Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — COURT OF APPEAL 4. The record reflected a very careful evaluation of the evidence hence; the superior court discharged the duty as the first appellate court. 5. The alleged violation of the appellant’s Constitutional rights was an afterthought in that had the appellant raised the challenge in the trial court or the superior court, the State would have had the opportunity of explaining the alleged detention. Failure by the appellant to raise the alleged violation of his rights at the earliest opportunity in the two courts below constituted a waiver of such rights Appeal dismissed. Grant of Letters of Administration Martha Gukiya Thui & Another v Kibugi Hingi & Another [2010] eKLR Civil Appeal No. 306 of 2004 Court of Appeal at Nyeri P. K. Tunoi, S. E. O. Bosire & J. G. Nyamu, JJA. June 24, 2010 Reported by Nelson Tunoi Case History; (An appeal from the judgment/order of the High Court of Kenya at Nyeri (Okwengu J.) dated 25th July, 2003 in H. C. Success. Cause No. 283 of 1999) The Hon. Mr. Justice P. K. Tunoi Succession law-probate and administration-grant of letters of administration-appeal against judgment of the superior court granting letters of administration to the respondents who were brothers of the deceased on grounds of customary law application-where the respondents claimed that the deceased was holding the estate in trust for them-whether the superior court was right in applying customary law in disinheriting the appellants by virtue of being married daughters-whether the appeal had merit-Law of Succession Act (cap 160) sections 32, 33, 71; Registered Lands Act (cap 300) sections 28, 29; Judicature Act (cap 8) section 3 (2) Succession law-intestacy-distribution of the estate of the deceased-customary law applicationwhether it was just to deprive a child of the deceased person of her father’s estate merely because she was a married daughter and vest the estate in a brother of the deceased-whether it was the intention of Parliament to exclude the application of intestacy provisions of the Succession Act (cap 160) to all agricultural land-Law of Succession Act (cap 160) sections 32, 33, 38; Judicature Act (cap 8) section 3 (2); Constitution section 82 (1) (4) The appellants, who were the surviving daughters of the deceased, lodged an appeal against the decision of the superior court confirming the grant of letters of administration to the respondents, who were the brothers of the deceased. The deceased had died intestate leaving two parcels of land registered in his own name. The respondents alleged that one of the properties was held in trust by the deceased on his own behalf and his brothers. The superior court held the view that the respondents were the rightful heirs who survived the deceased since the appellants were married and were not entitled to inherit the deceased’s estate. The effect of the decision of the superior court was that, although the appellants were children of the deceased, they did not get any share of their father’s estate. During the appeal, counsel for the appellants contended that sections 28 and 29 of the Registered Lands Act provided that the land registered under the Act belonged to the registered owner absolutely and therefore customary claims were excluded. He further argued that the issue of trust should not have been raised in the succession proceedings. The main issue for determination was whether the superior court was right in applying customary law in disinheriting the appellants merely because they were married daughters. Held: 1. The application of the law on intestacy is excluded only in respect of agricultural land which falls within such areas as have been specified in a Gazette Notice signed by the Minister for the time being responsible for administration of estates of deceased persons, and it is a question of fact whether or not a particular agricultural land falls outside the provisions of Part V of the Succession Act. The onus is on the party who alleges that Part V does apply to a particular land to adduce evidence to show such land was Gazetted by the Minister concerned. 2. Customary law is personal law and is meant to govern rights to land conferred by customary law or customary practices of the community or tribe where the land falls. The subject matter in dispute was registered land, which fell under the Registered Lands Act (cap 300) and therefore it had ceased to be governed by customary law in view of the clear provisions under the relevant law under which the land is registered. 36 Issue 12: April-June 2010
KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — COURT OF APPEAL 3. Section 32 and 33 of the Succession Act must be read as being subject to the provisions of section 3 (2) of the Judicature Act, which provides that customary law will apply provided it is not repugnant to justice and morality, and is not inconsistent with any written law. The written law in this case was the Registered Land Act, which excludes customary claims over land registered under that Act. 4. Parliament did not intend that customary law applies to agricultural land on intestacy, regardless of the result its application will give rise to. Therefore, although sections 32 and 33 of the Succession Act appear to mandate the courts to apply customary law or custom, in the distribution of a deceased’s agricultural land on intestacy, the application of such law is not absolute. It has to be subjected to strictures under section 3 (2) of the Judicature Act. 5. A grant of letters of administration relates to the net estate of a deceased person. A share of property held in trust is not part of the deceased’s estate, but a charge over it and must be identified and excluded from distribution, to persons other than those beneficially entitled to it. 6. The superior court erred in applying customary law without any proper basis, in absence of any Gazette notice to show the land fell in such an area in which customary law could be invoked. Appeal allowed, judgment of the superior court and any consequential orders set aside. Advocates: Mr. Kingori for the Appellants Mr. Kiminda for the Respondents Appellant’s Right to be Presented in the Court Within 14 Days of Arrest David Njuguna Wairimu v David Njuguna Wairimu Criminal Appeal no. 28 of 2009 Court of Appeal at Kisumu S. E. Bosire, P. N. Waki & D. K. S. Aganyanya, JJ.A June 18, 2010 Reported by Monica Achode Case History Appeal from a judgment of the High Court of Kenya at Kisii (Musinga & Karanja, JJ) dated 30th October, 2008 in H.C. Cr. A. No. 16 of 2006 The Hon. Mr. Justice D. K. S. Aganyanya Constitutional Law – constitutional right – violation of appellant’s right to be presented to the court upon arrest within 14 days of such arrest – appellant having been brought to court after the prescribed period of 14 days – where the appellant had failed to raise that issue both at his trial and in his first appeal – language - failure to interpret the language of the court – appellant claiming that the court record was not clear whether proceedings were interpreted to the appellant – remedy for breach of constitutional rights – whether a doubt was created as to the appellant’s understanding of the proceedings – whether he was precluded from raising a constitutional issue at any other stage of the proceedings – Constitution section 72(3) and 77(2) Charge – framing of a charge – duplicity in framing of charge – appellant claiming that the addition of the particulars relating to the wounding of the complainant in the robbery charge made it duplicitous – charge failing to include the words dangerous” and “offensive” to describe the weapons the robbers were armed with – effect of – whether the inclusion of one or more of the alternative modes of bringing a robbery charge made it duplicitous Criminal Practice and Procedure – appeal – second appeal – appeal against conviction and sentence for the offence of robbery with violence – grounds that the superior court failed to consider the defence – duty of the first appellate court – circumstances under which a superior court could rehash the conclusion of a lower court – whether this was objectionable – Penal Code section 296 (2) (Cap 63) The appellant brought the second and final appeal against a charge of robbery with violence contrary to section 296 (2) of the Penal Code. Amongst the grounds adduced were that; the appellant’s Constitutional rights to be presented to the court upon arrest within 14 days of such arrest had been violated, that the language of the court had not been interpreted in a manner he could understand, that there had been a duplicity of charges and that the superior court had failed to consider all the evidence adduced against the appellant. Issue 12: April-June 2010 37
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