The threshold for determining unexplained assets in corruption cases
Stanley Mombo Amuti v Kenya Anti-Corruption Commission  eKLR
Civil Appeal 184 of 2018
Court of Appeal at Nairobi
P N Waki, S G Kairu & J Otieno-Odek JJA
May 10, 2019
Reported by Kakai Toili
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Statutes - interpretation of statutes - interpretation of section 26 of the Anti-Corruption and Economic Crimes Act - notice to furnish the Kenya Anti-Corruption Commission with a statement of a suspect’s property - what was the nature of the notice to furnish the Kenya Anti-Corruption Commission with a statement of a suspect’s property - whether evidence recovered pursuant to a notice to furnish the Kenya Anti-Corruption Commission with a statement of a suspect’s property could be used in criminal proceedings-Anti-Corruption and Economic Crimes Act, 2003, sections 26, 30 and 55
Jurisdiction – jurisdiction of the Court of Appeal – appellate jurisdiction - jurisdiction to interfere with the exercise of a trial court’s discretion - what was the role of the Court of Appeal as a first appellate court and when would the Court of Appeal could interfere with a trial court’s exercise of discretion
Evidence Law - burden and standard of proof - burden and standard of proof in determining unexplained assets - where a person was alleged to have assets disproportionate to his/her legitimate sources of income - who bore the burden of proof where a person was alleged to have assets disproportionate to his/her legitimate sources of income - what was the threshold for determining unexplained assets where a public servant had assets disproportionate to his/her legitimately known sources of income - Anti-Corruption and Economic Crimes Act, 2003, sections 2 & 55; Evidence Act, section 112
Evidence Law – witnesses - calling of material witnesses to testify - failure of calling material witnesses to testify - effect of - what was the effect of failure to call a material witness to testify in a corruption case - Anti-Corruption and Economic Crimes Act, 2003, section 55; Evidence Act, section 112
Constitutional Law - rights and fundamental freedoms - right to property - nature of - where a person was asked to explain the source of assets disproportionate to his/her legitimately known sources of income - what was the nature of the right to property where a person was asked to explain the source of assets disproportionate to his/her legitimately known sources of income - Constitution of Kenya, 2010, article 40; Anti-Corruption and Economic Crimes Act, 2003, sections 26 & 55(2)
The respondent issued a notice under section 26 of the Anti-Corruption and Economic Crimes Act, 2003 (ACECA) requiring the appellant to furnish a statement of his property. The respondent in the said notice claimed that the appellant’s various assets were estimated at tens of millions of Kenya Shillings and were disproportionate to his salary. Considering that the appellant’s salary from employment in the public service was his only source of income during the period within which he acquired the said assets, the respondent suspected the appellant of engaging in corruption and economic crimes. The appellant was required to explain the source of cash deposits made to his accounts. The notice required the appellant to explain his wealth for 16 years being the period 1992 to 2008. It was contended that the respondent unlawfully altered the period of investigation and inquiry to 10-months namely from September 2007 to June 2008.
The appellant complied with the notice and gave explanation for his wealth and assets. Dissatisfied with the explanation, the respondent moved to the Trial Court seeking orders for forfeiture of the unexplained assets. The Trial Court held that the appellant was in possession of unexplained assets valued Ksh. 41,208,000/=. A decree was issued that the appellant was liable to pay the Government of Kenya the sum of Ksh. 41,208,000/=. Aggrieved by the Trial Court’s decision, the appellant lodged the instant appeal.
- What was the threshold for determining unexplained assets where a public servant had assets disproportionate to his/her legitimately known sources of income?
- hat was the nature of the notice to furnish the Kenya Anti-Corruption Commission with a statement of a suspect’s property under section 26 of Anti-Corruption and Economic Crimes Act?
- Whether evidence recovered pursuant to a notice to furnish the Kenya Anti-Corruption Commission with a statement of a suspect’s property could be used in criminal proceedings.
- What was the role of the Court of Appeal as a first appellate court and when would the Court of Appeal could interfere with a trial court’s exercise of discretion?
- What was the nature of the right to property where a person was asked to explain the source of assets disproportionate to his/her legitimately known sources of income?
- Who bore the burden of proof where a person was alleged to have assets disproportionate to his/her legitimate sources of income?
- What was the effect of failure to call a material witness to testify in a corruption case?
Relevant Provisions of the Law
Anti-Corruption and Economic Crimes Act
unexplained asset” means assets of a person:
(a) acquired at or around the time the person was reasonably suspected of corruption or economic crime; and
(b) whose value is disproportionate to his known sources of income at or around that time and for which there is no satisfactory explanation.
(1) If, in the course of investigation into any offence, the Secretary is satisfied that it could assist or expedite such investigation, the Secretary may, by notice in writing, require a person who, for reasons to be stated in such notice, is reasonably suspected of corruption or economic crime to furnish, within a reasonable time specified in the notice, a written statement in relation to any property specified by the Secretary and with regard to such specified property:
(a) enumerating the suspected person’s property and the times at which it was acquired; and
(b) stating, in relation to any property that was acquired at or about the time of the suspected corruption or economic crime, whether the property was acquired by purchase, gift, inheritance or in some other manner, and what consideration, if any, was given for the property.
(2) A person who neglects or fails to comply with a requirement under this section is guilty of an offence and is liable on conviction to a fine not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years, or to both.
(3) The powers of the Commission under this section may be exercised only by the Secretary.
(5) If after the Commission has adduced evidence that the person has unexplained assets the court is satisfied, on the balance of probabilities, and in light of the evidence so far adduced, that the person concerned does have unexplained assets, it may require the person, by such testimony and other evidence as the court deems sufficient, to satisfy the court that the assets were acquired otherwise than as the result of corrupt conduct.
(6) If, after such explanation, the court is not satisfied that all of the assets concerned were acquired otherwise than as the result of corrupt conduct, it may order the person to pay to the Government an amount equal to the value of the unexplained assets that the Court is not satisfied were acquired otherwise than as the result of corrupt conduct.
Evidence Act (Cap 80 of the Laws of Kenya)
In civil proceedings when any fact is especially within the knowledge of any party to those proceedings the burden of proving or disproving that fact is upon him.
- The scourge of money laundering, economic crimes and corruption was threatening the moral and social fabric of society. In Kenya, one of the legislative instruments designed to deal with the scourge was the ACECA. In its preamble, ACECA sought to provide for prevention, investigation and punishment of corruption, economic crimes and related offences. ACECA established the Kenya Anti-Corruption Commission(respondent) as a body corporate whose Chief Executive Officer was the Secretary/Director to the Commission.
- Entrenched in ACECA was the concept of unexplained assets which was a legal innovation to combat the vice of doubtful source of wealth, money laundering and suspicious corrupt practices. Underlying the concept was the theme, you failed to satisfactorily explain the lawful source of assets, you forfeited it.
- A notice issued under section 26 of ACECA was a civil investigatory tool aimed at collecting information and data from a person suspected of corruption or economic crime. By virtue of section 55 (9) of ACECA, the provisions of section 55 ACECA were retroactive and a section 26 notice could issue regardless of when the property was acquired. The notice could issue in relation to property acquired before ACECA came into force.
- Evidence recovered pursuant to section 26 of the ACECA on unexplained assets was for civil recovery only. Pursuant to section 30 of ACECA, the material received pursuant to the notice could not be used in criminal proceedings against the respondent (except in certain limited circumstances including prosecution for perjury, or on a prosecution for another offence where the respondent had provided inconsistent evidence).
- The Court’s primary role as a first appellate court was namely: to re-evaluate, re-assess and re-analyze the evidence on the record and then determine whether the conclusions reached by the trial court were to stand or not and give reasons either way.
- The 10-month period from September 2007 to June 2008 was within the 16-year timeline of 1992 to June 2008 stated in the notice dated July 9, 2008. The notice required the appellant to furnish details of the enumerated property and cash deposits for the 16-year period. The greater period included the lesser period and no fresh or new notice was required for the 10-months between September 2007 and June 2008. That lesser period was already within the longer 16-year time-frame. Further, the originating summons at paragraph 4 thereof and at paragraph 10 of its supporting affidavit expressly identified and informed the appellant the period under investigation was September 2007 to June 2008.
- It was not the duty of the Trial Court to identify the period of investigation. Under section 26 of ACECA as read with section 55 of the ACECA, it was the duty of the respondent to identify the period under investigation. The evidence on record identified the period of investigation to be September 2007 to June 2008. Accordingly, the ground and submission that the Trial Court erred in failing to identify the period of investigation had no merit. Likewise, the contestation that the originating summons as filed was fatally defective for being grounded on a 10-month period had no merit.
- The appellant’s right to fair hearing under aof the Constitution as well as his right to be accorded reasonable opportunity to explain the source of the monies recovered as required by section 55 (2) of the ACECA were not violated. The appellant was required to explain the source of cash deposits in his various bank accounts for the period under investigation. It was the appellant who identified the assets in explanation of sources of cash flows in his bank accounts. The appellant had an opportunity to explain the source of those cash assets.
- An appellate court should be very hesitant to assume jurisdiction in cases where a litigant was challenging the exercise of discretion by another court. In the instant matter, under sand of the ACECA, the Trial Court had discretion to decide if the respondent had tendered evidence on balance of probability establishing the appellant had unexplained assets.
- The Trial Court had discretion to let the appellant satisfactorily explain the source of his assets. Interfering with an exercise of discretion on the part of the trial court would be tantamount to directing a court on how to exercise its powers, in essence restraining its liberty. An appellate court could only interfere with exercise of discretion if the appellant could show that in exercise of its discretion:
- the court acted on a whim or that;
- its decision was unreasonable and
- it was made in violation of any law or that;
- it was plainly wrong and had caused undue prejudice to one party.
- In the instant appeal, the appellant had not demonstrated that the Trial Court in permitting the appellant to testify exercised its discretion under sand (6) of ACECA unreasonably, whimsically or injudiciously or that an injustice had occurred or violation of any law had taken place. Accordingly, there was no reason to interfere with the exercise of the discretion by the Trial Court.
- The threshold for determining unexplained assets was provided for in and of the ACECA. A reading of sand established the threshold for existence of unexplained assets to be:
- there had to be set time period for the investigation of a person;
- the person had to be reasonably suspected of corruption or economic crime;
- the person had to have assets whose value was disproportionate to his known sources of income at or around the period of investigation, and
- there was no satisfactory explanation for the disproportionate asset.
- The evidence on record revealed that another offer was made by the appellant to sell the suit property which had already been sold to another person; it was improbable that the appellant would knowingly sell the same property to two different persons. In contract law, when there was total failure of consideration, refund of any monies paid under the contract was due and owing. In the instant matter, if at all the sale did not go through, there was no evidence of refund by the appellant of the cash installments paid as deposit. The two people who wanted to purchase the suit property were not called to testify and throw light on the nature of the cash transactions with the appellant. The appellant neither addressed nor contradicted the specific reasons given by the Trial Court for finding that the sale agreement was suspect and not authentic. There was no reason to interfere with the evaluation of evidence and findings of the Trial Court in relation to the sale agreement with the two people who wanted to purchase the suit property.
- Section 362A of the United Kingdom’s Proceeds of Crime Act 2002 (POCA) on unexplained wealth orderwas to sof the ACECA which lay emphasis on assets being disproportionate to an individual’s known legitimate sources of income. embodied the concept of income requirement guaranteed whereby an individual’s assets should be proportionate to his/her legitimate known source of income.
- The protection of the right to property had socio-political, moral, ethical, economic and legal underpinning. The right protected the sweat of the brow; it did not protect property acquired through larceny, money laundering or proceeds of crime or any illegal enterprise. There was no violation of the right to property if an individual was requested to explain the source of his assets that was disproportionate to his legitimate source of income.
- In the instant matter, the provisions of sand of the ACECA did not violate the right to property as enshrined in aof the Constitution. In any event, constitutional protection of property did not extend to property that had unlawfully been acquired. If it were to be held that the requirement to explain violated the right to property under aof the Constitution, enforcement of a notice issued under sand the requirement to explain the source of disproportionate assets would be rendered nugatory.
- The concept of unexplained assets and its forfeiture under and of ACECA was neither founded on criminal proceedings nor conviction for a criminal offence or economic crime. and re non-conviction based civil forfeiture provisions. The sections were activated as an action against the property itself. The sections required the respondent to prove on balance of probability that an individual had assets disproportionate to his/her legitimately known sources of income. provision for evidentiary burden which was cast upon the person under investigation to provide satisfactory explanation to establish the legitimate origin of his/her assets. That evidentiary burden was a dynamic burden of proof requiring one who was better able to prove a fact to be the one to prove it. in sync with sof the Evidence Act.
- Under of ACECA, the theme in evidentiary burden in relation to unexplained assets was to prove it or lose it. In other words, an individual had the evidentiary burden to offer satisfactory explanation for legitimate acquisition of the asset or forfeit such asset. The cornerstone for forfeiture proceedings of unexplained assets was having assets disproportionate to known legitimate source of income. Tied to that was the inability of an individual to satisfactorily explain the disproportionate assets.
- A forfeiture order under ACECA was brought against unexplained assets which was tainted property; if legitimate acquisition of such property was not satisfactorily explained, such tainted property risked categorization as property that had been unlawfully acquired. The requirement to explain assets was not a requirement for one to explain his innocence. The presumption of innocence was a fundamental right that could not be displaced through a notice to explain how assets had been acquired.
- In the instant matter, the appellant was given reasonable opportunity to explain his disproportionate assets. He gave evidence on oath and tabled documentary evidence, however he did not discharge his evidential burden to offer satisfactory explanation as required under sof the ACECA. A person with lawful income had no trouble proving the legal origin of his or her assets. The law protected only the rights of those who acquired property by licit means. Those who acquired property unlawfully could not claim protection provided by the legal system. It was in that context that of the Constitution provided that protection of the right to property did not extend to property that had been unlawfully acquired.
- Whereas the appellant was under no obligation to call any witnesses to testify on his behalf, there were three crucial individuals that he ought to have called to testify. Those individuals were crucial to corroborate the appellant’s testimony that the named individual lawfully gave him cash in form of friendly loan or installment towards purchase of plot/houses.In civil as in criminal proceedings, the plaintiff (prosecution) was solely responsible for deciding how to present its case and choosing which witnesses to call. In the instant case, the respondent alone bore the responsibility of deciding whether a person would be called as a witness in its case. A court could not ordinarily direct a party to call any witness. Save in exceptional circumstance, a trial court could not call any witness. In the instant case, the appellant’s contestation that the respondent should have called the three individuals as witnesses had no legal foundation. In law, the appellant could not compel the respondent to call a witness to support or rebut the respondent’s case; all that the respondent was obligated to do was call credible and material witnesses to prove its case to the required standard.
- The failure to call a particular witness or voluntarily to produce documents or objects in one's possession was conduct evidence. In principle, failure by a party to call a material witnesses could be interpreted as an indication of knowledge that his opponent's evidence was true, or at least that the tenor of the evidence withheld would be unfavorable to his cause. An inference would not be allowed if a party introduced evidence explaining the reasons for his conduct and reason for failure to call a witness and if the evidence was truly unavailable or shown to be immaterial.
- In the instant case, sof the ACECA stipulated that the person whose assets were in question had to be afforded the opportunity to cross-examine any witness called and to challenge any evidence adduced by the respondent and, had to have and could exercise the rights usually afforded to a defendant in civil proceedings. In the instant matter, the appellant did have opportunity to cross-examine the respondent’s witnesses.
- The appellant did not offer satisfactory explanation as to the source of admitted sum of Ksh. 15.5 million from the alleged Sudanese National; the source of Ksh. 1,000,000/= allegedly for community electricity project; the source of Ksh. 10.9 million and the source of Ksh. 9.5 million for sale of properties. The contestation that the Trial Court erred in applying and interpreting sand of ACECA had no merit. The Trial Court did not err in holding that the admitted cash monies received were part of the appellant’s unexplained assets that should be paid over to the Kenya Government.
Appeal dismissed, no order as to costs.
Case Updates Issue 028/2019
|| The Environment and Land Court has no jurisdiction to determine matters regarding distribution of matrimonial property upon dissolution of a marriage
AKM v NNN  eKLR
HCCC 2 of 2015
High Court at Chuka
R K Limo, J
May 16, 2019.
Reported by Kakai Toili & Flora Weru
Constitutional law – fundamental rights and freedoms – right to equality – equality in marriage - equality in distribution of matrimonial property - whether upon dissolution of a marriage parties were entitled to equal distribution of matrimonial property- Constitution of Kenya article 27
Jurisdiction – jurisdiction of the Environment and Land Court – jurisdiction in matters dealing with division of matrimonial property upon dissolution of a marriage -whether the Environment and Land Court had jurisdiction to determine matters dealing with division of matrimonial property upon dissolution of marriage – Constitution of Kenya article 162 (2) and (3) 165 (3) (a); Civil Procedure Act section 3A; Environment and Land Court Act section 13(2)
Family Law - matrimonial property - division of matrimonial property- factors to consider – contribution - whether upon dissolution of a marriage parties were entitled to distribution of matrimonial property based on their contribution - whether property inherited by a spouse was part of matrimonial property- Matrimonial Property Act section 6 & 7
Evidence Law – burden of proof – burden of proof in matrimonial causes – proof of contribution in acquisition of matrimonial property - failure to prove contribution – effect of - who bore the burden of proving contribution made towards the acquisition of matrimonial property - what was the effect of failure to prove actual contribution in acquiring matrimonial property
Words and Phrases– sub judice – definition of sub judice – a matter before a judge or court where there has been no adjudication or out of court settlement - Black’s Law Dictionary, 10thEdition
The plaintiff was married to the defendant for 27 years and had five issues of marriage. The said marriage had since been dissolved. The plaintiff was an untrained primary school teacher when she got married and later went for training and graduated as a trained P1 teacher. The plaintiff claimed that she contributed financially towards acquisition and development of the matrimonial properties. The plaintiff instituted suit seeking to have equal share of all the listed properties.
- Whether the Environment and Land Court had jurisdiction to determine matters dealing with division of matrimonial property upon dissolution of marriage.
- Who bore the burden of proving contribution made towards the acquisition of matrimonial property?
- What was the effect of failure to prove actual contribution in acquiring matrimonial property?
- Whether property inherited by a spouse was part of matrimonial property.
- Whether upon dissolution of a marriage parties were entitled to equal distribution of matrimonial property.
- Whether upon dissolution of a marriage parties were entitled to distribution of matrimonial property based on their contribution.
Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 45 (3);
(3) Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.
Civil Properties Act
No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
Matrimonial Properties Act
"contribution" as monetary and non-monetary and includes;
a. domestic work and management of the matrimonial home.
b. child care
d. management of family business or property and
e. farm work
Section 6 (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 houses or
c) any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
Subject tosection 6(3), ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.
Where matrimonial property is acquired during marriage—
a) In the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse and
b) In the names of the spouses jointly, there shall be rebuttable presumption that their beneficial interest in the matrimonial property are equal.
- Jurisdiction was critical in any action brought before any court. Jurisdiction was either covered by statute or the Constitution and a court either had jurisdiction to entertain a matter or it did not, there were no 2 ways about it.
- The issue before the Court was division of matrimonial property or put in another way sharing of property acquired by two individuals during subsistence of their marriage. The marriage between the plaintiff and the defendant was dissolved vide Chuka Principal Magistrate's Court Divorce Cause No. 4 of 2012. Matrimonial proceedings for dissolution or other reliefs like maintenance were within the ambit of Magistrate's Court as provided under section 2 of the Marriage Act. The Matrimonial Property Act No.49 of 2013 did not specifically define court but issues of matrimonial properties were determined by the High Court under its inherent jurisdiction as provided under section 3A of the Civil Procedure Act and article 165(3)(a) of the Constitution.
- Jurisdiction of the Environment and Land Court (ELC) was limited by article 162(2) and (3) of the Constitution and section 13(2) of the Environment and Land Court Act No. 19 of 2011(ELC Act). Article 162(2)(b) stated that ELC had the mandate to hear and determine disputes relating to use and occupation and title to land. The provisions of section 13(2) of the ELC Act gave power to ELC to hear and determine disputes relating to inter alia, environment, land use planning, title, boundary disputes, land administration and management, choses in action or other instruments granting enforceable interests in land among other related issues.
- The division of matrimonial property upon dissolution of marriage was outside the purview or the scope of ELC and the relief could not be granted in that court and it was only to that extent that the instant cause though touching on similar properties like the ones mentioned in the cited ELC Court in Embu, was not sub judice. What the instant Court was being called upon to do could only be done in that court. Although the issue of ownership was claimed at the ELC, the claim arose from the contribution made by virtue of marriage and it was not a challenge to the title of listed properties. The relationship between the parties was dissolved in 2015 and therefore the provisions of Matrimonial Properties Act No.49 of 2013 and Marriage Act No.4 of 2014 applied. There was no wisdom in the decision by the plaintiff to mount two separate suits and particularly the action taken before the ELC.
- Whoever alleged had to prove, the onus of proof rested on the plaintiff to prove both monetary contribution made and non-monetary contribution in acquisition and developments of the listed properties. The onus of proof however was subject to a presumption of law under section 14 of Matrimonial Properties Act.
- The following properties were ancestral or were held under customary law namely:-
- Suit property A
- Suit property B
- Suit property C
The provision of section 8(2) of the Matrimonial Property Act specifically precluded such properties from being considered as matrimonial property.
- The claim that suit property C was inherited from the defendant's father on condition that a house be built for the plaintiff who claimed to have met the condition single handedly was not backed by any tangible evidence to enable the Court to consider the said property as part of matrimonial property.
- The Court was unable to make a finding on whether the two motor vehicles belonged to the defendant because no single document to establish ownership was tendered. Besides one of the motor vehicles lacked one letter hence it was difficult to tell whether such vehicle existed in the first place. In the same breath the Court was unable to make a finding on the existence of a friesian cow and the assorted household items and who they belonged. The particulars of the assorted household items were not given and the plaintiff was perhaps not so keen to pursue the said household items.
- The defendant rebutted the presumption of law under section 14 of the Marriage Act in regard to how he acquired all the listed properties save for that property known as suit property D and the matrimonial home. The matrimonial house despite being situated on ancestral land should be considered matrimonial property by virtue of section 6(1)(a) of the Matrimonial Property Act, 2013. In regard to the plot at Runyenjes, the parcel had a dispute relating to ownership which remained unresolved. It was therefore not safe to consider the plot matrimonial property in the absence of a title because the only document tendered to prove ownership was a sale agreement. The only properties that could safely be considered matrimonial property on the basis of a presumption of law was that property known as suit property D and the matrimonial home situated therein.
- Article 45 (3) of the Constitution did not equate equal rights to a 50/50 sharing of assets but rather to the rights to be treated equally and fairly. The Matrimonial Property Act provided that in the event of divorce, the matrimonial property was divided between the spouses according to the contribution of each spouse. Section 2 of the same statute defined contribution as monetary and non-monetary and included; domestic work and management of the matrimonial home, child care, companionship, management of family business or property and farm work.
- It was difficult to ascertain exactly in monetary terms or in percentage terms the value of non-monetary contribution made by the plaintiff in the instant cause in regard to acquisition and development of suit property D and the matrimonial home. Although the plaintiff stated that her father gifted her and the defendant as a couple parcel suit property E which parcel she claimed was sold and used to purchase parcel of land, there was no evidence tendered to support the claim. Part of the proceeds of sale of parcel of that parcel of land known as suit property E constituted part of her monetary contribution towards development of their matrimonial home in Runyenjes. Despite the absence of evidence of actual contribution, the plaintiff had to have made significant contribution towards acquisition of land parcel suit property D and construction of matrimonial house or home. The defendant was working in Nairobi as a supervisor and only left service on December 22, 2006 which meant that the person who was mostly at home for more than 18 years of marriage was the plaintiff. Her contribution was major in the circumstances and could not be ignored particularly in the construction of the house which was done between 1993 and 1995.
- The land on which the matrimonial house stood was not part of the matrimonial property as it was inherited by the defendant from his parents therefore by dint of section 6(2) of the Matrimonial Property Act the same could not be considered part of the matrimonial property subject to be shared. What could only be shared was the value of the matrimonial home and the parties in the cause and particularly the plaintiff made things difficult by not tendering evidence about the value.
- In the spirit of article 159(2) (d) of the Constitution and section 1A and 1B of Civil Procedure Act the Court gave a monetary award to the plaintiff. In arriving at the sum of the monetary award, the location of the matrimonial house and the fact that at the time of the construction, the plaintiff was still working as an untrained teacher and was at home most of the time and supervised the construction of the house were taken into consideration.
- In regard to parcel suit property D the absence of evidence of actual contribution by each party and given the fact that each of the parties had given competing version on the acquisition of the same, both the plaintiff and the defendant were entitled to 50% share in the said plot and even if the defendant was the sole registered owner. Section 14 of the Matrimonial Property Act applied. The defendant held 50% share of the plot in trust for the plaintiff.
Application partly allowed, each party to bear their own costs
- The plaintiff to be paid Kshs.1.5 million being the consideration for her monetary and non-monetary contribution towards construction and development of the matrimonial home situate on Suit property C
- The plaintiff was entitled to 50% share of that property known as suit property D
- The other claims made by the plaintiff on the other properties were disallowed as the plaintiff had failed to prove to the required standard (balance of probabilities) that the properties were:
- Part of the matrimonial properties; and
- that she made any monetary or non-monetary contribution towards their acquisition.
|| Task Sharing Policy Guidelines 2017-2030 which allowed non-laboratory staff to conduct medical tests violated inter alia, the right to health, consumer rights and introduced unfair labour practices.
Association of Kenya Medical Laboratory Scientific Officers v Ministry of Health & another  eKLR
Constitutional Petition 282 of 2017
High Court at Nairobi
J A Makau, J
April 29, 2019
Reported by Beryl Ikamari & Mathenge Mukundi
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-right to health, consumer rights, right to fair labour practices and economic and social rights-whether allowing non-laboratory staff to conduct medical tests would compromise the medical treatment accorded to various patients, constitute unfair labour practices and impede the attainability of the highest standard of health-Constitution of Kenya, 2010, articles 41, 43 & 46; Medical Laboratory Technicians and Technologists Act, section 19 (1).
Constitutional Law-national values and principles of governance-public participation-threshold to be met in the fulfilment of public participation-who bore the burden of proof that constitutional parameters on public participation were met-what was the effect of the policy-making body’s failure to consult with a key stakeholder in formulation of the Task Sharing Policy Guidelines 2017-2030 (Guidelines)-Constitution of Kenya, 2010, article 10, Statutory Instrument Act, section 5.
The petitioner was the chairman of the Association of Kenya Medical Laboratory Scientific Officers, a key stakeholder in the provision of medical laboratory services. He contended that the 1st respondent spearheaded the development of the Task Sharing Policy Guidelines 2017-2030 (Guidelines), which was in the process of being implemented, without the involvement of the petitioner. The petitioner alleged that the Guidelines violated the principle of public participation under article 10(2) (a) of the Constitution. The petitioner further found fault in the Guidelines in that they allowed non-laboratory staff to conduct tests that required highly skilled laboratory staff.
The petitioner contended that the Guidelines had resulted in numerous cases of misdiagnosis of patients. Therefore, they endangered the rights of Kenyans to access the highest attainable standard of health care and demoralized trained medical laboratory professionals. The petitioner urged that the Guidelines discriminated against members of the association, by allowing non-laboratory staff to conduct tests that required highly skilled laboratory staff and they were denied their livelihood.
- Whether allowing non-laboratory staff to conduct medical tests would compromise the medical treatment accorded to various patients.
- Whether allowing non-laboratory staff to perform medical tests solely reserved for laboratory staff would amount to unfair labour practices and deny laboratory staff their livelihood.
- Whether allowing non-laboratory staff to conduct medical tests would impede the attainability of the highest standard of health.
- Whether the formulation of the Task Sharing Policy Guidelines 2017-2030 met the constitutional parameters of public participation under article 10 of the Constitution.
- What was the effect of a policy-making body’s failure to consult a key stakeholder in formulating guidelines?
- Who bore the burden of proving that constitutional parameters on public participation were met?
- Whether the Task Sharing Policy Guidelines 2017-2030 were inconsistent with section 19(1) of the Medical Laboratory Technicians and Technologists Act which provided that no person should act as a laboratory technician or technologist in any health institution in Kenya unless such person was registered under the Act.
- Where legislation was infused with a degree of openness and participation, the dangers of arbitrariness and irrationality in the formulation of the legislation, would be minimized. The objective of involving the public in the law-making process was to ensure that the legislators were aware of the concerns of the public. If legislators were aware of those concerns, that would promote the legitimacy and thus the acceptance of the legislation. It would not only improve the quality of the law-making process but also serve as an important principle that government should be open, accessible, accountable and democratic.
- The representative and participative elements of democracy should not be seen as being in tension with each other. What the constitutional scheme required was the achievement of a balanced relationship between representative and participatory elements in democracy. The public involvement provisions of the Constitution addressed that symbolic relationship, and they were at the heart of the legislative function. The Constitution contemplated that the people will have a voice in the legislative organs of the State not only through elected representatives but also through participation in the law-making process.
- The forms of facilitating an appropriate degree of participation in the law-making process were indeed capable of infinite variation. What matters was that at the end of the day a reasonable opportunity was offered to members of the public and all interested parties to know about the issue and to have an adequate say. What amounted to a reasonable opportunity depended on the circumstances of each case. Although there was an element of public participation it failed to meet the constitutional threshold.
- Section 5 of the Statutory Instrument Act required a regulation-making authority, before issuing a statutory instrument, to make appropriate consultations with persons who were likely to be affected by the proposed instrument. Section 5(3) (a) of the said Act required a regulation-making authority to notify, either directly or through advertisement, bodies or organizations representative of persons who were likely to be affected by the proposed instrument. The 1st respondent did not demonstrate that it complied with the Statutory Instrument Act by issuing the stipulated notifications or discharging its legal duty to consult.
- The respondent averred that the Task Sharing Policy Guidelines 2017-2030 were developed through wide consultation and a collaborative process but failed to show indeed that there was notification either directly or by advertisement to the bodies who were likely to be affected by the proposed instrument.
- The burden of proving that there was public participation lay with the 1st respondent. The 1st respondent was alleging that the Guidelines had been developed through a widely consultative and collaborative process involving a broad number of institutions in various sectors in Kenya and abroad. The 1st respondent failed to demonstrate that indeed the petitioner was amongst the consulted institutions as its name was not in the list made by the 1st respondent in respect of the institutions consulted. The allegation that the petitioner was a private and amorphous group, whose membership was purely voluntary, should not be a justification for the 1st respondent to decide not to involve the petitioner in the public participation. The 1st respondent did not deny that the petitioner was not involved in any way in the development of the Guidelines, notwithstanding the fact that the 1st respondent was enjoined by article 10 of the Constitution to ensure that the national principle of public participation was discharged when it exercised its powers and performed its duties.
- The Guidelines were developed in total disregard to section 19(1) of the Medical Laboratory Technicians and Technologists Act which provided that no person should act as a laboratory technician or technologist in any health institution in Kenya unless such person was registered under the Act. The Guidelines purported to allow medical tests to be conducted by a non-laboratory staff who included- medical officers, dentists and medical specialists, nursing and midwives and clinical officers. Although there was a chronic shortage of human personnel in the health sector in Kenya, it could not be remedied by provision of services by untrained and unprofessional persons. Article 43(1) of the Constitution talked of the highest attainable standard of health and that did not mean providing any health care services irrespective of harmful effects. Kenyans should not be exposed to untold dangers by allowing untrained and unprofessional personnel to purport to provide health services.
- The enactment and implementation of the Guidelines was a violation of the right to the highest attainable standard of health. The Guidelines sought to allow non-laboratory staff to conduct medical tests that required highly skilled staff. Therefore, the Guidelines violated constitutional obligations to safeguard the health rights of the consumer. That amounted to a violation of article 46 of the Constitution, dealing with consumer protection safeguards relating to both the health and economic interests of the consumer, as the respondent sought to economically exploit the citizenry and risk their health through exposing them to medical tests by unqualified staff.
- The Guidelines violated the provisions of article 41 of the Constitution dealing with the right to fair labour practices. The Guidelines subjected the members of the association to unfair labour practices in that the highly skilled laboratory staff were competing for work with non-laboratory staff, therefore, denying them their livelihood. There was a legitimate expectation in existence was once one had gone through the prerequisite training to qualify as a skilled laboratory staff. All laboratory services and medical tests were to be conducted only by those who had qualified to work as laboratory staff.
- The Guidelines enabled mid-level health care professionals such as nurses, clinical officers, pharmaceutical technologists, laboratory technologists, as well as, community health workers to safely conduct clinical tasks and procedures that would otherwise be restricted to cadres with higher qualifications. Allowing non-laboratory staff to conduct medical tests that required highly skilled staff would violate the rights granted under article 43(1) (a) of the Constitution. It would compromise the quality of medical treatment accorded to various patients, as it raised a question about the caliber and authenticity of medical tests conducted by the non-laboratory staff.
Petition allowed with no order as to costs.
- A declaration that the Task Sharing Policy Guidelines 2017-2030 violated the provisions of articles 10, 41, 43(1)(a), and 46(1)(a) & (c) of the Constitution by allowing non-laboratory staff to conduct medical tests that required highly skilled medical laboratory staff.
- A declaration that the Task Sharing Policy Guidelines 2017-2030 were inconsistent with section 19(1) of the Medical Laboratory Technicians and Technologists Act.
- An order of judicial review in the nature of certiorari was issued to bring into the Court for purposes of quashing the Task Sharing Policy Guidelines 2017-2030.
|LAW OF SUCCESSION
||A right to action in a constitutional petition can survive the death of the petitioner depending on the nature of the petition and the relief sought.
Karl Wehner Claasen v Commissioner of Lands & 4 others  eKLR
Civil Appeal 85 of 2016
Court of Appeal at Eldoret
E M Githinji, H Okwengu & J Mohammed, JJA
May 9, 2019.
Reported by Kakai Toili
Law of succession – probate and administration – causes of action instituted by a deceased – where the cause of action was of a personal nature - whether causes of action of a personal nature by a deceased could survive for the benefit of a deceased’s estate - whether a right to action in a constitutional petition survived the death of the petitioner
Civil Practice and Procedure – suits – institution of suits - cause of action vis a vis chose in action - what was the difference between a cause of action and a chose in action and whether the right to institute court proceedings was a chose in action – Constitution of Kenya, 2010, article 22 & 258; Law Reform Act, section 2 (1); Constitution of Kenya (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules, rule 10 (1)
Jurisdiction – jurisdiction of the High Court – jurisdiction where a petitioner sought to withdraw a petition - whether the High Court could proceed with a petition in spite of the wish of the petitioner to withdraw or discontinue the proceedings - Constitution of Kenya, 2010, article 3(1), 22 & 258; Constitution of Kenya (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules rule 27(3)
The appellant was a son and legal representative of the deceased petitioner and was issued with a limited grant of letters of administration limited for the purposes only of substitution and prosecuting a constitutional petition filed by the deceased petitioner. In the said petition, the deceased petitioner averred that his four parcels of land (suit lands) were unlawfully taken away by the Government and another person. He also claimed that the suit lands were appropriated in violation of the Constitution which protected the right of property. The reliefs sought in the said petition included a declaration that his constitutional rights were violated; a declaration that his eviction and the appropriation of the suit lands were in violation of article 40(1) of the Constitution and compensation for the loss in the total sum of Kshs 13,914,000,000/00. The petitioner died before the petition was heard and determined.
The appellant sought leave of the Trial Court to be substituted as a legal representative of the deceased petitioner in the constitutional petition. The Trial Court dismissed the appellant’s application and held that since the deceased petitioner’s rights were yet to be determined as at the time of his demise, there was nothing to be taken over by the appellant.
- Whether a right to action in a constitutional petition survived the death of the petitioner.
- Whether causes of action of a personal nature by a deceased could survive for the benefit of a deceased’s estate.
- What was the difference between a cause of action and a chose in action and whether the right to institute court proceedings was a chose in action?
- Whether the High Court could proceed with a petition in-spite of the wish of the petitioner to withdraw or discontinue the proceedings.
Relevant Provisions of the Law
Constitution of Kenya, 2010
(1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened.
(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—
(a)a person acting on behalf of another person who cannot act in their own name;
(b)a person acting as a member of, or in the interest of, a group or class of persons;
(c)a person acting in the public interest; or
(d)an association acting in the interest of one or more of its members.
(1) Every person has a right to institute court proceedings claiming that this Constitution has been contravened, or is threatened with contravention.
Law Reform Act
All causes of action subsisting against or vested in him shall survive against, or as the case may be, for the benefit of his estate:
Provided that this section does not apply to causes of action for defamation or seduction or inducing one spouse to leave or remain apart from the other or to claims for damages on ground of adultery.
- The Constitution of Kenya (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules (Rules) relating to procedure in constitutional petitions was silent and did not expressly provide for substitution of the deceased petitioner by his legal representative or for abatement of the petition. By section 82 of the Law of Succession Act one of the powers of the personal representative was to enforce by suit or otherwise all causes of action which, by virtue of any law, survived the deceased or arose out of his death for his estate.
- Causes of action of a personal nature did not survive for the benefit of a deceased’s estate. The legal maxim actio personalis moritur cum persona (a personal action died with the person) applied to such causes of action. The excluded causes of action in the proviso to section 2(1) of the Law Reform Act were an illustration of the application of the legal maxim. Other causes of action of a personal nature within the maxim included an action for divorce and custody dispute of minor children.
- A cause of action was not synonymous with a chose in action. A cause of action denoted a combination of facts which entitled a person to obtain a remedy in court from another person and included a right of a person violated or threatened violation of such right by another person. A chose in action had several meanings including a right to bring proceedings in court for recovery of a sum of money or pecuniary damages for infliction of a wrong or non-performance of a contract.
- The right to institute court proceedings was expressly given by article 22(1) of the Constitution. That right to institute court proceedings was undoubtedly a chose in action. It did not matter that such right was exercised through the procedure of a petition as rule 10(1) of the Rules stipulated. The cause of action was also provided in article 22(1), that was, a claim that a right or fundamental freedom in the bill of rights had been denied, violated or infringed or was threatened.
- The deceased petitioner averred in the petition to facts which ex facie showed that his right under article 40(1) of the Constitution to his own properties had been violated. That was a cause of action vested in him which survived for the benefit of the estate by virtue of section 2(1) of the Law Reform Act and which could be continued by the appellant as legal representative.
- The principle of locus standi had been profoundly reformed by article 22 and 258 of the Constitution with respect to enforcement of the bill of rights and enforcement of contravention of the Constitution respectively. In both cases, the right to institute court proceedings was given to a person acting in his own interest and to others including a person acting in public interest. That was consistent with article 3(1) of the Constitution which obliged every person to inter alia defend the Constitution. Rule 27(3) of the Rules was also relevant, it gave the Court discretion to proceed with a petition in-spite of the wish of the petitioner to withdraw or discontinue the proceedings.
- Undoubtedly by Kenya’s law, the right to institute court proceedings for enforcement of the bill of rights and the Constitution in general was solely not a personal right exercisable by a person in his own interest. It was also a collective obligation of every person to defend the Constitution. The Trial Court’s findings that a right to institute proceedings was not a chose in action and the right to bring proceedings by means of a petition was personal to the deceased petitioner were both erroneous in law.
- The deceased petitioner’s main claim was for compensation for the deprivation of several parcels of land in the sum of nearly 14 billion Kenya Shillings. That cause of action survived for the benefit of his estate. The Trial Court erroneously relied on Ugandan statutory provisions in arriving at a decision that the petition had abated. The finding that the proceedings (petition) had abated was contrary to the express provisions of section 2(1) of the Law Reform Act and section 82(a) of the Law of Succession Act and the purpose of article 22(2) of the Constitution.
- Whether or not a right to action in a constitutional petition survived the death of the petitioner depended on the nature of the petition and the relief sought. In the circumstances of the instant case the constitutional petition seeking compensation for deprivation of property survived for the benefit of the estate upon the death of the petitioner and could be continued by the appellant as a legal representative of the deceased petitioner.
- There was no cross-appeal against the finding of the Trial Court that in the absence of express provisions in the Rules, an application for substitution could be based on the applicable Civil Procedure Rules. However, rule 3(8) of the Rules gave the Court inherent power to make such orders as could be necessary for the ends of justice and article 159(2) (d) and (e) of the Constitution respectively obliged a court to administer justice without undue regard to procedural technicalities and to protect and promote the purpose and principles of the Constitution.
Appeal allowed: costs of the appeal to be costs in the pending petition and at the discretion of the Trial Court.
||The procedure to be followed in the implementation of a decision of the Minister in charge of lands to revert land to its original registered owner
M’bechi Nkandau & 19 others v Attorney General & 3 others  eKLR
ELC Suit No. 122 of 2007
Environment and Land Court at Meru
L N Mbugua, J
May 22, 2019
Reported by Kakai Toili
Land Law – ownership of title – reversion of title to land to its original registered owner – procedure to be followed – where the Minister in charge of lands made a decision to revert land to its original registered owner - what was the procedure to be followed in the implementation of a decision of the Minister in charge of lands to revert land to its original registered owner - Land Adjudication Act, section 29
Land Law – ownership of title – challenge of ownership to title – indefeasibility of title - where title to land was obtained through misrepresentation and corrupt means – effect of -what was the effect of obtaining title to land through misrepresentation and corrupt means - Constitution of Kenya, 2010, article 40
The plaintiffs and the defendants had had long standing land disputes which culminated in an appeal to the Minister, where a decision was delivered by the District Commissioner. The decision of the Minister was to be implemented pursuant to the provisions of the Land Adjudication Act. That was done via a letter written by the Director of Land Adjudication and Settlement (Director) to the Chief Land Registrar and it was alleged that the said letter misrepresented the Minister’s decision whereby the titles of the suit parcels were issued to the 4th defendants. The 4th defendants then filed a case at Meru Chief Magistrates Court, which was later transferred to the Meru High Court, against the plaintiffs seeking orders of eviction of the latter from the suit parcels. The plaintiffs subsequently filed their own case where they challenged the implementation of the letter of the Director. The 2 suits were consolidated. The plaintiffs claimed that they were the registered owners of the suit parcels and that the defendants had trespassed on the suit parcels.
- What were the applicable principles for the grant of conservatory orders?
- Whether conservatory orders would be granted against the implementation and for suspension of legislations.
- Whether the Court would suspend the amendments to the Registration of Persons Act vide Statute Law (Miscellaneous Amendment) Act No. 18 of 2018. Read More...
Relevant Provisions of the Law
Constitution of Kenya, 2010
(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired
Land Adjudication Act
(1) Any person who is aggrieved by the determination of an objection under section 26 (1) & (2) of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by—
(a) delivering to the Minister an appeal in writing specifying the grounds of appeal; and
(b) sending a copy of the appeal to the Director of Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final.
(2) The Minister shall cause copies of the order to be sent to the Director of Land Adjudication and to the Chief Land Registrar.
- There was an old document attached to the plaint where the listed parties gave their mandate to have the suit filed on their behalf. The instant suit was properly before the Court. The plaintiffs were the ones who had lodged an appeal to the Minister after losing substantially in the A/R objection proceedings before the Land Adjudication Officer. The decision made in the appeal to the Minister was what triggered the first suit at the Meru Chief Magistrates Court and the subsequent one at the Meru High Court.
- Whatever decision was made by the Minister, it was to be forwarded to the Director of Adjudication for onward transmission to the Chief Land Registrar for issuance of the title deeds. The Minister’s decision was forwarded to the Director of Land Adjudication (Director) who then forwarded the decision to the Chief Land Registrar. The Minister’s decision was clear that the parcels of land mentioned there in were to revert to the persons who were originally registered in the adjudication register. It was not clear how the Director came up with the words currently registered in place of originally registered. There was nowhere indicated in the Minister’s decision that the appeal was dismissed. The content in the implementation letter authored by the Director was clearly not a case of misinterpreting the Minister’s decision. It was a case of deliberate misrepresentation.
- The extract of the adjudication register showed how some of the names of the originally registered persons were cancelled and new names were inserted. All the parcels of land mentioned in the Minister’s final order were the ones which had been cancelled in the adjudication register. The cancellations had to have occurred when the 4th defendant won most of the parcels during the objection proceedings. However, the Minister’s decision did not uphold the decision in the objection cases. The Minister’s decision was clear that the land belonged to the original owners. The original owners were the ones whose names were cancelled in the adjudication register. The titles were however issued to the new registered owners instead of the original ones.
- The nexus between the defendants and the suit parcels did not run deep. Taking into account the pleadings in the original suit at the Meru Chief Magistrate’s Court, the defendants were the plaintiffs and had sought orders of eviction of the instant plaintiffs. That was a clear indication that the group which was in occupation of the land were the instant plaintiffs. It was the one the Minister had found on the suit land. There would have been no need to have a suit for eviction filed if the instant plaintiffs had not been in occupation of the land.
- The contradiction in the letter authored by the Director was discovered early enough. The District Land Adjudication Officer, Meru brought to the attention of the Director that something was amiss and also sought to know the correct interpretation. There was no response from the Director which confirmed that the Director and perhaps his office too did not want to undo the corrupt schemes.
- It was appalling that by the whiff of a pen and by use of four words, “appeal dismissed” and “currently registered”, the office of the Director created a historical injustice affecting a large population of the citizen. The ripple effect of such impunity had adversely affected the generations and would certainly continue to be felt since undoing the mess could take some time. It was not clear why the office of the Director in Nairobi never bothered to respond to their officer in Meru. It was also not clear why the office of the Attorney General was missing in action during the trial of the instant case. It was a rather unfortunate situation that that level of impunity was left to thrive for decades without the slightest move to undo the mess.
- The Minister’s decision was implemented in an illegal manner through misrepresentation and corrupt schemes. The resultant titles issued were unlawfully obtained thus the titles ought to be impeached. The titles to be impeached were the ones mentioned in the Minister’s decision. The suit parcels had been alienated over the years. However, that was done during the pendency of the suits which was irregular. Restrictions and cautions were lodged in many of the parcels from the very beginning. Thus, even as buyers were scrambling for the land, it was clear that there was a serious dispute which spilled in court as from 1997 and the said buyers could not feign ignorance.
- The Court was alive to the fact that the dispute was very old and that some of the people who were registered as the original owners of the suit parcels could have passed on. As such, the land and titles had to revert back to their estate in instances where the owners were deceased.
- The suit Meru H.C.C.NO 78 OF 2002 (formerly Meru Cmcc 83 of 1997) dismissed with no orders as to costs,
- The suit Meru H.C.C.NO 122 OF 2007 allowed in the following terms;
- The implementation letter written by one J B Mutsembi on July 25, 1994 in respect of the decision in the Minister’s appeal no 137 of 1991 declared null and void.
- All the titles issued in respect of land parcels mentioned in the Minister’s decision the same being numbers KIAMURI“A”/1183, 295, 1217, 448, 294, 293, 292, 286, 468, 290, 285, 284, 283, 1019, 1020, 1017, 1147, 981, 982 and 1018 or their subsequent subdivisions were to be cancelled and the titles were to be issued in the names of the original owners.
- The Deputy Registrar of the Court was authorized to sign all requisite documents to give effect to the implementation of the judgment.
- The 2nd and 4th defendants were condemned to pay costs of the suit jointly and severally.
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