’s family- Law of Succession Act, section 11
Law of Succession-wills-validity of a will-testamentary freedom of a testator-where a will provided for a spouse to the exclusion of the children of the deceased-whether a will which gave substantial benefit to a spouse to the exclusion of the deceased’s children could be invalidated for failure to provide for the beneficiaries of the deceased-Law of Succession Act, sections 5, 26, 35 (1) (a), and 35 (5)
Law of Succession-personal representatives-executors-powers and duties of executors-duty to account for the estate-duty to the beneficiaries and the Court-where a will named one beneficiary-where an executrix had not rendered an account of the estate-what was the duty of personal representatives, both in testacy and intestacy, in regards to the estate of the deceased-whether failure by an executor/executrix to render accounts in regards to the estate of a deceased person was a violation of his/her duty-Law of Succession Act, sections 79, 82 and 83 (a), (b) ,(c) (e), (f), and (g)

Brief facts:
The applicant filed summons for revocation of the grant of probate disputing the validity of the will on the grounds that: the will did not provide for the children of the deceased, and especially himself, being the only son of the deceased; that there were inconsistencies and contradictions in the body of the will; that the signatures on the will purported to be those of the deceased were not his; and that the two persons who signed the will as attesting witnesses were unknown to him or even the family.

Issues:

  1. Whether a will that assigned substantial benefit to a propounder of the will, to the exclusion of other beneficiaries, could be said to be an invalid will.
  2. Whether oral wishes of a deceased prior to his death in regards to his/her property could override the provisions of a written will.
  3. Whether a will was invalid if the attesting witness were not known to the deceased and/or deceased’s family.
  4. Whether a will which gave substantial benefit to a spouse to the exclusion of the deceased’s children could be invalidated for failure to provide for the beneficiaries of the deceased.
  5. What was the duty of personal representatives, both in testacy and intestacy, in regards to the estate of the deceased?
  6. Whether failure by an executor/executrix to render accounts in regards to the estate of a deceased person was a violation of his/her duty.Read More...

Relevant provisions of the Law
Law of Succession Act
Section 5
(1). any person who is sound of mind and not a minor may dispose of his free property by will …
(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 is 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 7
‘A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, or has been induced by mistake, is void.’

Section 11
‘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 45
‘45. (1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.
(2) Any person who contravenes the provisions of this section shall -

a. be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine imprisonment; and
b. be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.’

Section 76
‘A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by an interested party or of its own motion-

a. That the proceedings to obtain the grant were defective in substance;
b. That the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
c. That the grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
d. That the person to whom the grant was made has failed, after
e. ue notice and without reasonable cause either-

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

f. The grant has become useless and inoperative through subsequent circumstances.’

Evidence Act
Section 109
’The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie in a particular person.’

Held:

  1. The validity of a will was dependent on two principal factors, namely the capacity of the testator to make a will at the material time and compliance with the formal requirements for the making of a will. Section 5 of the Law of Succession Act (Act) dealt with capacity to make a will, and of testation.
  2. The issue of testamentary capacity was not raised and neither was it argued that the deceased did not have the requisite soundness of mind for the purpose of making the impugned will. The matter of the state of mind of the deceased at the time he allegedly made the impugned will in 1998 was therefore not relevant. Evidence was led as to the fact the deceased was ill, had been to London for treatment and died after three days of hospitalization, however that evidence related to 2004, the year of his death rather than 1998 when the will was allegedly made. The provisions of section 5 of the Law of Succession Act, which related to soundness of mind, were not altogether relevant.
  3. Section 7 covered situations where the testator at the time of making the will was of the requisite testamentary capacity. That was, the testator was of age and of sound mind at the material time, but the circumstances of the making of the will detracted from or undermined its validity. Fraud arose in cases where the making of the will was procured by deceit or similar underhand methods. Coercion referred to circumstances where a person was literally forced to make a will in a certain way, either under duress or threats to life or limb. The will, though made by the deceased himself, in terms of the same being executed by him, would not reflect his will or wishes or intentions in the circumstances, but those of the person driving him to make it in that particular way.
  4. Importunity referred to what was often described as undue influence. In such cases there would be no coercion or force or duress as such, but pressure would be brought on the testator of such nature that he could not resist. He would bend to the pressure, not so much because he was persuaded or convinced that he should make his will in such manner, but because he would be tempted to rid himself of the pressure by capitulating to it. Mistake would refer to cases where the testator signed the wrong document, such as that meant for someone else believing it to be meant for him.
  5. The allegation that a will was made under a cloud of suspicion raised the question of fraud. The fact that the circumstances of the making of a will were suspicious would suggest that the making of the will was procured by fraud or fraudulent means. The principle being that a testator had to not only know the contents of the document that he signed as his will, he had to also have approved of those contents. The approval being indication that it reflected his wishes and intention. The suspicion would arise if it appeared from the circumstances that the testator did not either know of the contents or, knowing of the contents, did not approve them. It would particularly arise in cases where the person propounding the will took a substantial benefit under the will.
  6. The Court of Appeal had stated the principle on knowledge and approval where it was said that where, on the face of it, the will appeared to have been properly executed by a person of age and sound mind, a presumption of due execution arose, but that presumption could be displaced by circumstances emerging from the evidence adduced which tended to counterbalance the presumption. On the other hand, the principle of suspicious circumstances had been stated and applied in several Kenyan decisions where it had been stated that the burden of proof lay with the person alleging lack of knowledge and approval, and existence of suspicious circumstances.
  7. The question of lack of knowledge and approval, and execution of a will under suspicious circumstances, usually arose in cases where the testator was in a weakened condition or state caused by either old age, illness, disease, intoxication or the like.
  8. The testator had to be in a weakened or feeble condition and therefore easily amenable to manipulation. It also bespoke undue influence. For a person raising the issue to succeed, it had to be established that the testator was in a weakened position on account of old age or disease or intoxication, he made a will while in that condition, and the propounder of the will played the central role in the process of the execution of the will. That role would include being the person in general control of the testator, being the one who took him around, being the person who prepared the will or procured his own advocate to do it, or the person who took him to an advocate of his own choice for that purpose.
  9. It would appear that in 1998, the deceased was in no weakened or feeble physical or mental condition on account of either old age or disease or intoxication arising from consumption of either alcohol or drugs. Further, that he was in full control of his faculties at the time, and therefore not disposed to manipulation or undue influence or undue pressure from any quarter, of such nature that he could not resist. Nothing on record suggested that he was in such a condition in 1998 as to be overly dependent on others for decision-making and general mobility and locomotion.
  10. It was the circumstances of the making of the will that were suspicious or ought to raise suspicion. The focus should not just be on the large benefit accruing to the propounder of the will, but rather to both the large benefit and the circumstances of the making of the will. The argument should be that the benefit was large because the will was made in circumstances where manipulation or fraud or undue influence or pressure or even coercion was brought to bear on the testator. There had to be evidence of the intimate details of the making of the will, in terms of what exactly transpired at the event of the making of the will.
  11. There was no evidence that the deceased was at that point weak due to old age or disease or intoxication. The advocate who prepared the will was not shown to have been the executrix’s advocate, but that of the deceased himself. Secondly, it was not demonstrated that it was the executrix’s idea that the deceased made a will, and, in particular, suggested the advocate to draft the will and took the deceased to that advocate. It would appear that the executrix merely accompanied her husband, the deceased, to the execution ceremony. There was nothing pointing to the deceased being manipulated or coerced or pressurized by the executrix in anyway in the whole process. There was no evidence on what exactly transpired at the chambers of the advocates where the will was executed. The only available evidence was that from the executrix, and there was nothing extraordinary about the circumstances that would raise eyebrows.
  12. Section 5 of the Law of Succession Act gave the deceased freedom of testation, to dispose of his property as he pleased to whomsoever he pleased. It was within his freedom or discretion to determine who was to benefit from his bounty. The mere fact that a will left out children from benefit and benefited the spouse substantially should not be ground for invalidation of a will. A party aggrieved by such provision had a remedy in section 26 of the Law of Succession Act, but not in the nullification of the will.
  13. Evidence adduced did not refer to any concrete detail of what was discussed with the deceased about disposal of his estate but that the 1998 will was inconsistent with Kikuyu norms, traditions and culture. Such inconsistency would not be a ground for invalidating a will. No direction to any law, whether in statute or judicial precedence, would support that proposition. In any event, whatever oral wishes the deceased might have expressed to the witnesses in 2004 could not, in view of section 10 of the Law of Succession Act, override the provisions of the written will of 1998.
  14. The will was professionally drawn by an advocate, and was executed in his presence. A careful reading through did not show any contradictions. In any event, the mere fact of inconsistencies in a will did not render it invalid. Neither could the same be said to be prima facie evidence of lack of knowledge and approval or existence of suspicious circumstances. Any issue surrounding interpretation of clauses of a will was a matter to be resolved by the Court through construction of the provisions, not invalidation thereof. The Law of Succession Act carried elaborate provisions, in the First Schedule, on construction of wills. There was also wealth of case law.
  15. The respondent did not call any witnesses to adduce evidence on the execution and attestation of the will. That was surprising, given that the purpose of having attesting witnesses was to get evidence on the process of the making of the will should its validity be challenged. It was not clear why the executrix chose not to call them or the advocate who drafted the will, and before whom the will was executed. On the other hand, the applicant did not call a document examiner to give expert opinion on the said signatures nor did he express himself to be a qualified document examiner, or handwriting expert, whose word on the matter could be given some weight. Section 109 of the Evidence Act, Chapter 80 of the Laws of Kenya placed the burden of proof on the applicant.
  16. There was no evidence to demonstrate that the said signatures were not made by the deceased or that they were forged. The only evidence was given in court by the executrix that she saw the deceased sign the document in her presence, and that of the attesting witnesses. Her testimony was not shaken on cross-examination. There were inconsistencies and contradictions in her oral testimony. However, the same were minor. The overall picture that emerged was that she accompanied the deceased to his advocates sometime in 1998 for execution of his will, and he signed the same in her presence. She got to know the contents of the will either before or after the execution.
  17. The allegation of forgery placed a heavy burden upon the applicant to prove beyond reasonable doubt, or at least beyond balance of probability, that indeed the signatures were forged. The applicant led no evidence on the alleged forgery. Therefore, he failed to discharge the burden of proof and thus his allegation of forgery could not succeed. Where a will was regular on its face with an attesting clause and the signature of the testator, a rebuttable presumption of due execution or omnia esse riteatta arose. The will in the instant case was regular on the face of it and the presumption applied to it, but the applicant did not rebut the presumption through concrete evidence.
  18. From the face of the will it appeared that the two attesting witnesses worked as secretaries in the law firm where the will was drawn. The fact that the applicant did not know them did not in any way affect the validity or the will. It was not a requirement of the law, section 11 of the Law of Succession Act that the attesting witnesses ought to be persons who were known to the deceased or his family. Nothing therefore turned on the matter.
  19. The deceased had a freedom to dispose of his estate in a manner that was suitable to him. The freedom was the essence of testate succession, and the fact that the will did not provide for some beneficiaries did not, and could not, invalidate the will. The remedy available to the applicant was to move to court appropriately under the provisions of section 26 of the Law of Succession Act, seeking for reasonable provision out of the estate. The applicant failed to prove the grounds he alleged to invalidate the will and as such the will was valid.
  20. When determining issues of revocation and annulment of grants, the courts ought to be guided by the provisions of section 76 of the Law of Succession Act. Having found that the deceased died testate, and that the will on record was valid, the executors were the proper persons to apply for probate. Therefore, there was no fault in whatever they did and the grant would not be revoked.
  21. According to section 79 of the Law of Succession Act, the estate of a dead person vested in the personal representatives. In the instant cause, the deceased died testate. He named executors in his will who had obtained probate to the will. It was the said executors in whom the assets of the estate vested by virtue of section 79 of the Act. By virtue of the said vesting the said personal representatives became entitled to exercise the powers that were set out in section 82 of the Law of Succession Act, which were akin to those of an owner of the property. They could sue or be sued over the property; sell or enter into contracts in respect to it, among others.
  22. The personal representatives had authority from the grant of representation they held, whether it was one of probate or of letters of administration, to handle estate property. In so handling it, in view of section 79 of the Act, it could not be said that they intermeddled with such property. In the instant cause, the executrix held a grant of probate, the assets vested in her by virtue of section 79 of the Act. The executrix grant had been confirmed. She was entitled in law to handle the assets, and therefore the issue of her intermeddling with the estate did not arise.
  23. The applicant was an undisputed child of the deceased. In intestacy, he would be entitled automatically to a share in the estate of the deceased, whether the assets making up the estate were in Kenya or abroad. In testacy, even though there was freedom of testation, he would be justified to apply for reasonable provision out of the estate should he be inadequately provided for from the will of the deceased. The applicant had a stake in the estate of his late father, and was entitled to information relating to the said estate including being furnished with a copy of any will that disposed of the deceased’s assets abroad, regardless of whether the said assets were free for distribution or whether the will appointed him executor or trustee.
  24. The parties did not place before the Court pleadings in respect of any other cause or suit apart from the two files before the Court. HCSC No 1345 of 2014 was lodged in court during the pendency of the instant cause. The two causes related to the instant estate, yet in HCSC No 1345 of 2014 the applicant did not disclose that there pended another cause on the same estate, where a grant had been made and confirmed. The applicant was privy to that information as he had filed court process in the cause. No doubt, HCSC No. 1345 of 2014 was filed in abuse of court process. It ought not to have been filed in the first place. There were no orders for its consolidation with HCSC No. 417 of 2005 and the Court would accordingly not stay it, instead the same would be consolidated, for whatever it could be worth, with HCSC No. 417 of 2005.
  25. The personal representative of a deceased person held a unique position in law. The property of the dead person was vested in them by virtue of section 79 of the Law of Succession Act. The effect of section 79, read together with section 82 of the Act, was that the same put the personal representative on the same footing with an owner of the property, in the sense that he exercised the powers that the legal owner of the property would have exercised were they alive, and suffered the same burden of duties and obligations over the property as the legal owner would have been under were they alive. Yet, the property, although vested in them by law, would not be theirs.
  26. Although the personal representative had legal title akin to that of an owner, the property did not belong to them. They only held it in trust for the eventual beneficiaries, which were those named in the will, in cases of testate succession, and those identified at confirmation of grant, in cases of intestacy. They would also be holding it for the benefit of creditors and any other persons who might have a valid claim against the estate. That would mean that they were trustees of the estate, and, indeed, the Trustee Act, Cap 167, Laws of Kenya, defined trustees to include executors and administrators. In the circumstances, therefore, the personal representative would stand in a fiduciary position so far as the property was concerned and owed a duty to the beneficiaries to render an account to them of their handling of the property that they held in trust for them.
  27. Personal representatives administered estates on the strength of legal instruments made to them by the Probate Court. The vesting of the estate of the deceased on the personal representatives by virtue of section 79 of the Act flowed from the instrumentality of the grant of representation. Upon representation being made, the grant holder then became entitled to exercise the statutory powers conferred upon personal representatives by section 82 of the Act and incurred the duties imposed on them by section 83 of the Act. Additional powers flowed from and duties were imposed by other statutes, such as the Trustee Act.
  28. Under section 82 of the Act, there were powers to enforce and defend causes of action on behalf of the estate, to sell or convert estate assets, to assent to vesting of bequests and legacies on the beneficiaries, among others. Acts done or actions taken on behalf of the estate or for the benefit of the estate would have to be accounted for. In other words, the personal representatives were bound to account for every action they took on behalf of the estate, for they exercised the powers on delegation.
  29. Section 83 of the Act imposed duties on personal representatives to pay for the expense of the disposal of the remains of the deceased, to get in or gather or collect the assets of the estate, to pay for the expenses of the administration of the estate, to ascertain and pay out all debts and liabilities, and eventually to distribute the assets amongst the persons beneficially entitled. The discharge of the duties would naturally attract an account, in terms of the personal representative stating whether they discharged the said duties and disclosing the expenses that they incurred in the process of discharge.
  30. Section 83 of the Act imposed a positive duty on personal representatives to specifically render accounts at two stages. The first instance was in the first six months of the administration. It was at that stage that they ought to account as to whether they spent any funds from the estate for the purpose of disposing the remains of the deceased and, if so, how much. State whether they got in or gathered or collected or brought together all the assets that made up the estate. The getting in of the estate was critical; it should precede settlement of debts and liabilities and distribution of the assets. Those duties could only be discharged if there were assets sufficient to settle debts leaving a surplus for distribution. It would also be from the assets collected that the estate would have a pool of resources for administration expenses.
  31. Section 83 (e) commanded the personal representatives to produce in court a full and accurate inventory of the assets and liabilities, no doubt generated from the exercise of getting in the assets and ascertaining the debts of the estate. There was also an obligation to render an account of all their dealings with the assets and liabilities up to the point of the account. The second occasion for rendering accounts was at the completion of administration under section 83 (g) of the Act. The object of the second and final account was to give opportunity to the personal representative to demonstrate that they had complied with the duty in section 83 (f) of distribution of the estate to the beneficiaries. The duty to account on those two occasions was imposed by statute. It envisaged an account to the Court, not even to the beneficiaries.
  32. The powers exercised by the personal representative’s flowed from a court instrument, the Court was entitled to know whether those powers had been properly exercised, and whether the duties imposed had been properly discharged. Being a statutory duty to account to the Court, the personal representative did not have to wait for a court order directing them to render account; they had to render the accounts as a matter of course. The duty to render accounts was so critical that default to do so was listed in section 76 (d) (iii) of the Act as one of the grounds upon which the Court could consider revoking a grant.
  33. The law commanded rendering of accounts by personal representatives whether the deceased died testate or not and no exception extended to any person or in respect of any circumstances. Whether the will the subject of the proceedings named only one beneficiary would not preclude the personal representative in that case from complying with section 83 (e) (g) of the Act. He had to, even then, render accounts as required by that provision. In the instant matter, the executrix did not appear to have rendered any accounts. Therefore, she had not complied with section 83 (e) (g) of the Act and should comply with it by rendering an account in terms of section 83, disclosing whether or not she had discharged all the duties set out in section 83(a)(b)(c) and (f) of the Act.
  34. From perusal of the will, the executrix was not a sole beneficiary of the estate under the will claimed. The will did not convey any property to her absolutely, as it largely placed the estate in her hands as trustee on behalf of the children of the deceased, who would ultimately take the same as tenants-in-common in equal shares. The executrix related to the property or the estate, according to the terms of the will, in much the same way a surviving spouse enjoyed a life interest in the net intestate estate in accordance with section 35(1) (a) of the Act, and upon determination of the life interest the property devolving upon the children to be shared equally amongst them in terms of section 35(5) of the Act. For all practical purposes, the executrix was a trustee and had to render accounts in accordance with the law.
  35. The executor renounced probate in October 2015 or thereabouts. The grant was made in 2005 and was confirmed in 2006. It was to be presumed that the executor had been in office all that while. He was bound to render accounts for the period that he had been in office. There was default in rendering accounts in the case yet the executor was an advocate of the High court, who was to be presumed to have knowledge of the legal requirements of section 83 (e) (g) of the Act. He should have held the hand of the executrix so far as those matters were concerned.
  36. The Court avoided venturing to address the matter of wastage of estate assets at the stage before accounts were first rendered by the executors as it should be from that account that the Court would be in a position to know the extent of the estate after the executors hade placed before the court a list of the assets and liabilities that they had ascertained, a list of the assets of the estate that they had gathered or collected or got in, an account of the income or revenue from income-generating assets of the estate, and an account of the monies that they had expended from the estate on the deceased’s burial, estate administration and settlement of debts and liabilities. It would be only after that that the Court would be able to tell whether or not the executors properly executed their mandate as such. Further orders and directions on the next course of action, including whether the executrix should be removed as a personal representative, should follow after accounts had been rendered in accordance with section 83 of the Act.
  37. Whereas section 83 of the Act envisaged an account at only two instances, after the first six months of the administration and at the conclusion of the administration, where there was a continuing trust, and therefore where it might take a longer period of time before administration was completed, the personal representatives would have to render accounts on more than two occasions. They ought to do so on a continuing basis, at any rate after every six months that they continued in administration beyond the timelines set by the Law of Succession Act in section 83.
  38. The design of the will was that the estate was conveyed first to the executrix during her lifetime to hold in trust, and then thereafter to the children in equal shares. There was also the provision that in the event the executrix predeceased the deceased, the property would devolve upon the children in the terms specified in the will. Therefore, the will envisaged two scenarios. The first would be where the widow, the executrix, were to predecease the deceased, then the entire estate would have be dealt with in terms of clauses 6 to 16 of the will, where the property would be disposed of item by item amongst the three children. Should the executrix survive the deceased, then the second scenario would apply as set out in clauses 2, 3, 4 and 5. It transpired that the executrix survived the testator and therefore the clauses of the will that applied were clauses 2, 3, 4, and 5, and not clauses 6 to 17 of the will.
  39. Clause 3 disposed of Aguthi/Gatitu/899 to the executrix upon trust for life and upon her death to the applicant absolutely. Clause 4 placed the rest of the estate into the residue, and put the same in the hands of the trustees, and under clause 5 of the will the residue was to be held upon trust by the executrix for her own use and benefit absolutely. Clause 16 of the will provided that the residue, or the Residuary Kenyan Estate, to use the terms of the will, was to be held upon trust for the three children of the deceased. The applicant and his siblings were clearly provided for and named in the will as beneficiaries, only that their benefits were not immediate as the children would only access the estate upon the demise of their mother. They were entitled to equal shares of the entire estate at her demise; meaning that the applicant was entitled to one third of the entire estate should his mother pass on.
  40. In the circumstances there could not be any foundation to mount an application under section 26 of the Law of Succession Act for lack of adequate provision. In any event, the applicant had to contend with section 30 of the Act, which provided that such an application could only be made before the grant was confirmed. The grant was confirmed in 2006, the prayers for reasonable provision were therefore overtaken by events. The applicant had not demonstrated that there was room for extension of the period for filing such an application after grant had been confirmed. The applicant had been adequately provided for from the will of the deceased. He was entitled to a third of the estate at the demise of the executrix. The problem appeared to be that he was impatient and unwilling to wait for the bequests made to him to mature.
  41. In regards to censure of the executrix for threatening witnesses and intimidating them, a matter had been filed at the Employment and Labour Relations Court over the incident. The pleadings in the matter had not been placed before the Court. The issues raised in the application and the labour matter were intertwined, it was about the Farm manager being dismissed from employment due to fact that he was to be called as a witness in the instant matter. The matter before the Labour Court was a substantive suit, while what was before the Court was an interlocutory application. The Court would refrain from venturing to deal with matters which might embarrass the Employment and Labour Relations Court during determination of the dispute before it.
  42. Contempt of court was a criminal offence, whether it arose in civil or criminal proceedings. It could be dealt with in either civil or criminal proceedings. The offence of intimidating witnesses was defined in both the Penal Code, Cap 63, Laws of Kenya, and in the Contempt of Court Act, No. 46 of 2016. Where the charge was brought under the Penal Code, the contemnor would be tried in ordinary criminal proceedings. Where the same was brought under the Contempt of Court Act, the same would then be initiated in the procedure prescribed for civil contempt, similar to that reserved for judicial review, by motion supported by a statement and a verifying affidavit.
  43. The applicant had not approached the Court by such a process. The sanctions provided for contempt of court were criminal in nature. The standard of proof should be above those in civil cases, and close to that in criminal cases. Due process was expected to be followed at all times in criminal matters. That would mean that the applicant ought to present a clear case of intimidation. The application would not be an appropriate process for dealing with the complaint in question.

Application dismissed
Orders

  1. The will of the deceased on record, executed on January 23, 1998 was genuine and valid.
  2. The applicant was adequately provided for under the terms of the said will.
  3. It was directed the executor and executrix of the said will to within forty-five (45) days of date of the judgment, file a full and accurate inventory of the assets and liabilities of the estate and an account of their handling of the estate of the deceased in keeping with section 83 of the Law of Succession Act.
  4. Upon the filing of the inventory and accounts referred to, the applicant would be at liberty to move the Court appropriately for other or further orders arising from the said account.
  5. The executrix would furnish the applicant, within thirty (30) days of the date of the judgment, with a copy of the will of the deceased which disposed of his foreign estate.
  6. No order as to costs.
  7. Any party aggrieved by the orders made would be at liberty to challenge the same at the Court of Appeal within twenty-eight (28) days.

CIVIL PRACTICE AND PROCEDURE Amina Tahir Sheikh Said (Suing as the Executors of the Will of Tahir Sheikh Said Ahmed) v Nomad Energy and 6 others

Suit 168 of 2018
High Court at Nairobi
Environmental & Land Suit
E O Obaga, J
January 17, 2019
Reported by Kadzo Jally

Download the Decision

Civil Practice and Procedure-institution of suits-locus standi-executor of a will-where a will was being challenged-locus standi to institute suit without a grant of probate-whether an executor of a will had the locus standi to institute a suit where a will was being challenged, the Law of Succession Act, section 80(1) and 80(2)
Civil Practice and Procedure-parties to a suit- joinder of parties-where there was an existing party who was capable of litigating on its own and was on record in the suit-whether a person could be enjoined to litigate on behalf of a party who was capable of litigating on its own and was on record in the suit
Jurisdiction-jurisdiction of the Environment and Land Court(ELC)-jurisdiction of the Probate Court-jurisdiction of the ELC vis-à-vis the Probate Court-claim that the will was a forgery-whether the Environmental and Land Court (ELC) had the jurisdiction to determine matters of forgery of wills and succession

Brief facts:
The applicants in the instant suit were the executors and beneficiaries of the suit property registered in the name of the deceased on which a petrol station was constructed and was being run for the benefit of the deceased and his beneficiaries. Upon the demise of the deceased, the defendant/respondent, M/s Nomad Energy Limited moved into the suit property and branded the petrol station with its colors on the premise that the defendant/respondent had a lease from Capital Oil Limited. To that effect, the applicants filed two applications, with the first application seeking, inter alia, a temporary injunction restraining the defendants from trespassing on or carrying on any other business on any part of that property; an interlocutory injunction, compelling the defendants to remove all its structures, equipment, unlawfully brought by the defendant onto the property and to grant the plaintiffs vacant possession of it pending the hearing and determination of the suit. The second application was brought by the sons of the deceased and one of the widows who were seeking to be enjoined in the case as interested parties and for the suit to be dismissed or the proceedings stayed.

Issues:

  1. Whether an executor of a will had the locus standi to institute a suit where a will was being challenged.
  2. Whether a person could be enjoined to litigate on behalf of a party who was capable of litigating on its own and who was on record in the suit.
  3. Whether a sub-lease issued by a donor of a Power of Attorney was valid where the donor died before giving consent
  4. Whether an Environmental and Land Court (ELC) had the jurisdiction to determine matters on allegations of forgery of wills and succession.Read More..

Held:

  1. Executors of a will of a deceased were at liberty to file proceedings to protect the property of the deceased even before grant of probate. Contrasting section 80(1) and 80(2) of the Law of Succession, the Court of Appeal had held that in the case of an executor, he could perform most of the acts appertaining to his office before probate including the bringing of a fresh action because he derived title from the will and the property of the deceased vested in him from the moment of the intestate’s death. Where the will of the deceased was being challenged, the executorship of the will could not remain in limbo until the challenge failed.
  2. The will of the deceased was being challenged in courts in Mombasa. An executor of a will of a deceased was free to bring proceedings even where the will was being challenged. Therefore, the applicants had the locus standi to bring the instant suit and application.
  3. Before a prohibitory interlocutory injunction could be granted, the applicant had to demonstrate that he had a prima facie case with probability of success. In grant of a mandatory injunction, the applicant had to demonstrate that there were special circumstances which existed which called for its grant. For example, the applicant was expected to show that the case was a clear one which could be remedied in a summary manner or that the respondent had tried to steal a match on the applicant.
  4. There was nothing wrong with the registration of a lease after the demise of a donor if the lease had been granted before their death. In the instant case, the deceased had granted a general power of attorney to the donor over his properties who granted a lease over the suit property to Capital Oil Limited for a period of 20 years before the demise of the deceased. Further, there was nothing wrong with Capital Oil entering into a sub-lease with the respondent after the demise of the deceased because there was grant of lease for 20 years which had been executed by a person who had a power of attorney over the properties of the deceased including the suit property.
  5. The fact that there was no evidence that there was consent to sublet could not defeat the sub-lease held by the respondent. Being an interlocutory application, nothing much could rest on grant or non-grant of consent to sub-let and as such, there was no basis to grant either a temporary prohibitory injunction or mandatory injunction.
  6. In regards to the second application, if the applicants thought that the deceased’s will was a forgery, which issue could only be dealt with by the Kadhi’s Court or the Family Division of the High Court in Mombasa. In addition, the applicants could not seek to litigate on behalf of a party who was capable of litigating on its own and was on record in the suit. In any case, the application for injunction had no basis as the applicants had no suit on which to base it.
  7. Case law had developed the parameters upon which a party could be allowed into a suit. Some of those parameters were that it had to be demonstrated that the Court could not grant an effective remedy in the absence of the intended interested party. In the instant case the Court could pass a decree without the presence of the intended interested parties. The intended interested parties were raising issues to do with succession. The court was not the forum for such. The best forum was the Succession Court as demonstrated by the annexure to the applicants’ application

Applications dismissed with no orders to cost.

Long'et Terer - CEO and Editor

e: editor@kenyalaw.org

t: @LongetTerer

The Kenya Law Team

Where Legal Information is Public Knowledge.

The National Council for Law Reporting | P.O Box 10443 - 00100, Nairobi Kenya. | www.kenyalaw.org