Baseline Architects Ltd. & Others v National Hospital Insurance Fund
High Court of Kenya [2008] eklr [http://www.kenyalaw.org/]
Warsame J 7th May, 2008
This case raised a fundamental problem of balancing or reconciling
two kinds of public interest which may clash due to the stakes
involved. On the one hand there is the public interest that harm
should not be done to the nation or the public by disclosure of
certain documents and on the other hand there is the public interest
that administration of justice should not be frustrated by
withholding of documents which must be produced in evidence if
justice is to be done.
The law is that no one should be compelled to produce documents in
his possession which any other person would be entitled to refuse to
produce if they were in his possession unless there is mutual
consent.
For purposes of public policy and protection, a client may consult
an advocate for the purpose of his cause of action and of litigation
which is pending and that the policy of the law says that in order to
encourage free intercourse between him and his counsel the client has
the privilege of preventing his advocate from disclosing anything
which he gets when so employed and of preventing its being used
against him, although it might otherwise be evidence against him.
This privilege also extends to the Attorney General for he provides
legal opinion and advise to the Government and all public
corporations in areas where his intervention is sought or necessary.
The applicant, the National Hospital Insurance Fund appointed the
2nd respondent as consulting quantity surveyor for a proposed
resource centre in Karen Nairobi. The 1st respondent was also
instructed to be the lead consultant for the design and supervision
to completion of the proposed training centre.
However, a dispute arose between the applicant and the respondents
which was referred to arbitration. Thereafter an award was made and
published in favour of the respondents to the tune of Kshs. 350
million.
NHIF was aggrieved by the decision of the arbitrator they filed the
present application to expunge certain documents from the record.
Reason being that the documents were allegedly privileged.
The applicant, in support of the application, submitted that the
documents annexed to the respondents' affidavits were in breach of
privilege and therefore could not be a basis of adjudication on the
issues before court. The applicant's counsel submitted that the
evidence adduced in the two affidavits was not admissible because the
documents related to an opinion from the Attorney General in respect
of an ongoing litigation or advice given by an advocate to his
client. Counsel submitted that the information was privileged
communication which could not be used against the applicant.
Counsel for the respondents submitted that section 137 and 134 of
the Evidence Act (Cap. 80) permitted the respondents to produce the
evidence on record. He also submitted that the documents produced
were exceptional to the rule of privilege and confidential
information. And that the communication with the Attorney General
fell within the permitted exceptions of section 137 of the Evidence
Act.
The court, after considering counsel submissions, stated that a
party to a litigation is not obliged to produce documents which do
not belong to him but which have been entrusted to his company by a
third party in confidence. It would be an abuse of that confidence to
disclose it, without the permission of the owner of the original
documents.
The court went further to say that where a document has been
communicated voluntarily for a limited and restricted purpose, it
would be unjust and unlawful to allow the original or a copy of it to
be communicated in any manner except for that purpose.
However the court opined in certain cases a possible injury to
public interest must be balanced with another risk which is the
frustration of administration of justice by such refusal.
The documents in question were meant for the internal consumption
and use of the applicant and other Government bodies who would be
concerned or interested in the outcome of the dispute between the
parties. The documents from the Chief Executive Officer of the
applicant to the Attorney General were marked as confidential because
the CEO was seeking an opinion and/or advice of the AG.
The court posed the question whether the documents in question were
within the boundary of documents which any right minded person would
say clearly ought not to be the subject of production in an action.
The court held that it is of utmost importance that public service
should function properly and it cannot do so unless commonplace
communications between one civil servant and another are privileged
from production. It would be an injustice to civil servants to hold
that they are so timid that they would not write freely and candidly
unless they know what they wrote could in no circumstances
whatsoever, come to the light of the day to be used by a person not
intended to see or rely on the contents of such documents.
Public policy requires that the most unreserved communication should
take place between public servants and it should not be subject to
restraints or limitations. But it is quite clear that if the
documents in possession of the respondents was allowed to be
produced, used and relied upon in court, that would in essence
restrain the freedom of communication and render public officers to
proceed in a more cautious, guarded and reserved manner in their
communication and concerns.
The contents of the documents clearly showed that the documents
belonged to a class which on grounds of public interest must, as a
class, be withheld from production. The documents fell within the
scope of privilege and confidential correspondence in the course of
obtaining legal advice. It would be both wrong and dangerous if
parties were allowed to intercept legal opinions between the office
of the Attorney General and government departments and to rely on the
same for the success of their case, because they thought the documents
are favourable to the success of their case.
The balance of public good in the circumstances of this particular
case tilted in favour of refusing the production of the subject
documents.
Download Case
<http://kenyalaw.org/Downloads_FreeCases/Confidential_communications.pdf>
Reported by BENJAMIN MBATIA of KLR
Friday 30 May 2008
PRESUMPTION OF MARRIAGE BY COHABITATION
In the matter of the Estate of Patrick Kibunja Kamau(Milka Githikia
Kamau Vs. Faith Wangechi Kamau[2008] eKLR
High Court of Kenya at Nakuru (M.Koome J.),May 16,2008.
Under kikuyu customary law, there can be marriage by cohabitation,
which could be presumed where parties have been cohabiting together.
The petitioner, Milka Githikia Kamau, while describing herself as
the widow of the deceased petitioned for the letters of grant of
administration on 12th February 1999. According to her, the deceased
Patrick Kibunja Kamau died on 19th January 1999 at Nyahururu and was
survived by herself (as petitioner) and three minor children.
The letters of administration were issued to the petitioner on 13th
May 1999. On 7th December 1999 the petitioner applied for the
confirmation of the grant. That is when Faith Wangechi Kamau (the
applicant) filed a protest, of the grant being confirmed, on the
grounds that the deceased was also married to her from 1993. She
contended that she had two children with the deceased who also
survived the deceased. The applicant contended that she was left out
as a widow of the deceased and she protested the confirmation of the
grant unless her name and those of her children were included as
beneficiaries of the deceased. The petitioner Milka Githikia Kamau
however denied any knowledge of the applicant as well as the
children. The petitioner also relied on the evidence of one Elkana
Kibunja, the father of the deceased who denied that the deceased had
married the applicant under the Kikuyu Customary Law since the
applicant was never introduced to him or her children.
When the matter came up in court, the petitioner gave evidence and
relied on the evidence of her father-in-law Elkana Kibunja and one
Leah Nduta, a step-mother of the deceased. It was the petitioner's
case that she got married to the deceased in 1981 under the Kikuyu
Customary Law and they were blessed with three children. Upon
marriage, the petitioner and the deceased cohabited as husband and
wife in Mombasa, and then moved to Maralal, then Kabarnet District
and finally, Nyahururu.
The deceased was working with the Ministry of Agriculture and as at
the time he passed away he was the Deputy Provincial Director of
Agriculture based in Nyeri. The deceased is said to have also been
running a business at Subukia town centre where he used to visit
frequently to check on his business but he would always return to
Nyahururu where the petitioner lived with the children. When the
deceased was taken to hospital he was at Subukia and he was admitted
at the Nyahururu Cottage Hospital where he passed away. Upon his
death, meetings to arrange the burial were held at Subukia by friends
and relatives. The funeral committee decided that the death of the
deceased be announced by way of advertisement in the newspapers but
the name of the petitioner or the children were not included. The
petitioner sought an explanation from the deceased's father why they
were left out in the death announcement, Elkana Kibunja held a
meeting with the funeral committee at Subukia and directed that the
names of the petitioner and the applicant as well as any other woman
claiming to be his wife be included in the death announcement. Thus
the name of the petitioner, the applicant and all their children were
included in the death announcement and also in the funeral programme
The petitioner denied that all the time they lived with the
deceased, the deceased had another wife or that she had met the
applicant or her children. The deceased never disclosed to the
petitioner that he had another wife. The petitioner also vehemently
denied that she had differences with the deceased prior to his death.
She denied that the deceased been separated and was living in a hotel
in Nyahururu instead of the matrimonial home. Asked why the deceased
was taken ill while at Subukia and why the funeral meetings were held
in Subukia instead of the matrimonial home in Nyahururu, the
petitioner explained that the deceased was at his business premises
and it was in Subukia where he had many friends and relatives.
Elkana Kibunja, deceased father supported the petitioner's evidence
in every material aspect, and so did Leah Nduta, Elkana Kibunja's
wife, and the deceased's step mother
Faith Wangechi the applicant testified that she met the deceased in
1990. They became friends and he is the biological father of her two
children. The first child was born in 1991 and the second child was
born in 1993. In October 1993, the deceased requested the applicant
to start living with him as a wife. They moved in together, moved to
Subukia and eventually the deceased bought a plot and constructed a
business premises called Village Villas Inn. The applicant was
in-charge of the business and the deceased used to live with her.
She contended that the deceased married her and paid Kshs.19,000 as
dowry. She contended that she was the one who looked after the
deceased when he was in hospital. According to the applicant, she is
the second wife of the deceased. She recognised the petitioner as the
first wife and urged the court to grant the letters of administration
to the two widows.
Her evidence was supported by one Peter Chege, a friend of the
deceased who confirmed that she was married to the deceased.
When the matter came up for determination by the court, the single
issue for determination was whether the applicant and her children
are beneficiaries of the deceased's estate. In particular, whether
the applicant was married to the deceased under the Kikuyu Customary
Law and whether the deceased was the biological father of the
applicant's children or whether he had adopted them under the
Customary Law by virtue of the marriage to the applicant.
Counsel for the applicant invited the court to find that there was
marriage by cohabitation which could be presumed from the
relationship between the deceased and the applicant.
The court also needed to establish whether the applicant had been
able to discharge the burden of prove that due to the long
cohabitation living as man and wife with the deceased, the court
should presume a marriage. On the issue of whether her children were
deceased's the court stated that ordinarily if they were the
deceased's children they ought to have borne the names of his
parents. From the evidence on record, the applicant had not proved
that these were deceased's children. No birth certificates were
produced or even evidence to show that the deceased used to support
them.
The final issue to determine is whether the applicant discharged the
burden of prove that by virtue of the long cohabitation she should be
presumed a wife of the deceased. On this, the court answered the
question on the affirmative. On reaching this answer, the court
considered that the deceased used to live with the applicant at
Subukia from 1993. The deceased personal effects such as clothes and
motor vehicle were retrieved from the applicant's house when the
deceased passed away. It is the applicant who took the deceased to
hospital when he was taken ill. The funeral meetings took place in
Subukia which was recognised as the deceased's residence. The funeral
committee included the applicant as the widow of the deceased and she
was accorded the full honours of a widow. The deceased who was
married to the petitioner under the customary marriage had capacity
to marry the applicant.
The court was categorical that it would be unconscionable for it to
hold that the applicant was a mere impostor looking out to enrich
herself as the petitioner has described her. All those years the
applicant must have held legitimate expectations that she was the
wife of the deceased and thus entitled to a share of his estate and
that denying her a share of the deceased estate would be tantamount
to denial of the fundamental rights as regards fair treatment and
equality before the law.
In summation, the court held that the applicant can be presumed a
wife of the deceased. However, her children could not be declared the
beneficiaries of the deceased. The deceased was therefore survived by
the petitioner, the petitioner's three children and the applicant who
was each entitled to 1/5 of the deceased's estate
Download File
<http://kenyalaw.org/Downloads_FreeCases/succ_82_of_1999.pdf>
Reported By Timon Kosgei of KLR
May, 2008
Nairobi Kenya.
Kamau Vs. Faith Wangechi Kamau[2008] eKLR
High Court of Kenya at Nakuru (M.Koome J.),May 16,2008.
Under kikuyu customary law, there can be marriage by cohabitation,
which could be presumed where parties have been cohabiting together.
The petitioner, Milka Githikia Kamau, while describing herself as
the widow of the deceased petitioned for the letters of grant of
administration on 12th February 1999. According to her, the deceased
Patrick Kibunja Kamau died on 19th January 1999 at Nyahururu and was
survived by herself (as petitioner) and three minor children.
The letters of administration were issued to the petitioner on 13th
May 1999. On 7th December 1999 the petitioner applied for the
confirmation of the grant. That is when Faith Wangechi Kamau (the
applicant) filed a protest, of the grant being confirmed, on the
grounds that the deceased was also married to her from 1993. She
contended that she had two children with the deceased who also
survived the deceased. The applicant contended that she was left out
as a widow of the deceased and she protested the confirmation of the
grant unless her name and those of her children were included as
beneficiaries of the deceased. The petitioner Milka Githikia Kamau
however denied any knowledge of the applicant as well as the
children. The petitioner also relied on the evidence of one Elkana
Kibunja, the father of the deceased who denied that the deceased had
married the applicant under the Kikuyu Customary Law since the
applicant was never introduced to him or her children.
When the matter came up in court, the petitioner gave evidence and
relied on the evidence of her father-in-law Elkana Kibunja and one
Leah Nduta, a step-mother of the deceased. It was the petitioner's
case that she got married to the deceased in 1981 under the Kikuyu
Customary Law and they were blessed with three children. Upon
marriage, the petitioner and the deceased cohabited as husband and
wife in Mombasa, and then moved to Maralal, then Kabarnet District
and finally, Nyahururu.
The deceased was working with the Ministry of Agriculture and as at
the time he passed away he was the Deputy Provincial Director of
Agriculture based in Nyeri. The deceased is said to have also been
running a business at Subukia town centre where he used to visit
frequently to check on his business but he would always return to
Nyahururu where the petitioner lived with the children. When the
deceased was taken to hospital he was at Subukia and he was admitted
at the Nyahururu Cottage Hospital where he passed away. Upon his
death, meetings to arrange the burial were held at Subukia by friends
and relatives. The funeral committee decided that the death of the
deceased be announced by way of advertisement in the newspapers but
the name of the petitioner or the children were not included. The
petitioner sought an explanation from the deceased's father why they
were left out in the death announcement, Elkana Kibunja held a
meeting with the funeral committee at Subukia and directed that the
names of the petitioner and the applicant as well as any other woman
claiming to be his wife be included in the death announcement. Thus
the name of the petitioner, the applicant and all their children were
included in the death announcement and also in the funeral programme
The petitioner denied that all the time they lived with the
deceased, the deceased had another wife or that she had met the
applicant or her children. The deceased never disclosed to the
petitioner that he had another wife. The petitioner also vehemently
denied that she had differences with the deceased prior to his death.
She denied that the deceased been separated and was living in a hotel
in Nyahururu instead of the matrimonial home. Asked why the deceased
was taken ill while at Subukia and why the funeral meetings were held
in Subukia instead of the matrimonial home in Nyahururu, the
petitioner explained that the deceased was at his business premises
and it was in Subukia where he had many friends and relatives.
Elkana Kibunja, deceased father supported the petitioner's evidence
in every material aspect, and so did Leah Nduta, Elkana Kibunja's
wife, and the deceased's step mother
Faith Wangechi the applicant testified that she met the deceased in
1990. They became friends and he is the biological father of her two
children. The first child was born in 1991 and the second child was
born in 1993. In October 1993, the deceased requested the applicant
to start living with him as a wife. They moved in together, moved to
Subukia and eventually the deceased bought a plot and constructed a
business premises called Village Villas Inn. The applicant was
in-charge of the business and the deceased used to live with her.
She contended that the deceased married her and paid Kshs.19,000 as
dowry. She contended that she was the one who looked after the
deceased when he was in hospital. According to the applicant, she is
the second wife of the deceased. She recognised the petitioner as the
first wife and urged the court to grant the letters of administration
to the two widows.
Her evidence was supported by one Peter Chege, a friend of the
deceased who confirmed that she was married to the deceased.
When the matter came up for determination by the court, the single
issue for determination was whether the applicant and her children
are beneficiaries of the deceased's estate. In particular, whether
the applicant was married to the deceased under the Kikuyu Customary
Law and whether the deceased was the biological father of the
applicant's children or whether he had adopted them under the
Customary Law by virtue of the marriage to the applicant.
Counsel for the applicant invited the court to find that there was
marriage by cohabitation which could be presumed from the
relationship between the deceased and the applicant.
The court also needed to establish whether the applicant had been
able to discharge the burden of prove that due to the long
cohabitation living as man and wife with the deceased, the court
should presume a marriage. On the issue of whether her children were
deceased's the court stated that ordinarily if they were the
deceased's children they ought to have borne the names of his
parents. From the evidence on record, the applicant had not proved
that these were deceased's children. No birth certificates were
produced or even evidence to show that the deceased used to support
them.
The final issue to determine is whether the applicant discharged the
burden of prove that by virtue of the long cohabitation she should be
presumed a wife of the deceased. On this, the court answered the
question on the affirmative. On reaching this answer, the court
considered that the deceased used to live with the applicant at
Subukia from 1993. The deceased personal effects such as clothes and
motor vehicle were retrieved from the applicant's house when the
deceased passed away. It is the applicant who took the deceased to
hospital when he was taken ill. The funeral meetings took place in
Subukia which was recognised as the deceased's residence. The funeral
committee included the applicant as the widow of the deceased and she
was accorded the full honours of a widow. The deceased who was
married to the petitioner under the customary marriage had capacity
to marry the applicant.
The court was categorical that it would be unconscionable for it to
hold that the applicant was a mere impostor looking out to enrich
herself as the petitioner has described her. All those years the
applicant must have held legitimate expectations that she was the
wife of the deceased and thus entitled to a share of his estate and
that denying her a share of the deceased estate would be tantamount
to denial of the fundamental rights as regards fair treatment and
equality before the law.
In summation, the court held that the applicant can be presumed a
wife of the deceased. However, her children could not be declared the
beneficiaries of the deceased. The deceased was therefore survived by
the petitioner, the petitioner's three children and the applicant who
was each entitled to 1/5 of the deceased's estate
Download File
<http://kenyalaw.org/Downloads_FreeCases/succ_82_of_1999.pdf>
Reported By Timon Kosgei of KLR
May, 2008
Nairobi Kenya.
The Average Lawyer
The average lawyer is essentially a mechanic who works with a pen instead of a ball peen hammer.
-Robert Schmitt-
L-K’ers: What is your take on this? Email your opinion now to: pmusyimi@gmail.com
-Robert Schmitt-
L-K’ers: What is your take on this? Email your opinion now to: pmusyimi@gmail.com
Of Lawyers and IQ
What do you call a lawyer with an IQ of 15?
A lawyer.
What do you call a lawyer with an IQ of 10?
Your honor.
A lawyer.
What do you call a lawyer with an IQ of 10?
Your honor.
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