Barlany Car Hire Services Limited-v-corporate Insurance Limited

CASE DETAILS

Case No: HCCC (Milimani) No. 1249 of 2000 (Unreported)

Forum: High Court of Kenya at Milimani, Nairobi.

Judge: P.J.S. Hewett

Date: 12^th October, 2000

Authorities cited in the Ruling

1. H. Ford & Co. Limited-v-Compagnie Furness (France) 1922 2 KB 797

2. Halsbury Laws of England 4^th Edition, Vol. 2 Para. 515

3. Section 4 of the Limitation of action Act

CASE NOTES

In this case, an application for stay pending reference to arbitration was accompanied by a request that filing of the Defence be stayed pending the determination by the court on a preliminary point of law . The preliminary point was whether the Plaintiff was disentitled to any claim having failed to refer its claim to arbitration within 12 months of the Defendant's disclaimer of liability.

The arbitration agreement provided that if the Defendant company disclaimed liability to the insured for any claim, such claim be referred to arbitration within 12 calendar months from the date of the disclaimer. The Plaintiff failed to properly institute the arbitration process and more than 12 months lapsed. The defendant therefore was of the view that the Plaintiff was now too late to arbitrate and indeed even too late to claim at all.

The court held that the Plaintiff was, indeed, too late to appoint an arbitrator or claim there having been no reference to arbitration within 12 months of the repudiation. The court agreed with the Defendant that the clause imposing the contractual deadline was a condition precedent to a valid claim as was held in the case of H. Ford & Co. Limited-v-Compagnie Furness (France) 1922 2 KB 797 where a clause to similar effect was upheld.

The court quoted the following holding in the H. Ford case (supra) with approval:

"Therefore as the jurisdiction of the arbitrator was only given to him by the consent of the parties and the parties agreed that the arbitrator if appointed at all should be appointed within a certain time, it seems to me to follow that as that time has elapsed, neither party had power to appoint an arbitrator unless the other party consented." (at page 810)

The court also upheld the Defendant's argument that there was no longer any cause of action available to the Plaintiff as the the matter was time barred. The court noted that no application had been made to extend the limitation period, if that were possible. The court upheld the following comments in 4^th Edition of Halsbury Vol. 2 Para. 515:

"The parties to an arbitration agreement may, if they wish, contract that no arbitration proceedings shall be brought after the expiration of some shorter period than that applicable under the statute."

The learned judge held that the above words answered the Plaintiff's suggestion that the matter was governed by section 4 of the Limitation of action Act. The court was of the view that the section of the Act merely gives a maximum time limit within which a suit may be brought and thus parties may agree to be limited to a shorter time.

Pamela Akora Imenje v Akora ITC International Ltd & Another

Reported by: PAUL N. MUSYIMI

CASE DETAILS

COURT: High Court, at Milimani

CASE NO: Civil Suit No. 368 of 2005

JUDGE: Waweru J

DATE: 17^th August, 2007

 

CASE OUTLINES

Arbitration-application for stay of proceedings-Section 6(1) of the Arbitration Act, 1995-plaintiff filing suit in breach of articles of association-articles providing for mandatory settlement of disputes by arbitration- whether the Plaintiff can apply under section 6(1) for stay of proceedings and reference to arbitration

 

Civil Practice and procedure-striking out suit-the Defendant urging striking out of suit in submissions against an application-whether striking out order may be granted without a formal application for it on the court record

 

CASE SUMMARY

The ruling reported dealt with the following two issues:

1. Whether the Plaintiff can apply for stay of proceedings under section 6(1) of the Arbitration Act, 1995;
2. Whether an order striking out the suit can be granted without a formal application in the court record.

Held:

The court held as follows on the foregoing issues:

1. From the wording of section 6(1) of the Arbitration Act, 1995, it is clear that it is available only to the defendants.
2. An order striking out the suit is too drastic in nature to be granted without a formal application on the record of the court.

CASE NOTES

The court was ruling on an application by plaintiff under section 6(1) of the Arbitration Act seeking stay of the proceedings and reference to arbitration dated 12^th October 2005.

 

Apparently the Plaintiff, a member of the Defendant Company, had filed the instant suit in default of the Company's articles of association. The Articles of association provided mandatory settlement of disputes by arbitration. The Plaintiff failed to invoke the method provided by the articles and was now, through the vehicle of the instant application, seeking to have recourse to section 6(1) of the arbitration to refer the matter to arbitration.

 

The Plaintiff cited as the main ground for the application the fact that the Defendants had neither entered appearance nor filed defence in the suit.

 

On their part, the Defendants objected the entire suit stating that the same was bad in law and that it constituted abuse of the process of the court given that the articles of association of the 1^st Defendant provided for a mandatory mode of settlement of disputes by arbitration which the Plaintiff had failed to invoke. The Defendants therefore urged the court to strike out the entire suit.

 

The judge ruled that the Plaintiff's application was misconceived as having chosen to file a suit instead of invoking the arbitration clause in the articles of association of the 1^st Defendant; she could not purport to later have recourse to section 6(1) of the Arbitration Act. The court held that from their wording, the provisions of section 6(1) of the Arbitration Act, 1995 is available only to the defendants. Therefore, the Plaintiff having made her bed by filing the suit, she had to lie by standing or falling by it. The court therefore dismissed the Plaintiff's application with costs.

 

The court, however, avoided striking the entire suit in limine as the Defendants had urged in their submissions. In this, it cited the fact that no formal application was on record for the same. The court held that the order striking out the suit was too drastic in nature to be granted without a formal application on the record of the court.

VIOLATION OF CONSTITUTIONAL RIGHTS NULLIFIES PROSECUTION

Reported By Nicholas Okemwa

Nairobi

Republic v Amos Karuga Karatu [2008] eKLR ()

High Court of Kenya at Nyeri

M. S. A. Makhandia (Judge)

26th May 2008

A prosecution mounted in breach of the law is a violation of the
rights of the accused and it is therefore a nullity. It matters not
the nature of the violation. It matters not that the accused was
brought to court one day after the expiry of the statutory period
required to arraign him in court.

On 26th May 2008, Mr. Amos Karuga Karatu who had been charged with
the offence of murder was set free by the Nyeri High Court due to the
fact that his constitutional rights had been violated.

Mr. Karatu had pleaded not guilty to the charge and his trial was
initially fixed for 13th December 2006 but eventually commenced on
4th January 2007 before Justice Makhandia. The prosecution called a
total of 10 witnesses and closed their case on 9th April 2008.

After the close of the prosecution's case, Mr. Gathiga Mwangi,
counsel appearing for Mr. Karatu, made brief submissions on the fact
that the accused had no case to answer. In these submissions, he
alluded to the alleged violation of Mr. Karatu's constitutional
rights enshrined in section 72 (3) (b) and 77 (1) of the Constitution
of Kenya. He contended that the accused was arrested on 19th January
2006 but was charged on 9th June, 2006 over 5 months later. This was
alleged to be a violation of the accused constitutional rights as he
ought to have been charged within 14 days upon his arrest and tried
within a reasonable time. The delay according to counsel had not been
sufficiently explained by the investigating officer. He maintained on
the premises that no prima facie case had been made out by the
prosecution in the circumstances to warrant the accused being put on
his defence.

Mr. Orinda, the Principal State Counsel, opted not to respond to
those submissions. All he said was that he would rely on the evidence
on record and that indeed a prima facie case had been established
against the accused.

The issue of the violation of Mr. Karatu's constitutional rights
arose from the cross examination of the investigating officer, Mr.
Mwangi, who stated that though he was through with conducting the
investigations within two weeks, he had taken 6 months to bring the
accused before the court due to the processing of the file through
the offices of the DCIO, PCIO and the state counsel.

The court took issue with the investigating officer's explanation of
the delay in bringing the accused before the court. It noted that the
investigating officer did not even explain what the offices of the
DCIO, PCIO and the state counsel were required to do with the file.
The court then proceeded to examine whether this explanation passed
the litmus test set out in section 72 (3) (b) and 77 of the
Constitution, that is, that the accused person despite the delay was
brought before a court as soon as was reasonably practicable and,
that accused would be accorded a fair hearing within reasonable time.

The court found the investigating officer's explanation to be
wanting. Justice Makhandia stated that a period of 6 months delay
could not be explained away on the basis that the investigating
officer's hands were tied and he could do nothing due to the
procedure of processing the investigations file in their systems. He
further remarked that the constitutional and fundamental rights of an
accused person could not be sacrificed at the altar of the so called
police procedures.

The court took the view that the law of the land had to be obeyed
particularly by those entrusted to enforce it. It said that if the
supreme law of the land stated that an accused person had to be
brought before court within 24 hours in the event of a non-capital
offence and 14 days for a capital one, that law had to be strictly
observed and failing this, the police had a burden cast on them to
satisfy the court that the accused had been brought before court as
soon as was reasonably practicable. The court held that the
investigating officer was unable to discharge that heavy burden in
the circumstances of the case. It opined that the offices of the
investigating officer, the DCIO, PCIO and the state counsel were lax,
did not treat the case with the seriousness it deserved and had no
qualms trampling upon Mr. Karatu's constitutional rights more so the
fair trial provisions of the Constitution of Kenya.

The court went further to opine that this was no longer the 1980's
where the fundamental rights of the citizens were trampled upon by
the police and the courts of law then could not stand up to challenge
such conduct. The court took note of the Court of Appeal's recent
remarks that the courts chose to see no evil and hear no evil, taking
part in a conspiracy of silence that gave rise to the infamous Nyayo
House torture chambers, a history which the courts could never be
proud of. The court said that this was never be allowed to happen
again in this country and that it was a result of the foregoing
legacy that the citizens of this country had lost faith in the
Judiciary particularly when it came to the enforcement and securing
the constitutional and fundamental rights of the citizenry.

The court proceeded to state that the time was nigh for the
Judiciary to rise to the occasion and reclaim its mantle by
scrupulously applying the law that sought to secure, enhance and
protect the fundamental rights and freedoms of an accused person. A
prosecution mounted in breach of the law was a violation of the
rights of the accused and it was therefore a nullity. It mattered not
the nature of the violation. It mattered not that the accused was
brought to court one day after the expiry of the statutory period
required to arraign him in court. Finally the court stated that it
mattered not that the evidence available against him was weighty and
overwhelming for as long as that delay was not explained to the
satisfaction of the court, the prosecution remains a nullity.

The court relied on the decision in Albanus Mwasia Mutua v Republic
where the court stated that at the end of the day, it was the duty of
the courts to enforce the provisions of the Constitution, otherwise
there would be no reason for having those provisions in the first
place.

Ultimately, the court held that the accused having been brought to
court in breach of the provisions of section 72 (3) and 77 (1) of the
constitution, his continued prosecution was illegal and a violation of
his constitutional rights. It also ruled that no prima facie case has
therefore been made to warrant the accused being put on his defence.
Mr. Karatu was subsequently acquitted and set free.

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COURT OKs FOREIGNER'S DENIAL OF WORK PERMIT

Republic v Minister for Home Affairs & 2 others ex parte Leonard
Sitamze [2008] eKLR

High Court at Nairobi, Justice J.G. Nyamu, April 18, 2008.

The High Court has declined to reverse the decision of the Principal
Immigration Officer to refuse to issue a work permit to a foreign
national.

Leonard Sitamze, a Cameroonian national, had filed an application in
the High Court seeking a judicial review of the decision of the
Minister for Home Affairs and the Principal Immigration Officer in
which his application for a Class "H" work permit was declined. A
Class H permit is one of several types of work permits which an
Immigration Officer may issue to a foreigner. The discretionary power
to issue the permits is given to the Immigration Officer by section 5
of the Immigration Act.

Sitamze had told the court that he had been running a successful
company in Kenya with the aid of his wife, Josphine, a citizen of
Kenya, and that he had been issued with both a trading license by and
a certificate of good conduct. He stated that the police had
wrongfully accused him of not being in possession of valid
immigration documents and subjected him to intimidation, harrassment
and inhuman treatment. Sitamze termed the decision of the Minister
and Immigration Officer as discriminatory and unjust and amounting to
a denial of his right to the quiet use and enjoyment of his property,
his right to found a family as enshrined in Article 5 of the
Declaration of the Human Rights of Individuals Who Are Not Nationals
of the Country on Which They Live and Article 6(2) of the
International Covenant on Economic, Social and Cultural Rights
(ICSR).

He asked the High Court to issue the special order of mandamus to
compel the Minister to issue him with a class "H" work permit and an
order of Prohibition to forbid the Commissioner of Police from
harassing him, arresting him or hindering his free movement in Kenya.


The Minister, the Commissioner of Police and the Principal
Immigration Officer, who were named as the respondents to the court
action, all opposed Sitamze's application. They relied mainly on the
argument that they had acted in accordance with the provisions of the
Immigration Act empowering the Minister to issue a permit to a
foreigner after all the conditions for the issuance had been
satisfied and to direct the removal from Kenya of any person whose
presence is found to be unlawful. A classified document was produced
to the Court on behalf of the state as part of the Immigration
Department's evidence that Sitamze's presence in Kenya posed a threat
to national security.

Judge J. Nyamu agreed that indeed, the Minister for Home Affairs is
authorized by law to issue work permits to foreigners and in that
regard, the Minister would the best person to decide whether a
foreigner who seeks a permit has met the requirements provided by
law. In the Judge's view, it would be wrong for the Court to
interfere with the decision made by the Minister unless it is shown
that the decision has been made in abuse of discretion or of a legal
duty. The same considerations applied to the actions and decisions
taken by the Kenya Police who had a legal mandate to maintain law and
order and to detect and prevent crime. "Work permits are not an
automatic entitlements and have to be issued in accordance with the
domestic law" the Judge further noted. "They could be refused on
reasonable grounds and in the national interest". In any case, the
Court was satisfied that even though the fundamental rights enshrined
in the Constitution of Kenya were to be enjoyed by both citizens and
foreigners, Sitamze had failed to establish that he had been
subjected to torture or inhuman punishment by the police.

The Court appreciated that under the ICSR, to which Kenya was a
party, the right to work is a fundamental right. Sitamze was entitled
to the right to work and to seek redress if the right was infringed.
Further, under the Declaration on The Human Rights of Individuals Who
Are Not Nationals of The Country in Which They Live, he was entitled
to the right to choose a spouse, to marry and to found a family.
However, as an alien, the same Declaration obliged him to observe the
domestic laws of the State in which he was present and to regard with
respect the customs and traditions of the people of that State.
Sitamze had failed to prove that he had been discriminated against or
that his right to found a family had been violated.

Justice Nyamu was satisfied that the State had adduced sufficient
evidence to demonstrate that Sitamze's presence was a threat to
national security and this was a valid reason to decline to issue him
with a work permit. It would be wrong, he further observed, to
discriminate against a foreigner where he has created legitimate
employment for himself and his family but where there are national
security concerns, the Minister would be entitled to decline to issue
a work permit or to renew an existing one. Such a decision would not
constitute a violation of the constitutional and international human
rights to work and to establish a family life. The foreigner would
have a choice to emigrate with his family to his country of origin.
In this case, however, the Court was satisfied that Sitamze had
failed to prove that his right to family had been breached and that
in any event, the national interest would prevail.

Ultimately, the Court found that there was no merit in Sitamze's
application and it was dismissed.

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Reported by Michael Murungi, Advocate
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Law Society of Kenya v Attorney General [2008] eKLR

High Court at Nairobi, Justice J.B. Ojwang, May 22, 2008.

The Law Society of Kenya got a temporary reprieve when the court
directed that

suits that were filed under the repealed Workmen Compensation Act,
Cap 236, should continue to be heard under that law until the hearing
of a petition filed by LSK on 14th April 2008.

The orders were made by High Court Judge J. B. Ojwang on 22nd May
2008 following LSK's complaints that the recent Work Injury Benefits
Act, 2007, which entered into force on 20th December, 2007, has no
provision which would enable parties to transfer suits currently in
the courts to a similar juridical forum thus leaving the parties who
have pending cases in courts without a legal redress avenue.

In its petition LSK challenges the constitutionality of some of the
provisions of the new law, such as Section 16 which prevents an
employee from instituting action in court for recovery of damages for
injuries or diseases specified in the Act. The society disputes
Section 23 (1) which gives the Director of Occupational Safety and
Health Services the power to decide any claim or liability, they
argue this is akin to giving the director judicial powers which is
vested in courts.

In the application before Judge Ojwang LSK asked the court to direct
that suits pending in courts be subjected to the normal judicial
adjudicative process. An affidavit by Ms. Betty Nyabuto, in her
capacity as the LSK's secretary, stated that the following the
enactment of the new law, LSK had received numerous complaints from
its members. She stated that since the passing of the new law the
subordinate courts have consistently upheld that in view of Section
58(2) of the Work Injury Benefits Act, 2007 they would not hear any
matter covered by the Act. Consequently the courts have stood over
generally matters related to compensation of employees for work
related injuries and diseases.

The pending litigation had in each case been commenced on the basis
that the repealed Workmen's Compensation Act was in force. The Work
Injury Benefits Act, 2007, however contains no transitional
provisions. Section 58(2) of the new enactment provides: "Any claim
in respect of an accident or disease occurring before the
commencement of this Act shall be deemed to have been lodged under
this Act."

It was further averred that the limitations in the new law have
adversely affected the practice of law. To further support its
application, LSK filed several supplementary affidavits from
advocates in practice throughout the country. For instance, Mr. Peter
Mwaura Kamau, a Nairobi lawyer, stated that when the new law commenced
he was handling a case whose judgement was delivered on 8th January,
2008 in favour of the plaintiff but the plaintiff has been unable to
enforce the decree because the new law has ousted the jurisdiction of
the courts in dealing with such matters.

Another Nairobi lawyer, Mr. P. Ngunjiri Maina, in his affidavit
listed several cases which he was handling before the subordinate
courts which had became impossible to progress. Similar experiences
were recorded in the affidavits of lawyers from Mombasa, Kilifi,
Mumias and Kitale.

The application was opposed by the A-G's Principal Litigation
Counsel, Mr. Ombwayo, who contended that LSK's application was
misconceived as that it was based on a misinterpretation of the law;
LSK lacked locus standi and that section 58 did not affect pending
suits, and so was not unconstitutional

Mr. Ombwayo submitted that LSK would not suffer irreparable loss if
its prayer for stay pending hearing of the main cause was not
answered and that the on going implementation of the Work Injury
Benefits Act, 2007 ought not to be interrupted save by judgement on
the main petition.

In oral submissions before the court, Mr Ngatia, submitted that the
Work Injury Benefits Act, 2007 which was passed towards the end of
the life of the 9th Parliament, has occasioned operational
implications with a direct impact not only on the basic rights of
citizens, but also on the functioning of the judiciary as the
constitutional organ entrusted with the mandate of dispute settlement
in justiciable matters.

Mr. Ngatia stated that before the new law's date of commencement,
there were many suits pending, founded on the repealed Workmen's
Compensation Act. Employers, who were generally the defendants in
such suits, he noted, have now invoked section 58(2) of the Work
Injury Benefits Act, 2007 to stop the suits.

The plaintiffs in such suits, the learned counsel urged, had been
restrained in their use of the judicial process to resolve their
claims, without being accorded some other forum where their pending
suits could be resolved. The effect, Mr. Ngatia submitted, was that
the Work Injury Benefits Act, 2007 had denied such suitors a legal
process by which they could address their grievance.

On his part, Mr. Guserwa for COTU, an interested party in the
application, supported LSK's application and urged that all
work-injury cases filed before the date of commencement of the new
law should continue to be litigated under the repealed Workmen's
Compensation Act, and that only suits arising after that date should
be filed under the provisions of the new enactment.

While the complex issues raised had to await final determination of
the main suit, the judge noted that there was no contest that a large
number many workmen's compensation cases remained pending before
Magistrates' Courts throughout the country. In some cases, decrees
had already been issued in favour of particular parties but they had
been rendered incapable of execution.

The Judge held that the suitors in such cases would have been
exercising their fundamental-rights, as secured in Chapter V of the
Constitution of Kenya, and so they had legitimate expectations that
the judicial process would handle and conclude their cases. The
enactment of the Work Injury Benefits Act, 2007, so far as it goes,
would be a normal exercise of the legislative power of the Kenyan
Parliament, in accordance with the terms of s.30 of the Constitution
of Kenya.

However, room for conflict between the Constitution's empowerment to
Parliament, on the one hand, and the Constitution's safeguards for the
citizen's rights, on the other: and whenever such a conflict occurs,
then, ordinarily, it is the High Court's mandate to make a sensible
interpretation, and to declare the correct understanding of the
Constitution.

"I have no doubts that irreparable harm will in the first place
result for the suitors whose cases before the Magistrates' Courts now
stand in limbo; this harm, by inference, may be attributed to the Law
Society of Kenya, the organization of Advocates who have the conduct
of the pending cases" the judge stated.

In his concluding remarks the judge found that "the lower risk of
injustice requires that the suits now pending before the Magistrates'
Courts, which have implications for the accrued rights of the suitors,
ought to be resolved and concluded without delay."

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Reported by Esther Nyaiyaki

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CIVIL SERVANTS CORRESPONDENCE PROTECTED BY PRIVILEGE

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.

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Reported by BENJAMIN MBATIA of KLR

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.