Weekly Newsletter 022/2019



Kenya Law

Weekly Newsletter


Section 162 (a) (c) of the Penal Code on Unnatural Offences and Section 165 of the Penal Code on Indecent Practices Between Males was Constitutionally Compliant and in Conformity with the Principles of Legality
EG & 7 others v Attorney General; DKM & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae)
Petition 150 & 234 of 2016
High Court at Nairobi
R Aburili, E C Mwita & J M Mativo, JJ
May 24, 2019
Reported by Robai Nasike & Moses Rotich

Download the Decision
 
Constitutional Law- interpretation of the Constitution - principles for interpretation of the Constitution-what were the guiding principles in interpretation of the Constitution-whether the social and historical background of a legislation ought to be considered during interpretation- under what circumstances would public interest and the will of the people be put into consideration during interpretation-Constitution of Kenya, article 259 (1)
Statutes- interpretation of statutes- interpretation of section 162 and 165 of the Penal Code- where the provisions of section162 and 165 were contested for being vague, ambiguous and uncertain- what was the threshold for interpretation of penal statutes in view of the Constitution- whether failure by section 162 (a) (c) and 165 of the penal to define the phrases, “unnatural offences,” and “against the order of nature” rendered the section vague, ambiguous, and thus unconstitutional- whether the phrases “indecency with another male person” and “any act of gross indecency with another male person” in section 165 of the Penal Code was unclear, vague, and ambiguous hence rendered the section unconstitutional- Penal Code, sections 162 (a) (c) and 165
Constitutional Law-non-discrimination-guiding principles in cases of non-discrimination- what amounted to unfair discrimination- whether every aspect of differentiation amounted to discrimination- under what circumstances was differentiation considered permissible-whether section 162 and 165 of the Penal Code was discriminatory and accorded differential treatment to sexual and gender minorities- Constitution of Kenya, article 27.
Constitutional Law- fundamental rights and freedoms-right to the highest attainable standard of health-claim that enforcement of sections 162 and 165 of the Penal Code impeded on the petitioners’ right to the highest attainable of health-whether section 162 and 165 of the Penal were in conflict with article 43(1) of the Constitution- Constitution of Kenya, article 43 (1)
Constitutional Law- fundamental rights and freedoms-right to fair trial-fair hearing-claim that section 162 and 165 of the Penal was unclear, vague, and ambiguous- whether the enforcement of sections 162 and 165 of the Penal Code could lead to conflict with article 50 of the Constitution- C0nstitution of Kenya, article 50 (2)
Constitutional Law- fundamental rights and freedoms-freedom and security of the person-claim that enforcement of sections 162 and 165 of the Penal Code led to violation of the petitioners’ rights to freedom and security of the person-Constitution of Kenya, article 29, Universal Declaration of Human Rights, articles 3 and 9, and African Charter on Human and Peoples Rights, article 6.
Constitutional Law-fundamental rights and freedoms-right to human dignity and privacy-sections 162 creating unnatural offences and 165 of the Penal Code criminalizing consensual sexual acts between male persons violated the petitioners’ rights to human dignity and privacy-claim that criminalisation of private homosexual acts was an unjustified interference with the right to privacy-whether sections 162 and 165 of the Penal Code was a justifiable limitation to the right to human dignity and privacy-Constitution of Kenya 2010, articles 24, 28, and 31, Universal Declaration of Human rights, articles 1,5, and 12.
Words and Phrases- ambiguous- definition of ambiguous-capable of being understood in more senses than one; obscure in meaning through indefiniteness of expression-having a double meaning; doubtful and uncertain; unascertainable within the four corners of the instrument; open to construction; reasonably susceptible to different constructions; uncertain because of susceptible of more than one meaning.
Words and Phrases- carnal- definition of carnal- of the body- relating to the body-fleshly- sexual
Words and Phrases- carnal knowledge- definition of carnal knowledge- the act of a man in having sexual bodily connection with a woman-carnal knowledge and sexual intercourse hold equivalent expressions-Black’s Law Dictionary, 9th edition.
Words and Phrases- unnatural offences- definition of unnatural offence- the infamous crime against nature; for example, sodomy or buggery-the Law Dictionary
Words and Phrases- buggery- definition of buggery- includes both sodomy and bestiality-carnal copulation by human beings with each other or with a beast.
Words and Phrases- values- definition of values- principles or standards of behaviour- the Concise Oxford English Dictionary
Words and Phrases- bestiality- definition of bestiality-an act between mankind and beast
 
Brief facts:
The consolidated petitions challenged the constitutionality of sections 162(a) (c) and 165 of the Penal Code. Additionally, petition 150 of 2016 assaulted the said provisions on grounds of vagueness and uncertainty. Petition 234 of 2016 sought a declaration that sexual and gender minorities were entitled to the right to the highest attainable standards including the right to health care services as guaranteed in article 43 of the Constitution. The petitioners also sought an order directing the State to develop policies and adopt practices prohibiting discrimination on grounds of sexual orientation and gender identity or expression in the health sector.
 
Issues:
  1. What were the guiding principles in interpretation of the Constitution?
  2. Whether the social and historical background of legislation ought to be considered during interpretation
  3. What are the circumstances under which public interest and the will of the people are considered during interpretation of a statute?
  4. Whether failure by section 162 (a) (c) of the penal to define the phrases, “unnatural offences,” and “against the order of nature” rendered the section vague, ambiguous, and thus unconstitutional.
  5. Whether the phrases “indecency with another male person” and “any act of gross indecency with another male person” in section 165 of the Penal Code was unclear, vague, and ambiguous hence rendered the section unconstitutional.
  6. Whether differential treatment would amount to unfair discrimination.
  7. Whether sections 162(a) and(c) and 165 of the Penal Code were unconstitutional for infringing the following rights of the petitioners:
    1. right to equality and freedom from discrimination under article 27
    2. right to the highest attainable standards of health under article 43 of the Constitution.
    3. right to a fair trial under article 50 of the Constitution.
    4. right to freedom and security of the person protected under article 29 of the Constitution
    5. right to freedom of conscience, religion, belief and opinion under article 32 of the Constitution.
    6. right to human dignity and privacy protected by articles 28 and 31 of the Constitution.

Relevant provisions of the law
The Constitution of Kenya, 2010
Article 25 (a) &(c)

Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited—

(a)freedom from torture and cruel, inhuman or degrading treatment or punishment;
(b) …;
(c)the right to a fair trial;

Article 27
(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
 (2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
 (3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
 (4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
 (5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).
 (6) To give full effect to the realization of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.
 (7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.
 (8) In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.

 

Article 28
Every person has inherent dignity and the right to have that dignity respected and protected.
 

Article 31
Every person has the right to privacy, which includes the right not to have—

a) their person, home or property searched;
b) their possessions seized;
c) information relating to their family or private affairs unnecessarily required or revealed; or
d) the privacy of their communications infringed.

Article 32
1. Every person has the right to freedom of conscience, religion, thought, belief and opinion.
 

Article 43(1)(a)
Every person has the right—

(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;

Article 45
(1)The family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State.
(2)Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.
 

The Penal Code
Section 162

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.

Section 165

Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.
 

Sexual Offences Act
Section 2

“indecent act” means an 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;
 

Held:

  1. The Constitution gave prominence to national values and principles of governance which included human dignity, equity, social justice, inclusiveness, equality, human rights and rule of law, leadership and integrity, values and principles of public service, entrenchment of exercise of judicial authority in the Constitution and independence of the Judiciary and conferred sovereignty to the people of Kenya to be exercised on their behalf by State organs to perform their functions in accordance with the Constitution.
  2. Interpretation was the process of attributing meaning to the words used in a document, be it a Constitution, legislation, statutory instrument, policy or contract having regard to the context provided, by reading the particular provision or provisions in light of the document as a whole and the circumstances attendant upon its coming into existence. The inevitable point of departure was the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.
  3. In interpreting the Constitution, article 259(1) obligated the courts to promote the spirit, purposes, values and principles of the Constitution, advance the rule of law, and the human rights and fundamental freedoms in the Bill of Rights, permit the development of the law and contribute to good governance. The court had a duty to adopt an interpretation that conformed to article 259.
  4. Constitutional provisions had to be construed purposively and in a contextual manner. Accordingly, courts were constrained by the language used. Courts might not impose a meaning that the text was not reasonably capable of bearing. In other words, the interpretation should not be unduly strained but should avoid excessive peering at the language to be interpreted without sufficient attention to the historical contextual scene, which included the political and constitutional history leading up to the enactment of a particular provision.
  5. Enforcement of penal statutes was a necessary tool to maintain law and order and also created offences against morality. The enforcement of penal statutes had an impact on constitutionally guaranteed rights. The litmus test was whether such limitation would pass constitutional muster. Penal statutes had to be understood purposively because the Penal Code had to be umbilically linked to the Constitution. The court had to seek to promote the spirit, purpose and objects of the Constitution. It had to prefer a generous construction over a merely textual or legalistic one in order to afford the fullest possible constitutional meanings and guarantees.
  6. In searching for the purpose, it was legitimate to seek to identify the mischief sought to be remedied. In part, that was why it was helpful, where appropriate, to pay due attention to the social and historical background of the legislation. The court had to understand the provision within the context of the grid, if any, of related provisions and of the Constitution as a whole, including its underlying values. Although the text was often the starting point of any statutory construction, the meaning it bore had to pay due regard to context. That was so even when the ordinary meaning of the provision to be construed was clear and unambiguous.
  7. The social and historical background of legislation was important in seeking to identify the mischief sought to be remedied. One of the canons of statutory construction that a court might look into was the historical setting of an Act, to ascertain the problem with which the Act in question had been designed to deal.
  8. A holistic interpretation of the Constitution meant that the Constitution had to be interpreted in context. It was the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation did not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result. It was an elementary rule of constitutional construction that no one provision of the Constitution was to be segregated from the others and to be considered alone, but that all the provisions bearing upon a particular subject were to be brought into view and be interpreted so as to effectuate the greater purpose of the instrument.
  9. Words, spoken or written, were the means of communication. Where they were possible of giving one and only one meaning there would be no problem. But where there was a possibility of two meanings, a problem arose and the real intention of the legislature was to be ascertained and given meaning. The legislature, after enacting statutes became functus officio so far as those statutes were concerned. It was not their function to interpret the statutes. The legislature enacted and the judges interpreted. The difficulty with judges was that they could not say that they did not understand a particular provision of an enactment. They had to interpret it in one way or another. They could not remand or refer back the matter to the legislature for interpretation.
  10. A court of law had to try to determine how a statute should be enforced. There were numerous rules of interpreting a statute, but, and without demeaning the others, the most important rule was the plain meaning rule. The starting point of interpreting a statute was the language itself. In the absence of an expressed legislative intention to the contrary, the language had to be ordinarily taken as conclusive.
  11. It was not the duty of the court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision was plain and unambiguous. The court could not rewrite, recast or reframe the legislation for the very good reason that it had no power to legislate. The court might not add words into a statute. Courts decided what the law was and not what it should be. The court of course adopted a construction which would carry out the obvious intention of the legislature.
  12. All that the court had to see at the very outset was what the provision said. If the provision was unambiguous and if from that provision the legislative intent was clear, the other rules of construction of statutes need not be called into aid. They were called into aid only when the legislative intention was not clear. But the court would not be justified in so straining the language of the statutory provision as to ascribe the meaning which could not be warranted by the words employed by the legislature.
  13. In interpreting the provisions of a statute the court should apply the golden rule of construction. The plain meaning of the language in a statute was the safest guide to follow in construing the statute. According to the golden or general rule of construction the words of a statute had to be given their ordinary, literal and grammatical meaning and if by so doing it was ascertained that the words were clear and unambiguous, then effect should be given to their ordinary meaning unless it was apparent that such a literal construction fell within one of those exceptional cases in which it would be permissible for a court of law to depart from such a literal construction; such as where it led to a manifest absurdity, inconsistency, hardship or a result contrary to the legislative intent.
  14. The touchstone of interpretation was the intention of the legislature. The legislature might reveal its intentions directly, for example by explaining them in a preamble or a purpose statement. The language of the text of the statute should serve as the starting point for any inquiry into its meaning.
  15. To properly understand and interpret a statute, one had to read the text closely, keeping in mind that the initial understanding of the text might not be the only plausible interpretation of the statute or even the correct one. Courts generally assumed that the words of a statute meant what an ordinary or reasonable person would understand them to mean. If the words of a statute were clear and unambiguous, the court need not inquire any further into the meaning of the statute. Parliament intended its legislation to be interpreted in a meaningful and purposive way giving effect to the basic objectives of the legislation. The court, as an independent arbiter of disputes, had fidelity to the Constitution and had to be guided by the letter and spirit of the Constitution. Similarly, in interpreting a statute, the court should give life to the intention of the lawmaker instead of stifling it.
  16. Certainty was generally considered to be a virtue in a legal system while legal uncertainty was regarded as a vice. Uncertainty undermined both the rule of law in general and the law’s ability to achieve its objectives such as determining anti-social conduct.
  17. The law was a profession of words. By means of words contracts were created, statutes were enacted, and constitutions came into existence. Yet, in spite of all good intentions, the meanings of the words found in documents were not always clear and unequivocal. They might be capable of being understood in more ways than one, they may be doubtful or uncertain, and they might lend themselves to various interpretations by different individuals. In the eyes of the law, when that kind of situation arose, the contract or the legislation contained ambiguity.
  18. The phrase “against the order of nature” had been judicially defined as sexual intercourse. There had to be penetration, however slight, and emission of semen was not necessary. With particular reference to the offence of sodomy, penetration per se had to be proved. The other party involved in the intercourse might be a man or a woman. It was the penetration through the anus that made the intercourse "against the order of nature" and therefore provided the other element of the offence.
  19. A statute was void for vagueness and unenforceable if it was too vague for the average citizen to understand. There were several reasons a statute might be considered vague. In general, a statute might be called void for vagueness when an average citizen could not generally determine what persons were regulated, what conduct was prohibited, or what punishment might be imposed. A statute was also void for vagueness if a legislature's delegation of authority to administrators was so extensive that it would lead to arbitrary prosecutions. The doctrine of void for vagueness established specific criteria that all laws or any legislation had to meet, to qualify as constitutional; the Law had to state explicitly what it mandated, and what was enforceable and provide definitions of potentially vague terms. Vagueness was the imprecise or unclear use of language, which contrasted with clarity and specificity.
  20. Prior to determining whether the challenged language was overbroad, its meaning had to be properly construed.In so doing, the text had to be read as a whole, assigning a meaning to every word and phrase, and not permitting any portion of the text to be rendered redundant. Thus, the various forms of sexual conduct, natural, indecent, against the order of nature, and gross indecency listed in the impugned provisions, had to be individually accounted for, and assigned distinct meanings. The Constitution required that judicial officers read legislation, where possible, to give effect to its fundamental values. Consistent with that, when the constitutionality of legislation was in issue, courts were under a duty to examine the purpose of an Act and to read the provisions of the legislation so far as was possible to conform with the Constitution.
  21. The impugned phrases were clearly defined in law dictionaries and in a catena of judicial pronouncements; lack of definitions in the statute per se did not render the impugned provisions vague, ambiguous or uncertain. The impugned provisions could not be declared unconstitutional on grounds of vagueness, uncertainty, ambiguity and over broadness because:
    1. the phrases used in the sections under challenge were clear as defined above;
    2. the provisions disclose offences known in law;
    3. a person accused under the impugned provisions would be informed of the nature, particulars and facts of the offence;
    4. there was a real danger that in reading down an overbroad statute, the High Court would simply substitute the vice broadness with the equally fatal infirmity of vagueness.
  22. Indisputably, there existed a presumption as regards constitutionality of a statute. The rule of presumption in favour of constitutionality, however, only shifted the burden of proof and rested it on the shoulders of the person who attacked it. It was for that person to demonstrate that there had been a clear transgression of constitutional principles. However, that rule was subject to the limitation that it was operative only until the time it became clear and beyond reasonable doubt that the legislature had crossed its bounds. The guiding principles in a case of such nature were that the court had to establish;
    1. whether the law differentiated between different persons;
    2. whether the differentiation amounted to discrimination; and,
    3. whether the discrimination was unfair.
  23. Discrimination meant treating differently, without any objective and reasonable justification, persons in similar situations. Discrimination was a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which had the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed upon others, or which withheld or limited access to opportunities, benefits and advantages available to members of society. Thus, the Constitution only prohibited unfair discrimination. Unfair discrimination was differential treatment that was demeaning. It materialized when a law or conduct, for no good reason, treated some people as inferior or less deserving of respect than others. It also occurred when a law or conduct perpetuated or did nothing to remedy existing disadvantages and marginalization. The principle of equality attempted to make sure that no member of society was made to feel that they were not deserving of equal concern, respect and consideration, and that the law or conduct complained of was likely to be used against them more harshly than others who belong to other groups.
  24. When determining whether a claim based on unfair discrimination should succeed, the stages of inquiry were;
    1. Whether the provision differentiated between people or categories of people. If so, whether the differentiation bore a rational connection to a legitimate purpose. If it did not, then there was a violation of the constitution. Even if it did bear a rational connection, it might nevertheless amount to discrimination.
    2. Whether the differentiation amounted to unfair discrimination;
      1. If it was on a specified ground, then discrimination had been established. If it was not on a specified ground, then whether or not there was discrimination would depend upon whether, objectively, the ground was based on attributes and characteristics which had the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.
      2. If it was found to have been on a specified ground, then the unfairness would be presumed. If on an unspecified ground, unfairness would have had to be established by the complainant. The test of unfairness focused primarily on the impact of the discrimination on the complainant and others in his or her situation. If, at the end of that stage of the enquiry, the differentiation was found not to be unfair, then there would be no violation.
    3. If the discrimination was found to be unfair then a determination would have to be made as to whether the provision could be justified under the limitations clause.
  25. Mere discrimination, in the sense of unequal treatment or protection by the law in the absence of a legitimate reason was a most reprehensible phenomenon. But where there was a legitimate reason, then, the conduct or the law complained of could not amount to discrimination.
  26. It was not every differentiation that amounted to discrimination. It was always necessary to identify the criteria that separated legitimate differentiation from constitutionally impermissible differentiation. Put differently, differentiation was permissible if it did not constitute unfair discrimination. The jurisprudence on discrimination suggested that law or conduct which promoted differentiation had to have a legitimate purpose and should bear a rational connection between the differentiation and the purpose.
  27. The language of section 162 was clear. It used the words “any person.” A natural and literal construction of those words left no doubt that the section did not target any particular group of persons.Similarly, section 165 used the words “any male person.”A plain reading of the section revealed that it targeted male persons and not a particular group with a particular sexual orientation. The wording of that section left no doubt that in enacting that provision, Parliament appreciated that the offence under the said section could only be committed by a male person.In fact, the short title to the section read “indecent practices between males.” The operative words therein were “any male person” which clearly did not target male persons of a particular sexual orientation.
  28. A party pleading violation of constitutional rights was at the very least expected to give credible evidence of the said violation and that it was not enough to merely plead and particularize a violation. Even where a party cited articles of the Constitution alleging that they had been violated, he or she was duty bound to adduce convincing evidence to prove the alleged violations.In the instant case, save for the allegations made in the petition and the affidavits, no tangible evidence was given to support the allegations. No iota of evidence was tendered to establish any of the cited acts of discrimination. There was no basis at all upon which the court could uphold any of the alleged violations. In the end, the petitioners had failed to establish that the impugned provisions were discriminatory.
  29. The general principle governing determination of cases was that a party who made a positive allegation carried the burden of proving it. Moreover, the onus to establish the violation of alleged rights was not a mere formality. Differently put, the onus laid on one who alleged to prove every element constituting their cause of action. That included sufficient facts to justify a finding that the rights had been violated.
  30. Constitutional analysis under the Bill of Rights took place in two stages. First, the applicant was required to demonstrate his or her ability to exercise a fundamental right had been infringed. If the court found that the law, measure, conduct or omission in question infringed the exercise of the fundamental right, or a right guaranteed in the Bill of Rights, the analysis might move to the second stage. In the second phase, the party seeking to uphold the restriction or conduct would be required to demonstrate the infringement or conduct was justifiable in a modern democratic state and satisfied the article 24 test. Cases were decided on the legal burden of proof being discharged (or not). The legal burden of proof was consciously or unconsciously the acid test applied when coming to a decision in any particular case. The court’s decision in every case would depend on whether the party concerned had satisfied the particular burden and standard of proof imposed on them.
  31. Decisions on violation of constitutional rights should not, and ought not to be made in a factual vacuum. To attempt to do so would trivialize the constitution and inevitably result in ill-considered opinions. The presentation of clear evidence in support of violation of constitutional rights was not a mere technicality; rather, it was essential to a proper consideration of constitutional issues. Decisions on violation of constitutional rights could not be based upon unsupported hypotheses.
  32. No evidence was placed before the court to support the allegations the petitioners’ right to health as stipulated in article 43(1) had been violated. None of the petitioners tendered evidence to prove that they had been denied medical attention in any health facility in the country, or were subjected to mistreatment in the course of seeking medical attention. They merely made generalized statements without proof. Based on the analysis of the material placed before court, and the instant matter being a constitutional petition, the impugned provisions did not infringe on the petitioners’ article 43 right to the highest attainable standards of health.
  33. Evidence obtained in a manner that violated any right in the Bill of Rights had to be excluded if its admission would render the trial unfair or otherwise detrimental to the administration of justice. None of the petitioners tendered evidence to suggest that evidence had been illegally procured from them and used against them in violation of their rights guaranteed in the Constitution. In any event, such a claim would constitute a distinct cause of action.
  34. The right to a fair trial was absolute, and under article 50 (2), no one should be charged with an offence, which was not an offence at the time of its commission. However, the offences in question were provided for in the law. In addition, no evidence was adduced to show that any of the petitioners was charged with an offence that was not in existence at the time they were charged.
  35. Article 50 (2) guaranteed every accused person the right to fair trial, a right that was non-derogable. However, in any criminal justice system, there was a tension between public interest to bring criminals to justice on the one hand, and, the equally greater public interest in ensuring that justice was manifestly done to all. What the Constitution demanded was that an accused be given a fair trial. In that regard, article 50(2) applied to accused persons facing trial. None of the petitioners or the interested parties supporting the petition, or persons on whose behalf the instant petition was brought, had demonstrated that they had been charged under the impugned provisions before any court or had a pending complaint against them before a police station to warrant the invocation of article 50(2). Accordingly, the petitioners’ argument that their right to a fair trial had been denied, violated, infringed or was threatened failed.
  36. Article 29 combined the right to freedom and security of the person with the right to be free from bodily and psychological harm. It was essentially intended to protect the physical integrity and dignity of an individual. The right not to be subjected to torture in any manner or not to be treated or punished in a cruel or degrading manner were components of the right to freedom and security of the person. Those components were inviolable under article 25(a) of the Constitution, and therefore, no law could stand if it sought to limit such right or freedom. Weighing the petitioners’ alleged infringements, violations and threat vis-à-vis article 29, the impugned provisions did not apply exclusively to the petitioners.
  37. The petitioners in petition 234 of 2016 cited violation of article 32 which guaranteed the right to freedom of conscience, religion, thought, belief and opinion. However, no evidence was led or submission made in support of that allegation.
  38. The Bill of Rights was an integral part of Kenya’s democratic state and was the framework for social, economic and cultural policies. Article 19 appreciated that the Bill of Rights was the cornerstone of democracy in Kenya. It enshrined the rights of all people and affirmed the democratic values of human dignity, equality and freedom. The Constitution entrenched respect for human dignity, the achievement of equality and the advancement of human rights and freedoms, as the foundational values. Article 28 provided for the right to inherent dignity and the right to have that dignity respected and protected.The article did not define the word “dignity.”
  39. The importance of dignity as a founding value of the constitution could not be overemphasized. Recognizing a right to dignity was an acknowledgment of the intrinsic worth of human beings: human beings were entitled to be treated as worthy of respect and concern. The right was therefore the foundation of many of the other rights that were specifically entrenched in Chapter 4. Human dignity informed constitutional adjudication and interpretation at a range of levels. It was a value that informed the interpretation of many, possibly all, other rights. Human dignity was also a constitutional value that was of central significance in the limitations analysis. Dignity was not only a value fundamental to the Constitution; it was a justiciable and enforceable right that had to be respected and protected. In many cases, however where the value of human dignity was offended, the primary constitutional breach occasioned might be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour. So important was the right not to be subjected to cruel, inhuman or degrading treatment or punishment that under article 25 of the Constitution, it was one of the non-derogable rights.
  40. Article 31 on its part guaranteed the right to privacy of the person, home or property not to be searched. It had been settled, insofar as privacy was concerned, that that right became more powerful and deserving of greater protection, the more the intrusion it was into one’s intimate life. There was a connection between an individual’s right to privacy and the right to dignity. Privacy fostered human dignity insofar as it protected an individual’s entitlement to a sphere of private intimacy and autonomy. The right to equality and dignity were closely related, as were the rights of dignity and privacy. In that regard, the Constitution placed human dignity and equality as the central theme to Kenya’s constitutional order. The determination of whether an invasion of the common law right to privacy had taken place was a single enquiry. It essentially involved an assessment as to whether the invasion was unlawful.
  41. When the court was confronted with a claim of violation of a fundamental right, and a contention was made that there was no violation or that the right was limited, it was important to determine whether indeed there was an infringement, or a limitation, which was justifiable under article 24. That was because underarticle 165(3)(b)(d) as read with article 23, the mandate of the court was to determine the question whether a right or fundamental freedom in the Bill of Rights had been denied, violated, infringed or threatened, or, whether any law was inconsistent with or in contravention of the Constitution.
  42. When the constitutionality of legislation was challenged, a court ought first to determine whether, through the application of all legitimate interpretive aids, the impugned legislation was capable of being construed in a manner that was constitutionally compliant. The Constitution required a purposive interpretative approach. The technique of paying attention to context in statutory construction was required by the Constitution. The Constitution introduced a mandatory requirement to construe every piece of legislation in a manner that promotes the spirit, purport and objects of the Bill of Rights. The purpose of a statute played an important role in establishing a context that clarified the scope and intended effect of a law.
  43. A contextual or purposive reading of a statute had to of course remain faithful to the actual wording of the statute. When confronted with legislation, which included wording not capable of sustaining an interpretation that would render it constitutionally compliant, courts were required to declare the legislation unconstitutional and invalid. As it stood, that exposition was generally accepted, but it had to be said that context was everything in law, and obviously one needed to examine the particular statute and all the facts that gave rise to it. It was indeed an important principle of the rule of law, which was a foundational value of the Constitution, that the law be articulated clearly and in a manner accessible to those governed by it. A contextual interpretation of a statute, therefore, had to be sufficiently clear to accord with the rule of law. In analysing the impugned provisions it was important to be mindful of the imperative to read legislation in conformity with the Constitution, but only to do so when that reading would not unduly strain the provisions.
  44. Foreign jurisprudence was of persuasive value because it showed how courts in other jurisdictions have dealt with the issues before the court. At the same time, it was important to appreciate that foreign case law would not always provide a safe guide for interpretation of the Constitution.
  45. When developing local jurisprudence in matters that involved constitutional rights, the court should exercise caution in referring to foreign jurisprudence and develop its common law in a manner that promotes the values and principles enshrined in the Constitution. Whereas citation and reliance on persuasive foreign jurisprudence was valuable, foreign experiences and aspirations of other countries should rarely be invoked in interpreting the Kenya Constitution. The progressive needs of the Kenyan Constitution were different from those of other countries.
  46. In the instant matter the question was whether criminalization of sodomy between adults in private infringes the right to privacy and dignity. Section 162 and 165 of the Penal Code prohibited unnatural offences in the form of carnal knowledge against the order of nature and indecent practices between males, whether in public or in private. The Bill of Rights guaranteed every person’s rights and fundamental freedoms. In that regard, article 19 was clear that rights and fundamental freedoms in the Bill of Rights belonged to each individual and were not granted by the State; did not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they were inconsistent with the Constitution; and, were subject only to the limitations contemplated in the Constitution. Nonetheless, the Bill of Rights permitted limitation in certain instances.
  47. The petitioners’ case was hinged on the interpretation of articles 28 and 31 of the Constitution. Article 259(1) required the courts to interpret the Constitution in a manner that promoted its purposes, values and principles; advances the rule of law and the human rights and fundamental freedoms in the Bill of Rights; permitted the development of the law; and contributed to good governance.
  48. The rights under articles 28 and 31 were not absolute. Article 24(1) of the Constitution permitted limitation by law; the limitation should however be reasonable and justifiable in an open and democratic society. It was undeniable that the limitation was by law. The question was whether the limitation was reasonable and justifiable.
  49. The values and principles articulated in the preamble to the Constitution, article 10, 159 and 259 reflect the historical, economic, social, cultural and political realities and aspirations that were critical in building a robust, patriotic and indigenous jurisprudence for Kenya. The Constitution was the point of reference in any determination. The preamble to the Constitution acknowledged ethnic, cultural and religious diversity, the nurturing and protecting the wellbeing of the individual, the family, communities and the nation, a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.
  50. Article 4(2) provided that the Republic of Kenya was a multi-party state founded on the national values and principles of governance in article 10.Essentially, that affirmed that the progress of the Kenyan nation and the realization of the aspirations of its citizens were predicated on the institutionalization and infusion of these values into all segments of the Kenyan society.In that regard, article 11 further recognized culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and the nation. Article 19 appreciated that the Bill of Rights was an integral part of Kenya’s democratic state and was the framework of social, economic and social policies.
  51. Any interpretation regarding the petitioners’ rights would not exclude other values recognized in the Constitution. A holistic reading of the Constitution, the Final Constitution of Kenya Review Commission (CKRC) and Committee of Experts (CoE) Reports left no doubt that those values and principles informed the constitution making process and ultimately the Constitution which was endorsed by Kenyans in the referendum. It was common ground that during the Constitution making process, the issue of same sex marriage was one of the issues that arose, discussed, and a recommendation was made outlawing same sex marriage. The Final CKRC Report recommended the recognition of marriage only between individuals of the opposite sex and the outlawing of same sex unions.
  52. The deliberations culminated in article 45 which provided that the family was the natural and fundamental unit of society and the necessary basis for social order, and should enjoy the recognition and protection of the State; and, that every adult had a right to marry a person of the opposite sex, based on the free consent of the parties. In interpreting the Constitution, the article should not be unduly strained and the court should avoid excessive peering at the language to be interpreted without sufficient attention to the historical contextual scene, which included the political and constitutional history leading up to the enactment of a particular provision.
  53. The petitioners advanced the argument that sexual orientation was innate, that they were born that way and that was the way they expressed themselves and therefore they should be allowed to express themselves the way they knew best. However, the expert evidence tendered by both sides was unanimous that there was no conclusive scientific proof that LGBTIQ people were born that way. If the petitioners were born that way, they had rights like everyone else. In appreciating that position the court should uphold the spirit and intention of the Constitution.
  54. The impugned provisions had not violated the Constitution or the petitioner’s rights to dignity and privacy. If the Court was persuaded that the petitioners’ rights were violated or threatened on grounds of sexual orientation, it was difficult to rationalize that argument with the spirit, purpose and intention of article 45(2) of Constitution.
  55. Article 45(2) only recognized marriage between adult persons of the opposite sex. Decriminalizing same sex on grounds that it was consensual and was done in private between adults, would contradict the express provisions of article 45(2). The petitioners’ argument that they were not seeking to be allowed to enter into same sex marriage was immaterial given that if allowed, it would lead to same sex persons living together as couples. Such relationships, whether in private or not, formal or not would be in violation of the tenor and spirit of the Constitution.
  56. Section 3(1) of the Marriage Act defined marriage as the voluntary union of a man and a woman. Even where there was no formal marriage, the Act recognized cohabitation as an arrangement in which an unmarried couple lived together in a long-term relationship that resembled a marriage. The constitutionality of that section had never been challenged. Therefore, decriminalizing the impugned provisions would indirectly open the door for unions among persons of the same sex. If that were to be allowed, it would be in direct conflict with article 45(2).
  57. Numerous decisions from different foreign jurisdictions had decriminalized provisions similar to Kenya’s. However persuasive those decisions could be, they were not binding to the High Court. Courts across the world were divided on the issue. Even where it had been allowed, it had not been unanimous. A country that had a provision the equivalent of Kenya’s article 45(2) and had decriminalized similar provisions was not found.
  58. All laws in existence as at August 27, 2010 had to be construed with alterations, adaptations, qualifications and exceptions necessary so as to conform to the Constitution. Nonetheless, the issue before the instant court was alive during the constitution making process, and, therefore, if Kenyans desired to recognize and protect the right to same sex relationships, nothing prevented them from expressly doing so without offending the spirit of article 45.
  59. Inasmuch as the Court of Appeal in the Non-Governmental Organizations Coordination Board v EG & 5 others (2019) eKLR agreed with the High Court that sexual orientation could be read into article 27(4) of the Constitution as one of the prohibited grounds for discrimination, the Court was emphatic that the reading in would depend on the circumstances of each case. The circumstances of the instant case did not permit the reading in because to do so would defeat the purpose and spirit of article 45(2) of the Constitution.
  60. The desire of Kenyans, whether majoritarian or otherwise were reflected in the Constitution. The views of Kenyans could not be ignored given the clear and unambiguous provisions in article 45 (2). While courts could not be dictated to by public opinion, they would still be loath to fly in the face of such opinion. Where the will of the people was expressed in the Constitution, it represented societal values, which had to always be a factor in considering constitutional validity of a particular enactment where such legislation sought to regulate conduct, private or public. In Kenya, those views were clearly expressed in article 45(2).
  61. Looking at the impugned provisions vis-à-vis article 45(2), the provisions had not offended the right to privacy and dignity espoused in articles 28 and 31 of the Constitution. Articles 28 and 31 could not be read in isolation from article 45(2). Unless article 45(2) was amended to recognize same sex unions, it was difficult to agree with the petitioners’ argument, that, there could be safe nullification of the impugned provisions, whose effect would be to open the door for same sex unions and without further violating article 159 (2)(e) which enjoined the court to protect and promote the purpose and principles of the Constitution.
  62. The petitioners’ attack on the constitutional validity of sections 162 and 165 of the Penal Code was not sustainable. The impugned sections were not unconstitutional. Accordingly, the consolidated petitions had no merit.
Petition dismissed, each party to bear their own costs.
Kenya Law
Case Updates Issue 022/2019
Case Summaries

CIVIL PROCEDURE AND PRACTICE Delay in service of notice of appeal and lack of record of proceedings in the record of appeal are not fatal to the appeal

Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others [2019] eKLR
Petition (Application) 38 of 2018
Supreme Court of Kenya
D K Maraga, CJ & P, M K Ibrahim, S N Ndungu, S C Wanjala & I Lenaola, SCJJ
April 29, 2019
Reported by Chelimo Eunice

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Civil Practice and Procedure-appeals-notice of appeal-filing and service of notice of appeal- time allowed for filing and serving a notice of appeal- what was the import of timely service of a notice of appeal-whether delay in service of a notice of appeal rendered the appeal fatally defective- where it was claimed that service of the notice of appeal would not be effected due to the party’s financial constraints-whether the Court had discretion to excuse the delay in serving of the notice of appeal-whether service of a notice of appeal could be tied to the financial disposition of an intended appellant.
Civil Practice and Procedure-appeals-appeals to the Supreme Court-record of appeal-contents of a record of appeal-whether failure to include the record of proceedings of the appellate court in the record of appeal automatically rendered the appeal fatal-whether the Court had discretion to exclude a document from the record of appeal-where failure to file record of proceedings of the Court of Appeal in the record of appeal could not be attributed to the fault of the appellant, but the delay at the Court of Appeal registry in typing the proceedings- whether in the circumstances, the Court would strike out the record of appeal-Supreme Court Rules, 2012, rule 33(4) & (5).
Civil Practice and Procedure-appeals-appeals to the Supreme Court-components of an appeal to the Supreme Court- what constituted a competent appeal before the Supreme Court-whether lack of record of proceedings of the Court of Appeal was fatal to the record of appeal-Supreme Court Rules, 2012, rule 33(1).

Brief facts:
On September 21, 2018, the Court of Appeal dismissed the appellant’s appeal for lack of jurisdiction. Aggrieved by the dismissal, the appellant moved to the Court on appeal. Her petition of appeal was dated and filed on even date of October 26, 2018. Upon being served with the petition, the 1st respondent filed the instant application seeking the striking out of the appellant’s notice of appeal for lack of timely service and the record of appeal for lack of proceedings of the Court of Appeal. The 1st respondent argued, among others, that failure to timely effect service prejudiced her as she was unable to adequately prepare for the hearing of the appeal promptly and that such failure to comply with the mandatory provisions of the Supreme Court Rules, 2012 rendered the notice of appeal fatally defective.
The appellant opposed the application, arguing that the delay in service be excused as the same was occasioned by her financial constraint as she was not certain whether she would file her appeal or not. As regards the record of appeal, the appellant argued that an appeal to the Court was not instituted by service of the notice of appeal on the respondents, but rather by filing a petition of appeal, a record of appeal and payment of the prescribed fees, which she promptly did and blamed the Court of Appeal registry for delaying in typing the proceedings.

Issues:

  1. Whether the delay in service of the notice of appeal rendered an appeal Supreme Court fatally defective.
  2. Whether lack of record of proceedings of the Court of Appeal was fatal to the record of appeal.
  3. What constituted a competent appeal before the Supreme Court?
  4. What were the contents of a record of appeal and whether the Supreme Court had discretion to exclude a document from the record of appeal? Read More..

Relevant provisions of the Law
Supreme Court Rules, 2012;
Rule 33(1);
“An appeal to the Court shall be instituted by lodging in the registry within thirty days of the date of filing of the notice of appeal –

a. a petition of appeal;
b. a record of appeal; and
c. the prescribed fee”

Rule 33(5);
“The Court may, on the application of any party, direct which documents or parts of documents should be excluded from the record and an application for such direction may be made orally”

Held :

  1. While the notice of appeal was timely filed, the same was not served on the respondents until 19 days later, after the lapse of the 7 days provided for service of the same.
  2. Notice of appeal, being an important document, the law provided on when it ought to be filed and served. Its service was crucial. It had tobe filed and served in accordance with the Supreme Court Rules, 2012 (the Rules). If it was to serve its legitimate role as a notice giver to the respondents, then it could not be filed and not served. Thus, the appellant’s explanation that she was awaiting the availability of funds before serving the notice of appeal would not stand. With total regard to financial constraints that a party would face, service of a notice of appeal could not be tied to the financial disposition of an intended appellant. In any event, the filing of a notice of appeal was not an affirmation that an appeal had to be filed. One would lodge a notice of appeal but decide not to file the appeal.
  3. The 30 days within which to file an appeal after the filing of a notice of appeal were not only meant for the intended appellant to sufficiently prepare his/her appeal, but also to give him/her ample time to consider whether indeed he/she wanted to pursue the appeal or not. It gave time to a party to digest a court’s decision and even seek legal advice. However, during that time, the notice of appeal ought to be timely served.
  4. The respondents made no sufficient case for prejudice. It was not true that timely service of a notice of appeal helped the respondents prepare for the case against them. Until an appeal was filed, that was when a party could know or be expected to know the case against him and legitimately prepare. For without an appeal, there could be no case against a party before the Supreme Court. Hence, one could not say that failure to serve him/her with a notice of appeal prejudiced him/her not to prepare for his/her defence for there were as of yet no allegations against him. A notice of appeal was as it were, a statement of intent.
  5. Courts should never provide succor and cover to parties who exhibited scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. However, in enforcing adherence to the Rules, courts had discretion in the interest of justice. The nature of the subject matter before the Court was one of constitutional interpretation. It went to the core of the jurisdiction of the Court of Appeal, the question being whether the Court of Appeal had jurisdiction to hear and determine a second appeal in an election petition concerning the election of a Member of County Assembly. Consequently, the Court excused the delay in serving of the notice of appeal, noting that the appeal was timely filed and served. Failure to serve the notice of appeal within the 7 days required in the matter was not fatal.
  6. As to what constituted a competent appeal before the Supreme Court, the Court referred to rule 33(1) of the Rules. The use of the word shall in the said rule suggested the mandatory nature of the rule, requiring strict adherence to the components of the rule. Thus, a strict reading of the said rule 33(1) led to the conclusion that an appeal comprised the petition of appeal, the record of appeal, and the prescribed fee.
  7. There was a petition of appeal duly filed upon payment of the prescribed fee and a record of appeal. Hence, prima facie, there was an appeal on record. However, the record of appeal lacked the record of proceedings of the Court of Appeal. Under rule 33(4) of the Rules, the contents of a record of appeal from a court or tribunal in its appellate jurisdiction contained the following document; the certificate, if any, certifying that the matter was of general public importance; the memorandum of appeal; the record of proceedings; and the certified decree or order. Under rule 33(6) of the Rules, a document omitted would be filed in a supplementary record without leave of court within fifteen days of filing of the record of appeal and subsequently with leave of court, the same document would be filed.
  8. Failure to include the record of proceedings of the Court of Appeal in the record of appeal did not automatically render the appeal filed before the Court fatal. For if the law contemplated that such an omitted document would be filed later, the same law could not be said to render a record of appeal with that omission out rightly fatal. However, where a required document lacked in the record of appeal, devoid of a sufficient explanation for the omission, was a ground for the striking out of that record of appeal.
  9. There was no evidence of any correspondence between the Court of Appeal registry and the appellant between the time of the first letter requesting for the proceedings and the time of filing the appeal in the Court. The letter of November 1, 2018 was filed after the lodging of the appeal and the one on November 15, 2018 was filed after being served with the instant application to strike out the record of appeal. Hence, the appellant’s efforts and the registry’s response(s) between the period of September 27, 2018 and October 26, 2018 were not well explained. Unfortunately, the respondents neither submitted to the lack of that information, nor did they confirm whether the proceedings were ready for collection in the one month’ period. Nonetheless, the three letters demonstrated that there was persistent inquiry at the Court of Appeal registry by the appellant for the proceedings.
  10. Lack of filing of the record of proceedings of the Court of Appeal in the record of appeal could not be attributed to the fault of the appellant, but the delay at the Court of Appeal registry in typing the proceedings. Further, rule 33(5) of the Rules connoted that the Court would exclude a document from the record. Once a record of appeal had been filed, the Court had discretion to determine whether the matter could sufficiently proceed without particular documents.
  11. The absence of the proceedings of the Court of Appeal was not fatal to the hearing and determination of the instant matter. Thus, the respondents’ invitation to strike out the record of appeal on that basis was rejected.
  12. Since the whole of section 14 of the Supreme Court Act had been declared unconstitutional, section 14(5) of the Supreme Court Act could not be a basis for invoking the Court’s inherent powers, as urged by the appellant.

Application dismissed with no order as to costs.

APPEALS Factors to consider in determining whether to allow an application for extension of time to file an appeal at the Supreme Court

Harun Osoro Nyamboki v Peter Mujunga Gathuru [2019] eKLR
Application No. 6 of 2019
Supreme Court of Kenya
P M Mwilu DCJ &VP; M K Ibrahim, S Wanjala, N S Ndungu, & I Lenaola, SCJJ
April 30, 2019
Reported by Kakai Toili & Flora Weru

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Appeals-appeals to the Supreme Court-timelines for filing appeals-extension of time for filing appeals-factors to consider-what were the factors to consider in determining whether to allow an application for extension of time to file an appeal at the Supreme Court

Brief facts:
The applicant filed the instant application seeking an extension of time to file an appeal out of time. The applicant contended that the delay in filing the notice of appeal was occasioned by the mistaken knowledge and belief that his former advocates had filed the notice of appeal in the Court of Appeal, and that he should not be punished for counsel’s error. The applicant also contended that the applicant only became aware of the advocates’ failure to file the notice in December 2018.

Issue:

  1. What were the factors to consider in determining whether to allow an application for extension of time to file an appeal? Read More..

Held :

  1. In determining an application for extension of time to file an appeal out of time, the Court had to consider;
    1. whether the explanation given for any delay was reasonable and credible;
    2. whether there also existed extenuating circumstances to enable the Court exercise its unfettered jurisdiction; and
    3. that the delay, in any event, should not be so inordinate as to leave no doubt, that an applicant had been slothful, and filed such an application as an after-thought.
  2. In the instant case, the 4 year and 2 month delay had neither been adequately explained, nor was the justification offered by the applicant credible. The delay was both untenable and unreasonable.

Application dismissed, applicant to bear costs.

FAMILY LAW Whether all spouses have to give consent for the disposition of matrimonial property in polygamous unions

EKN v AS & 2 others [2019] eKLR
Environment and Land Case 443 of 2016
Environment and Land Court at Nakuru
S. Munyao, J
March 28, 2019
Reported by Chelimo Eunice

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Family Law- matrimonial property-spousal consent-consent to sell matrimonial property- why was spousal consent necessary-whether matrimonial property would be sold without the consent of all spouses in a polygamous union-circumstances when consent of a spouse(s) would be dispensed with-whether section 12 (1) of the Matrimonial Property Act which dealt with consent in monogamous unions would be applied to polygamous unions-where one spouse refused to give consent for the sale of matrimonial property- Constitution of Kenya, 2010, article 45(3); Matrimonial Property Act, section 12 (1).
Family Law- matrimonial property- meaning of matrimonial property-ownership of matrimonial property-ownership of matrimonial property acquired by the husband and the 1st wife before marriage of the other wives-whether the other wives and their children would derive any benefit from such properties-equality in ownership and division of matrimonial property in a polygamous union-Constitution of Kenya, 2010, article 45(3).

Brief Facts:
The plaintiff sued the defendants for specific performance on a land sale agreement. The 2nd defendant (the vendor) was polygamous with three wives. The plaintiff averred that the 2nd defendant and the 3rd defendant (the vendor’s 2nd wife) sold to him two parcels of land and having paid the consideration, 2nd defendant proceeded to hand over the title deeds and all relevant documents to have the land transferred to him. When the plaintiff went to the Land Registry to book a date for appearance before the Land Control Board, he was informed that the 1st defendant (the vendor’s 1st wife) had lodged a restriction on both parcels of land. It was the position of the plaintiff that the defendants acted dishonestly in the whole transaction and believed that they had colluded to defraud him.
The 1st defendant opposed the suit arguing that the two suit properties were registered in trust for her and her children, long before the 3rd defendant joined the family. She averred that the sale agreement was void in law for lack of her consent despite being in sole occupation of the parcels of land from the year 1975. The 2nd and 3rd defendants pleaded inter alia that in good faith and in honour of the terms of the agreement with the plaintiff, they undertook all the necessary steps to supply the plaintiff with the completion documents and obtain the necessary consent from the LCB but for the misfortunes authored by the 1st defendant; that the 3rd defendant gave consent for sale of the property but the 1st defendant refused to give consent, whereas the 3rd wife was not interested in the sale; that the 2nd defendant, being the absolute proprietor of the land parcels, procedurally and in good faith, subdivided those portions of land and that the 1st defendant had no interest in the suit land parcels hence her consent was not needed.

Issues:

  1. What was matrimonial property and whether a matrimonial home in a polygamous union comprised of matrimonial property?
  2. Whether in polygamous unions, all spouses have to give consent for sale of matrimonial property or part of matrimonial property.
  3. What were the circumstances when consent of a spouse(s) would be dispensed with?
  4. Whether section 12 (1) of the Matrimonial Property Act which dealt with consent in monogamous unions would be applied to polygamous unions.
  5. What was the import of spousal consent when dealing with matrimonial property?Read More...

Relevant provisions of the Law
Matrimonial Property Act;
Section 6;
Meaning of matrimonial property:-
(1) For the purposes of this Act, matrimonial property means—
(a) The matrimonial home or homes;
(b) household goods and effects in the matrimonial home or homes; or
(c) any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
(2) Despite subsection (1), trust property, including property held in trust under customary law, does not form part of matrimonial property.
(3) Despite subsection (1), the parties to an intended marriage may enter into an agreement before their marriage to determine their property rights.
(4) A party to an agreement made under subsection (3) may apply to the Court to set aside the agreement and the Court may set aside the agreement if it determines that the agreement was influenced by fraud, coercion or is manifestly unjust.

Held:

  1. Under section 93 of the Land Registration Act, where property was obtained during the subsistence of a marriage, it was to be dealt with under the Matrimonial Property Act (the Act). Matrimonial home meant any property that was owned or leased by one or both spouses and occupied or utilized by the spouses as their family home and included any other attached property. Matrimonial property on the other hand was defined in section 6 of the Act.
  2. The property in issue was acquired by the parties after they had been married. The property would be matrimonial property because it was a matrimonial home as defined by section 2 of the Act, as that was where the 1st defendant had been living since the year 1978 or thereabouts, and that was where her family house was located. A matrimonial home was part of what was to be considered matrimonial property as defined by section 6 (1) (a) of the Act.
  3. Section 12 of the Act made special provisions relating to matrimonial property. Section 12 (1) of the Act was relevant in determining the question whether a spouse had to give consent for the sale of matrimonial property. However, the said section only made provision for a monogamous union, and in such instance, there needed to be consent of both spouses for matrimonial property to be alienated including an alienation by way of sale. There was no explicit provision in the Act that related to the sale of matrimonial property in a polygamous union. That was a lacuna that Parliament needed to address so that the issue was clear and not left in doubt. For a case of a polygamous marriage, the provisions of section 12 (1) of the Act could not apply.
  4. If it was the position that consent was required of the other spouse in a monogamous union, then by analogy, consent would be required of all spouses in a polygamous union, unless there was clear demonstration that the property did not constitute matrimonial property, or that through custom, because customary law was applicable under section 11 of the Act, or other legal provision, the other spouses could not have any recognizable interest in such property and their consent was thus not necessary.
  5. A spouse was entitled to relief and entitled to approach court for an order to proceed with the disposition in issue, if he or she felt that the other spouse or spouses, were either not in a position to give consent, or were unreasonably withholding consent. There would be liberty for one to approach court to dispense with consent of a spouse, and if the court was persuaded that the sale of the property was in the best interests of the union, allow the disposition to proceed without the consent of a spouse, depending on the surrounding circumstances of the case.
  6. The intention of the law was not to curtail all dispositions irrespective of the circumstances, for the sole reason that the other spouse (or spouses) had refused to give consent. The intention of making it mandatory for one to seek consent of the other spouse was so that one spouse did not make unilateral decisions on matters affecting both or all spouses. That requirement was also aimed at preventing one spouse being rendered homeless, or without property, because of the single unilateral act of the other spouse. The aim was to enhance consultation within marriage in issues related to disposal of matrimonial property and also to protect the vulnerable spouse. It was an implementation of article 45 (3) of the Constitution, which provided that parties to a marriage were entitled to equal rights. But equal rights were not the same as unreasonable rights. A spouse ought to be entitled to proceed with the disposition if he/she demonstrated that the other spouse was unreasonably withholding consent.
  7. Spousal consent ought not to be unreasonably withheld and the court would need to look into the surrounding circumstances of each case to see if spousal consent could be dispensed because it was being unreasonably withheld.
  8. The Land Act, Land Registration Act and Matrimonial Property Act, did not also address the issue on how a family ought to live and plan its affairs. The decisions of where a family was to reside, which land to farm, which land the children would utilize, what exact locations the children ought to settle at, what and where to set aside for special uses, and such like things, were not answers that one would find by looking at those statutes. Families were dynamic and what worked for one family could not work for another.
  9. The element of consultation was important but it would not be the case that all spouses agree with the proposed arrangements. Courts ought to be slow in entering into the sphere of making plans for families on how they should live. Those were dynamics that had to be left to families to sort out although if the families could not sort them out, then there being no option, courts would need to step in and resolve the dispute one way or another. But that had to be a last recourse for it was best that families try and resolve their disagreements internally for home grown solutions.
  10. Strictly speaking, the 1st defendant needed to have given consent to the sale in issue, but looking at all surrounding circumstances, she was unreasonably withholding consent and her consent could thus be waived. The 2nd defendant, acting as head of the house in the traditional set up that the family appeared to live in, had already settled his wives in different parcels of land and there was no evidence that any of them had any problem with that. The 2nd defendant seemed to have been fair to every one of his families.
  11. What the 2nd defendant sold was what he had assigned to himself and the 3rd defendant. He did not sell what he had apportioned to the 1st defendant. Further, the sale was aimed at safeguarding and protecting his family from conflict. There was no bad faith or any ill motive in the 2nd defendant’s decision to sell the suit parcels.
  12. If the sale was not to proceed, it meant that the 2nd defendant had to find the amount paid as consideration, which he did not have, to refund the plaintiff. His property, would be at risk of being sold, so as to raise the money. He would be forced to sell what he bought with the amount and resettling back at the suit land, and hence would also face the initial conflict from the children of the 1st defendant.
  13. The 1st defendant was misconceived in thinking that everything that was owned by her husband belonged exclusively to her and her children, and that the 2nd and 3rd wives and their children, ought not derive any benefit from those properties. The 1st defendant’s rights and entitlements in all respects as a wife to the 2nd defendant, also fully apply to the 2nd and 3rd wives as they too were, in equal measure, the 2nd defendant’s wives. In any case, the 2nd and 3rd wives had been married for close to 40 and 20 years respectively, and it would not be claimed that they had suddenly crawled out of the woodwork to unfairly enjoy the fruits of the hard labour of the 1st defendant. They could not just be told that they and their children could have nothing. There ought to be equity in families and there would be no equity if their families were discarded. In any case, if the 2nd defendant was to die, his property would be distributed almost equally to all his three houses following the law of succession. It would not make much sense to say that because he was alive, the other families could not benefit but when he was dead, then they could benefit.
  14. There was no good reason why the 1st defendant placed a restriction in the suit properties. The 1st defendant placed the restriction for no other reason but because she was jealous of the other wives, and greedy too, for she wanted everything for herself. Justice would be served if the transaction proceeded as the plaintiff wanted.

Suit allowed with no orders as to costs.
Orders:

  1. The plaintiff and the 2nd defendant were at liberty to proceed to conclude the sale transaction that they entered into on April 2, 2016 and were free to proceed to seek all requisite consents and execute all requisite documents to transfer to the plaintiff the suit parcels.
  2. Declaration issued that the 1st defendant had unreasonably declined to give consent to the 2nd defendant to proceed with the sale agreement of April 2, 2016 and her consent to the transaction was dispensed with.
  3. Order issued that the restriction placed by the 1st defendant in the register of the suit parcels be lifted and barring the 1st defendant from registering any restriction or in any way attempting to stop the completion of the sale transaction between the plaintiff and the 2nd defendant.
  4. Permanent injunction issued restraining the 1st defendant, her servants, or assignees from entering, being upon, cultivating, utilizing, or in any other way interfering with the plaintiff’s occupation of the suit parcels.

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