Bench Bulletin - Issue 12 - Kenya Law Reports

More documents

Recommendations

Info

KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — HIGH COURT Burial dispute: Luo customary law and the burial of a married woman Charles Onyango Oduke & Another v Samuel Onindo Wambi Civil Case No 143 of 2009 High Court, at Kisumu April 9,2010 Ali Aroni. J Reported by Andrew Halonyere Customary law – burial dispute – deceased wish to be interred/buried in her piece of land – defendant’s (deceased father- in -law) claim that he had a customary right to decide the burial place - Luo customary law in regard to burial of a married woman – claim by the plaintiffs that the defendant and his family mistreated the deceased during her life time and were therefore undeserving to bury her remains – effect of the deceased wish vis a vis Luo customary law on burial – factors the court should consider when applying customary law – whether in the circumstances the wishes of the deceased should be respected – Judicature Act (Cap 8)section 3 (2). The first plaintiff was the brother of (Veronica), the deceased and the second plaintiff was the deceased adopted son. The two plaintiffs brought a suit in the High Court challenging the claim of the defendant, who was the deceased’s father-in-law, that he was entitled under Luo customary law to bury the remains of the deceased. The plaintiff’s case was that the defendant and his family mistreated the deceased during her lifetime and as a result of the mistreatment, the deceased had established a home in Kakamega and on many occasions declared to her family and friends her wish to be interred on the said piece of land, in the event of her death. The plaintiffs further submitted that although the deceased was a Luo by tribe and thus subject to Luo customary law, the defendant’s attitude did not accord him the customary law right to bury her remains and she ought to be interred on her land in Kakamega according to her wishes. The defendant on the other hand denied the allegation that the deceased had made a wish to be buried on her piece of land, arguing that if there was such a wish, it was not unequivocal as there was no other place to bury her other than in Kamagambo, Rongo District. The defendant submitted that interring her on his land would be in accordance with her personal law which was Luo customary law. The defendant further submitted that customarily the right to bury the deceased rested on him and did not lie with the plaintiffs, arguing that the deceased and his son remained married up to the time of her death. The defendant strongly contended that because his son was sick, as the head of the family, the right to bury the deceased lay with him. The main issue before the court was whether the deceased had left a wish stating where she wanted to be buried, if the answer was in the affirmative and what was the effect of the said wish against Luo customary law on burial of a married woman. Held: 1. Section 3(2) of the Judicature Act (Cap 8) required that while applying customary law, the courts should ensure that the same was not repugnant to justice and morality, and cases on customary law should be decided based on substantive justice. 2. The Courts ought to give effect to the wishes of the deceased as far as possible unless for good reasons for example if the wishes were contrary to custom. 3. The conduct and attitude of the defendant and the family were such that they were undeserving to bury the remains of the deceased and they could not therefore be heard to claim a customary right. 4. Substantial justice would only be achieved if the wish of the deceased was respected. 5.Obiter “Although the defendant is undeserving to bury Veronica, his wish to bury her may be an attempt by him and the rest of the family to make amends with the dead.” The body of the deceased would be released to the First Plaintiff and the defendant or anyone of them for interment in the Kakamega property in accordance with Catholic rituals as the deceased had directed. Advocates Mr. S. K’opot and Mr. A. Oyuko for the plaintiffs Mr. C. Ayayo for defendant. 66
KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — HIGH COURT Nyayo House ‘torture chambers’: compensation for human rights violations Wachira Weheire v Attorney-General [2010] eKLR Miscellaneous Civil Case 1184 of 2003 April 8, 2010 H. M. Okwengu & G. Dulu JJ. High Court at Nairobi (Nairobi Law Courts) Reported by Njeri Githang’a Constitutional law-fundamental rights and freedoms-right to liberty - protection against arbitrary search-fair trial -freedom of assembly and association - protection from discrimination –whether there was enough evidence to prove that the said rights had been violated-Section 72(1), 76(1), 77 (a),80(1) and 82(3) Constitutional Law – fundamental rights – rights of an accused person – right to be brought to court within a reasonable time after arrest –arrested person brought to court after 16 days - failure by the prosecution to offer an explanation–alleged breach of the right to protection against torture or to inhuman treatment-whether there was a violation of the petitioners constitutional rights – Constitution of Kenya section 72(3), (b) 74(1) Constitutional law-fundamental right and freedoms-limitation period-time within which to seek redress for breach of the rights- need to bring proceedings as early as possible- where there was no limitation under the Constitution The Hon. Lady Justice H. M. Okwengu Statutes-interpretation of statutes- Public Authorities Limitations Act-inconsistency with the Constitution-limitation provisions under the Public Authorities Limitations Act –whether the Public Authorities Limitations Act could override the Constitution and be used to curtail rights provided under the Constitution- Constitution of Kenya section 3, Public Authorities Limitations Act Constitutional law- fundamental rights and freedoms –procedure-manner in which a claim for the violation of the constitutional rights should be brought - sufficiency of facts-failure to raise the claim at the preliminary stage-where the pleadings were supported by evidence -whether there was breach of any fundamental rights Constitutional law – fundamental rights and freedoms-rules of procedure- Constitutional issue arising from the subordinate court- where the procedure required a party to raise the constitutional issue in proceedings before the subordinate court which would be then referred to the High Court for determination–where there was an alternative of filing it directly to the High Court-whether the application was competent-the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2001, rule 9 Constitutional Law-jurisdiction-jurisdiction of the High Court to deal with the issue of violation of constitutional rightsclaim that the Truth, Justice and Reconciliation Commission (TJRC) could deal with the issue-whether the court could abdicate the responsibility to an inferior tribunal Constitutional law- fundamental rights and freedoms- breach of -award of damages- special damages neither pleaded nor proven-exemplary damages-whether it was appropriate to award exemplary or aggravated damages- whether general damages could be awarded Nyayo House in Nairobi, (now the headquarters of the Immigration Department) where the petitioner said he had been incarcerated and tortured. The petitioner filed a constitutional reference under section 84 of the Constitution and the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2001 alleging breach of his fundamental rights and freedom. The petitioner alleged that he had been a victim of the “Nyayo Torture Chambers”. It was his case that he was arrested in December, 1986 and was locked up at Jogoo Road Police Station. He was later taken to the basement of Nyayo House in Nairobi, where he was held for 16 days and subjected to various acts of physical, mental and psychological torture. The petitioner averred that the acts that he was subjected to namely; being kept hungry and without sleep for several days, being physically assaulted by being kicked, whipped and burned with cigarettes, pricked with pins, hose-piped and placed naked in water-logged cells, were all cruel and degrading treatment and therefore constituted a violation of section 74(1) of the Constitution. He was subsequently arraigned in the Chief Magistrate’s Court at Nairobi on charges of taking an illegal oath and failure to prevent a felony and was convicted on his own plea of guilty. The petitioner appealed to the High Court in 1987, which appeal was rejected. He was hence confined in prison where he served his sentence until August, 1989. According to the applicant, he could not lodge his claim immediately upon his release as he had to wait until after the year 2002 when there was a change in Government. Issue 12: April-June 2010 67
Page 1 and 2:
The Bench Bulletin A publication of
Page 3 and 4:
KENYA LAW REPORTS BENCH BULLETIN Th
Page 5 and 6:
KENYA LAW REPORTS BENCH BULLETIN CA
Page 7 and 8:
KENYA LAW REPORTS BENCH BULLETIN DI
Page 9 and 10:
Page 11 and 12:
Page 13 and 14:
Page 15 and 16:
Page 17 and 18: KENYA LAW REPORTS BENCH BULLETIN AG
Page 19 and 20: KENYA LAW REPORTS BENCH BULLETIN DE
Page 31 and 32: KENYA LAW REPORTS BENCH BULLETIN FE
Page 37 and 38: KENYA LAW REPORTS BENCH BULLETIN FR
Page 67: KENYA LAW REPORTS BENCH BULLETIN FR
Page 81 and 82: KENYA LAW REPORTS BENCH BULLETIN IS
Page 83 and 84: KENYA LAW REPORTS BENCH BULLETIN IS
Page 85 and 86: KENYA LAW REPORTS BENCH BULLETIN LE
Page 87 and 88: THE NATIONAL COUNCIL FOR LAW REPORT
show all

Bench Bulletin - Issue 12 - Kenya Law Reports

Create successful ePaper yourself

Delete template?

Save as template?