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Kituo Cha Sheria Celebrates Joseph Ojango Ongaya – a true Grassroots Justice Champion

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“Heroes are made by the paths they choose, not the powers they are graced with.”Brodi Ashton, Everneath

Goal 16 of the sustainable development goals speaks to promoting peaceful and inclusive societies for sustainable development, providing access to justice for all and building effective, accountable and inclusive institutions at all levels. In promoting access to justice at the grassroots level, Kituo Cha Sheria works with trained community paralegals – men and women doing sterling pro-bono work within their communities. These dedicated and remarkable people generously donate their time, expertise, and energy to help close the gap in access to justice by offering credible and accountable legal aid services to indigent persons within their society.

Our community paralegals bring Article 48 of the Constitution of Kenya to life at the grassroots level;  Mzee Joseph Ojango Ongaya of the Kibera Community Justice Centre (Nairobi County) was one such champion.

Mzee Joseph Ojango served as chairman of the Kibera Community Justice Centre working in partnership with Kituo cha Sheria as a true human rights champion since 2008 until his passing on 3rd December 2017. Mzee Joseph Ojango Ongaya was born in 1958 to Mzee Ongaya Ojango and Veronica Onienga in Nyakwaka Vilage, Asonga Sub-location, Ugunja Constituency, Siaya County. Mzee Ojango received his formal education through the O-level school system where he excelled in his studies. Brother Ojango was born into a Catholic family and baptized at the St. Francis Rangala Parish. He later joined the St. Teresa’s Catholic Church in Eastleigh next to Pangani where he lived becoming a strong member of the church. Ojango was employed at Kenya Breweries Limited where he served dutifully till his retirement. After retirement he was involved in politics (Chairman of Orange Democratic Movement-Starehe Constituency, Nairobi County) social and voluntary works (NGO’s- Kituo Cha Sheria, IPOA, Kenya Human Rights Commission, among others) as well as various church activities. Mzee Ojango was truly blessed and served as a blessing to many since birth in 1958.

He was preceded in death by his loving parents, brother Lucas Ongaya, sister Mackrine Akoth and son Felix Manon Otieno. He lives to Cherish his wife Wilfridah Adhiambo, brother Mathews Magero, sisters Maria and Domtilla and his children Paul Victor Budung, Daughter in law Mercy Otieno,Beatrice Akinyi, Erick Omondi Mandoz El Prezida and Linet Atieno. Grandchildren Rachel Nelly, Liam Joseph Kyle Joseph and a host of nephews, nieces, cousins and other loving relatives and friends.

Kituo cha Sheria wishes to sincerely condole with Mzee Ojango’s family; we wish them the fortitude and presence of mind to go through this trying moment in their lives.

Community paralegals go the extra mile in doing their work, in some cases more than other permanent staff. Community paralegals are highly dedicated people, highly motivated by the desire to make tangible contributions to their communities by reaching the vulnerable and marginalized. They continuously develop their capacities to participate actively and constructively in the promotion of access to justice.

We celebrate our grassroots justice champions!

RCKM

Kituo Cha Sheria

We care for justice.

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Kituo and 16 days of Activism

16 days campaign

This year’s theme announcement for the 16 days of activism is: “Orange the World: Leave No One Behind-End Violence against Women and Girls.” Break the silence on Sexual Gender Based Violence. This is the third year that Kituo is participating in the 16 days of activism campaign  and our ambition is to engage you to take action and participate at whatever level you can to appreciate and acknowledge survivors of sexual gender based violence (SGBV).

Our Haki blog will feature your informative articles together with your photos on the action you are taking on Sexual Gender Based Violence. START NOW by going to our Twitter and Facebook pages [https://www.facebook.com/kituo.chasheria and https://twitter.com/KituoSheria and watch the videos, comment, and tell us what you have learnt, and how we can reach you to promote and live in a world that is free from SGBV also visit our Haki blog during the 16 days for more [https://kituochasheria.wordpress.com/]

Kituo wants you to get active and to #OrangeTheWorld during this #16DaysOfActivism

Intersex Awareness Day 2017

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26th October is the Intersex Awareness Day; this is an internationally observed awareness day designed to highlight human rights issues faced by intersex people. This year the day was marked with the message of #FreeToBeMe.

The Day is an international day of grass-roots action to end shame, secrecy and unwanted genital cosmetic surgeries on intersex children.  The day also provides an opportunity for reflection and political action. Between October 26th and November 8th, organizations bring attention to the challenges intersex individuals face, culminating in the Intersex Day of Remembrance on the birthday of Herculine Barbin, also sometimes known as Intersex Solidarity Day.

A person who is intersex is someone who is neither 100% male or female; it is time we stop normalizing genital surgery on intersex infants or children since humans are not only XY and XX we are also XYY,XXYY, XX/YY,XXXY…

Interesting Facts about intersex persons:

Fact 1: Intersex is not new it has been around since the beginning of human existence.

Fact 2: Being intersex relates to biological sex characteristics, and is distinct from a person’s sexual orientation or gender identity.

Fact 3: Intersex persons are often subjected to discrimination and abuse if it becomes known that they are intersex, or if they are perceived not to conform to gender norms.

Myths about intersex persons:

  1. Intersexuality is as a result of witchcraft or a curse.
  2. Navaho – a Native American people of the Southwestern United States believed intersexual to be the supernaturally designated custodians of wealth, and any family with an intersex child born to it has its future wealth and success assured.

Indifference…

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It’s time we talk about it.

It’s neither a boy nor a girl; 9months of pregnancy, 12 hours of labor later, the mother wants to hold their bundle of joy, she wants to name them after their favorite celebrity icon (whose name half her relatives will pronounce wrong), and she is dying to hear the doctor announce their sex. The doctor looks puzzled he stammers and says “its fine we can fix this.”

Intersex persons could have one of the following conditions; External genitals that cannot be easily classified as male or female, Incomplete or unusual development of the internal reproductive organs, Inconsistency between the external genitals and the internal reproductive organs, abnormalities of the sex chromosomes, abnormal development of the testes or ovaries, Over- or underproduction of sex-related hormones Inability of the body to respond normally to sex-related hormones.

Non-binary in this article will be implying a person whose sex organs are not solely identified to be male or female.

When an intersex baby is born, abnormality, disorder, curse, problem, fix it! Are all words that are thrown around from the outset of their life. In the case of Alex Omondi, (not the real name) the parents could not afford to “fix” the situation at birth, they therefore chose to raise and socialize him to be male since a son is culturally the preferred sex.

Alex hit puberty and began experiencing misplaced features, far from what learned in science class; Alex’s voice was sharp, hips were broad, and had what appeared to be breasts. This caused a lot of ridicule and bullying. The parents were desperate to ease Alex’s embarrassment and decided visit a herbalist to help “cure” the condition. Inevitably the treatments failed. A boy’s name was as close as to being male as Alex ever got.

 At 25 Alex attempted to marry, but the law did not recognize the marriage. Basically the law does not prohibit an intersex person to marry but it only recognizes marriage between a man and a woman. Alex’s physiology would not permit them to consummate the marriage as a male. Otherwise if Alex had corrective surgery and was now male then legally the marriage would have been recognized.

As a result of not having a birth certificate or national identity card, he could not enjoy citizenship rights, including the ability to register as a voter, obtain travel documents, acquire property and get employment. Alex felt alone, disillusioned and helpless and even became secluded. To get back at life for all the lemons thrown his way, Alex joined Gaza a notorious teenage gang in Nairobi with a record of criminal activities. 1 year later a robbery went wrong. Alex was arrested and charged with the offence of robbery with violence. Alex was tried, convicted and sentenced to death .later Alex was committed to a maximum prison alongside male death row convicts, whom he shared cells and facilities with. Alex reported to have been was exposed to abuse, mockery, ridicule, and inhuman treatment, as well as sexual molestation by the other inmates.

As a result Alex sued the government for being discriminated against and disadvantaged socially as a consequence of the failure of his legal recognition as an intersex person. Hon. H.M Okwengu J , Hon. G. Dulu J and Hon. R. N Sitati J, sitting at a High Court in Milimani where the petition was heard dismissed the petition and granted the petitioner Kshs. 500,000/- for violation of the petitioners  right to protection against inhuman and degrading treatment they further ordered that in view of the ambiguity surrounding the sex of the petitioner the order for the petitioner to be held in separate and exclusive accommodation from other male convicts would remain in force. This ruling indicated that the society was not ready for a third gender. The high court suggested corrective surgery to conform to either male or female.

We all have an emotional need be to accepted by a group whether it is family, friends, co-workers, a religion, or gender, people tend to have an ‘inherent’ desire to belong and be an important part of something greater than themselves. When one walks into a room it’s not their religion, race or tribe that we first notice but whether they are male or female. Sex and gender issues are that basic in our lives. The case of Alex may be unique to him and most of us may not relate after all we consider ourselves normal.

The society is basically you and I and a majority people who in this case are “normal” and belong to the sex male or female. We are too uncomfortable to accept those that do not belong. We often throw around words like abnormal which fuels stigma and shame about an individual’s ‘body. Our laws blind to protect and even suggest surgery to make fix “them”.

About corrective surgery, this should be discussed in length. But if you cringe each time you hear the word FGM. Then you will need to brace yourself for what is coming up!

On Intersex Awareness Day, Kituo reaffirms our strong commitment to promoting a society where all persons can freely and equally express themselves with dignity, regardless of sex characteristics. When those most marginalized in society are afforded equal protection and opportunity, global security and stability are strengthened.

Increased recognition, understanding and awareness of intersex persons and their human rights strengthens democracy for all.

Lucy Kabura

FMP- Kituo Cha Sheria.

Open Letter: Stop police rape of civilians; ensure access to medical care for victims

An open letter to Cabinet Secretary for Health Dr. Cleopa Mailu, Acting Interior Cabinet Secretary Dr. Fred Matiang’i, and Inspector General of Police Mr. Joseph Boinnet.

 Stop police rape of civilians; ensure access to medical care for victims

Dear Cabinet Secretary for Health Cleopa Mailu, Acting Interior Cabinet Secretary Fred Matiang’i, and Inspector General of Police Joseph Boinnet:

Early accounts of the chaos that followed the announcement of the August 8, 2017 presidential election results indicated that rape and sexual violence occurred in affected communities. Since then, we, the organizations listed herein, in collaboration with community actors, human rights defenders, health workers, government institutions, and development partners, have received, recorded, and assisted numerous victims of sexual violence from Nairobi, Kisumu, and other parts of Nyanza and Western Region. Preliminary findings of in-depth research conducted by Human Rights Watch confirm incidences of sexual violence in Dandora, Mathare, Kisumu, and other affected areas.

So far, we have counted at least 60 cases of sexual violence committed during the August 2017 election-related violence, and the numbers are rising by the day.

The emerging cases reveal a disturbing pattern:

  • The perpetrators described by victims were mostly police officers and/or men in uniform who were deployed to protect communities affected by the election-related violence.
  • Other reported perpetrators include militia groups and gang members who took advantage of the chaos.
  • Women, girls, and men are all affected and have suffered varied forms of sexual violence, including rape, gang rape, sexual assault, indecent assault, and forced nudity, in some cases accompanied by severe physical assault.
  • Sexual violence experienced by the victims has been gruesome and terrifying. Some victims were raped collectively with others from their communities by the same perpetrators, while in other cases, children and husbands witnessed their mothers and wives being raped.
  • The majority of the victims were unable to access timely medical care, mostly due to the prevailing context of insecurity and the ongoing nurses’ strike. Some victims sought medical treatment at local clinics within their communities, but most of those facilities did not provide the required emergency and comprehensive medical and forensic post-rape care. In some cases, victims were asked to pay for the completion of Post-Rape Care and P3 medical forms, contrary to existing laws. Several victims urgently need medical treatment for resulting injuries and illnesses, as well as counselling and psychosocial support.

The emerging cases and patterns of sexual violence reflect a worrying but familiar reality in Kenya. Almost 10 years ago, the Commission of Inquiry into Post-Election Violence following the 2007 elections documented at least 900 cases of rape and other forms of sexual violence, which it termed “a tip of the iceberg.” The current political context related to the fresh presidential elections scheduled to take place on October 26, 2017 signals the potential for increased incidences of sexual violence. Therefore, the state should urgently: initiate measures to protect individuals and communities that may be vulnerable to sexual violence; ensure timely, accessible, affordable, quality, and comprehensive medical and forensic services for any person who may be a victim of sexual violence during this political period; and expeditiously investigate and prosecute perpetrators.

We wish to call your attention to the following concerns:

To Acting Interior Cabinet Secretary Dr. Fred Matiang’i and Inspector General of Police Mr. Joseph Boinnet:

  1. We urge you to issue a public notice outlining the protocols and code of conduct to be followed by police officers in the conduct of security operations, including specific circumstances under which police may be permitted to enter the homes of civilians. All Kenyans are entitled to know the laid down rules and procedures that guide police conduct during operations, so that they can be aware and take appropriate action when a line is crossed.
  1. We call on you to issue a written and public caution to all police officers to desist from committing any form of sexual violence, or other crimes or violations in the conduct of their duties.
  1. We call on you to issue a written and public caution to all police commanders who are responsible for specific police operation teams to be vigilant and take immediate and decisive action against any police officer suspected or known to have committed sexual violence or other crimes in the conduct of their duties.
  1. We further call on you to work with local actors in accordance with the community policing policies to enhance security within affected communities so as to mitigate the potential for sexual violence by civilians who may take advantage of existing chaos to commit crimes.
  1. We urge you to take swift and proactive action to strongly condemn and investigate reported cases of sexual violence and to put in place mechanisms that will support survivors to come forward and report their cases in a secure, sensitive, and timely manner without fear of reprisals from perpetrators, especially in cases involving police officers; such actions are in service of the justice and accountability that are owed to the entire Kenyan populace.

To Cabinet Secretary for Health Dr. Cleopa Mailu:

 You have, on numerous occasions, explicitly noted the significant strain caused by the ongoing nurses’ strike on the provision of health care services across the country. This burden is even higher in situations that require emergency interventions to avert life-long health consequences, such as pregnancy and HIV in people who have suffered sexual violence. Moreover, the inability of survivors of sexual violence to access timely and appropriate medical services significantly hampers the collection and documentation of medical forensic evidence that is vital to support accountability efforts.

  1. We therefore urge you to expeditiously work with the Governors, county government health officials, and development partners in affected areas and potential hot spots to put in place contingency measures to ensure that sufficient personnel are available in health facilities to provide emergency post-rape care and other services during this period.
  1. We urge you to work with the Governors and county government health officials in affected areas and potential hot spots to ensure the provision of sufficient post-rape care treatment and forensic commodities in health facilities, especially local health facilities that are closest and most easily accessible to communities.
  1. We call on you to issue a written and public notice reminding health providers and administrators that they are obligated to provide free medical treatment to survivors of sexual violence, including completion of Post-Rape Care and P3 medical forms, in accordance with the Sexual Offences Act of 2006 and Sexual Offences (Medical Treatment) Regulations of 2012. To this end, we urge you to work with relevant county government officials to establish working relations with private health facilities that may be most accessible to affected communities in order to facilitate provision of free medical treatment to survivors of sexual violence.

Your expeditious action is not only required under our Constitution and laws, but also necessary to assure all Kenyans, survivors, their families, and communities that the state does not condone sexual violence committed by the police or any other person, and will take all measures necessary to end impunity for these violations.

Sincerely,

Physicians for Human Rights

Kituo Cha Sheria-Legal Advice Centre

Coalition on Violence against Women

Women’s Link Worldwide

International Commission of Jurists-Kenya

Independent Medico-Legal Unit

Journalists for Justice

Shimo La Tewa Women’s Prison Paralegal Training

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Kituo Cha Sheria was at the Shimo La Tewa Maximum Security Prison for prison paralegals training. The training was taking place at the Women’s section which currently holds 250 women prison and 30 children. Majority of these prisoners are remandees awaiting conclusion of their cases both at trial or appeal level with most being indigent and cannot afford legal representation.

The training was conducted for five days beginning Monday 4th September 2017 to Friday 8th   September 2017 and culminated in a graduation ceremony and awarding of certificates to the paralegals.

Guests who graced the occasion included Kituo Board member Dr. Linda Musumba, Kituo’s Coast Regional Coordinator Ms. Annette Mbogoh, a representative from the Mombasa Law Society and the Officer-In Charge of the Prison.

The chief guest was Ms. Stijn Janssen the first secretary in the Embassy of the Kingdom of the Netherlands, Nairobi.

Kituo has an established prison justice centre within the facility and has previously conducted a similar paralegal training in June 2016 where 30 paralegals were trained in the women’s prison. However, of the last batch trained only 3 prison paralegals remained hence the overwhelming need for a training of paralegals.

The prison justice centers have been a source of hope for many and it has helped even its own members to be released on appeal and Power of Mercy based on their conduct while serving sentence.

Because of this mass release and transfers, the Prison justice center had remained desolate. This gap is attributed to prison transfers, acquittals and release on power of mercy while others have served their sentence.

The prison Justice program is one of Kituo’s successes in ensuring that justice is attained to and for all and through this initiative, Kituo has established a relationship with the prison administration and the Judiciary that has borne a lot of fruits.

One of the goals of Kituo’s prison paralegal trainings remains to decongest correctional facilities by empowering the prisoners and remandees on self-representation in court, how to adduce evidence if any, how to cross examine witnesses, how to write their submissions, how to make mitigation statements, how to make interim applications such as those for bond, bail and making applications for Community Service Order.The following topics covered were; Basics of Paralegalism, Introduction to Human Rights, Bill of Rights (Chapter 4 of Constitution), Criminal Procedure Code Chapter 75 Laws of Kenya, Powers of Court, Provisions relating to all Criminal investigations, Mode of taking and recording Evidence in Trials, Procedures in Trials before a Subordinate Court and High Court, Sentences and Executions, Appeals, Self representation (Criminal Approach), Power of Mercy Act, The Prisons Act and Community Service Order.The training was conducted by Kituo officers Valarie Ang’awa and Kibibi Chai together with Kituo Volunteer Advocates based in Mombasa.

The training culminated in a colourful graduation ceremony witnessed by representatives from partner organizations and agencies including the Kenya Prisons Service and the Kenya National Commission on Human Rights (KNCHR).

A total of 32 participants were trained, 27 of whom were inmates and 5 prison constables. The inmates comprised of those on long sentences, pre-trial detainees charged with capital offences as well as the condemned. Speakers at the ceremony urged the trained paralegals to work hard and use skills they have acquired to benefit themselves and fellow inmates.

RCKM.

Kituo Cha Sheria.

A Claim against the Estate and a Claim on Inheritance: The Jurisdictional Challenge

A Claim against the Estate and a Claim on Inheritance: The Jurisdictional Challenge

1.0 Introduction

The question of jurisdiction is a subject of great controversy and in most court cases the court has been called to make a determination on whether it has jurisdiction at the preliminary stage of proceedings.

Though it is reasonably plain that the jurisdictional question ought to be raised at the earliest opportunity there is no bar to the question being raised at any stage in the proceedings[1].

Such is the importance of the jurisdictional question that a court properly directing itself is obliged to decide the issue based on the material placed before it right away without any hesitation. Once the court in its opinion finds that it has no jurisdiction without any ado, it is expected to discontinue any proceedings before it.

These were the sentiments that were expressed in the celebrated case of The Owners of Motor Vessel “Lillian  S”   -vs- Caltex Oil Kenya Ltd, [1989] KLR 1.

Simply jurisdiction is the power of a court to hear a case; though as simple as it may sound the whole subject of jurisdiction is a rather complicated and for the reason courts have been called severally to make a determination on this at times vexing subject.

Nothing has vexed the courts and practitioners most recently than the question, which between the Environment and Land Court and the Succession Court has jurisdiction to determine the question of ownership where a claim is brought against the estate or a claim is brought on inheritance.

This paper seeks to advance the argument that while both courts are mandated to determine the ownership of a deceased estate; the jurisdiction of each is invoked differently at the point of whether a claim is against the estate of the deceased and on whether a claim is on inheritance.

1.1 Constitutional and legislative mandates of the Environment and Land Court and the Succession Court

This jurisdictional question is best understood by first laying a basis on the Constitutional and legislative mandates of each of the courts. Article 162 (2) of the Constitution enjoins Parliament to establish courts with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land.

In this regard under Section 4 of the Land and environment Act, Cap 12A the Land and Environment Court is established. Section 13 of the Act on the other hand empowers the court in exercise of its jurisdiction under Article 162 (2) of the Constitution to hear and determine disputes relating to land and the environment.

The gist of Article 162 (2) of the Constitution of Kenya is that it establishes specialized courts operationalized through legislation and in the instance of the Environment and Land Court, the Environment and Land Court Act that set up Environment and Land Court to specifically deal with disputes relating to the environment and the use and occupation of and title to land.

This means that the Environment and Land Court is exclusively clothed with with the requisite jurisdiction to deal with the issue issues or disputes to do with title to land.

The Succession Court on the other hand, though a court with the status of the High Court as envisaged under Article 162, is limited to determining cases of intestate and testate succession and to the administration of estates of deceased persons. Section 2 (1) of the Law of Succession Act provides as follows:

“Except as otherwise expressly provided in this Act or any other written law the provisions of this Act shall constitute the law of Kenya in respect of and shall have universal application to all cases of intestate and testamentary succession to the estate of deceased persons dying after commencement of this Act and to the administration of estates of those persons”

Having established the constitutional and the legislative mandates of the two courts this paper seeks to delve on the vexatious question on which court has the jurisdiction to determine the question of which between the Environment and Land Court and the Succession Court has jurisdiction to determine claim against the estate of a deceased and a claim on inheritance.

 

1.2 Distinction between a Claim against the estate of a deceased and a claim on inheritance

For better drawing of this distinction it is important to interrogate a claim based on customary trust and a claim by a heir by virtue of being a child of the deceased

In most communities, the Kikuyu especially, customarily the elder brothers held the father’s parcels of land in trust for his other siblings.

It is argued that this custom developed from the colonial legacy of oppression and violence leading to the male heads of the family living in constant fear of either incarceration or death in the hands of the colonial masters.

It was therefore prudent for the father to leave the property in the hands of the eldest son to hold in trust for the other siblings. This is of course considering the patriarchal society where the wife could not hold property.

The claim by the deceased’s siblings is always based on the ground that the fact that the deceased being an elder brother holds a parcel of land in trust for himself and them.

It should be interpreted and rightfully so that the siblings’ claim is that the property does not form part of the estate of the deceased but is held by deceased in trust for him and the siblings.

It suffices to mention that in effect, by the siblings laying a claim on the basis of trust, they lay a claim as owners and not as heirs of the deceased.

A claim on inheritance on the other hand, is by a person who by law is legally entitled to be a heir of the deceased estate, in this regard either as a beneficiary or a dependant.

In this regard, a distinction between a claim against the estate of a deceased and a claim on inheritance comes out clearly. A claim by the siblings of the deceased is that the title to the parcels of land is held in trust for them.  Indeed this is a claim for proprietary right. It is a challenge to the title held by the deceased and is therefore a claim against the estate of the deceased. The claim by heirs is an interest as dependants or direct beneficiaries of the deceased and therefore a claim on succession or inheritace.[2]

This paper then analyses the most appropriate forum to bring each of the claims.

1.3 The appropriate forum to bring each of the claims

It is contended in this paper that the Succession Court lacks jurisdiction to determine a claim against the estate of the deceased as in effect the court would be making a determination on the ownership of title which is appropriately handled by the Environment and land Court.

The Law of Succession does not confer on the Succession Court the power to determine the ownership of a parcel of land or make a determination/ declaration that a trust exists.

This means therefore that where there are third parties having a claim of ownership against the deceased or the estate of the deceased then that falls under the exclusive jurisdiction of the Environment and Land Court.

This argument finds fortification in the case of where the court held as follows:

Secondly, I do not think that these Succession proceedings are the appropriate way to challenge the title of the deceased to the said properties.  Their claim of a trust is or ought to be the subject matter of a separate suit or proceedings.  The objectors have to prove the trust and thereafter seek revocation of the title and/or partition thereof.  This requires declaratory orders of the existence of trust.  This is not the function of a Succession court where the claimant is neither a beneficiary nor dependant.  Succession proceedings are also not appropriate for the resolution of serious contested claims against an Estate by third parties. In this case, the objectors ought to institute separate proceedings to articulate or vindicate their claims/rights…I therefore do hereby hold that this court has no jurisdiction to determine the claim of trust or to give any relief in respect thereof.[3]

In a similar decision[4] the court held that the succession court has no jurisdiction to resolve a claim brought against the estate /the proprietary interest on land based on an alleged trust and the appropriate forum is the land and Environment Court. The court held thus:

The mandate of the probate court under the Law of Succession Act is limited. It does not extend to determining issues of ownership of property and declaration of trusts.  It is not a matter of the probate court being incompetent to deal with such issues but rather that the provisions of the Law of Succession Act and the relevant subsidiary legislation do not provide a convenient mechanism for determination of such issues. A party who wishes to have such matters resolved ought to file a substantive suit to be determined by the Environment and Land Court.

It is important to note that what the court is stating is that the Succession Court being a court of the same status as the Environment Court is not incompetent rather the forum is not appropriate and conducive for the entertainment of such claims.

Succession proceedings on the other hand are appropriate forums to handle disputes relating to the heirs of the deceased and not by third parties having claims against the estate. They are appropriate forums to handle issues regarding the distribution of the free estate of the deceased.

1.4 Claims where a beneficiary has sold property belonging to the estate of the deceased

A rather complex scenario arises where a beneficiary transfers a property forming part of the estate of the deceased to a third party after the demise of the deceased.

The question that begs in this instance is whether this is a claim on ownership against the registered third parties or the other beneficiaries can bring a claim based on Succession.

The other question is on whether the legality of such a transfer can be sustained in a Succession Court and whether the Succession Court can annul and reverse such a transaction.

When faced with this question under similar facts Justice Limo expressed anxiety as regards the circumstances and stated, “a cursory look at the facts of this application in regard to the jurisdiction of this court to entertain it may appear simple and clear but a deeper examination of the same presents problematic legal questions which this Court has been called upon to determine.

The arguments advanced were that the third parties properly obtained ownership of their respective parcels and that in any event; issues or disputes to do with title to land can only be entertained and determined by the Environment and Land Court.

The beneficiaries on the other hand contended that their brother in transferring the property forming part of the estate of the deceased, their brother intermeddled with the estate and breached Section 45 of the Law of Succession Act by purporting to deal with the property of a deceased person without authority.

The court as a Succession Court in affirming its competence to interrogate and entertain the matter took the position that it was making a determination on whether or not the disputed parcel comprised “free property” a matter within the exclusive jurisdiction of the Succession Court.

The court’s finding was anchored on the provisions of Section 45 (1) and 47 of the Law of Succession Act (Cap. 160).  Section 45 (1) provides as follows:-

“Except so far as expressly authorized by this Act, or by any written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person” (emphasis mine)

The court further based its decision on the fact that since the issue in controversy revolved around the action of a beneficiary in exclusion of other beneficiaries transferring the property forming the part of the estate and the fact that the action amounted to intermeddling then the question fell within the jurisdiction.

This paper takes a different position and supports the position of the third parties. This is that once the property was transferred to third parties this matter ceased to be a claim on Succession and became a claim against the estate. It is a claim for proprietary interest. It is therefore the Environment and Land Court that is clothed with jurisdiction to determine the proprietary rights of the third parties against the competing proprietary rights of the beneficiaries that the property formed the estate of the deceased.

The fact that there are third parties who have acquired the property then the matter falls within the purview of the Environment and Land Court. Such third parties are neither beneficiaries nor heirs. This argument finds fortification from the finding of Justice Ibrahim[5] though in a decision of a declaration of trust where he held thus:

This is not the function of a Succession court where the claimant is neither a beneficiary or dependant.  Succession proceedings are also not appropriate for the resolution of serious contested claims against an Estate by third parties.

It follows then that if the succession proceedings are not appropriate claims against an estate by third parties, then the same forum is not appropriate when the estate brings a claim against third parties.

1.5 Treatment of a property on a claim based on trust

Having no mandate to dig deeper into the issues of ownership or title to land on a claim for against the estate/ based on trust, an objector therefore ought to file a case before an Environment and Land Court

In the event that the court finds that the property belonged to the objector and not the estate then the property is excluded from the schedule of the estate properties however if the property is found to form part of the estate, then the court ought to be moved to distribute it or amend the list of assets.

The other treatment for properties with a claim on trust and included in the estate properties is under Rule 42(2) of the Probate and Administration rules which empowers the Succession court before confirmation to remove the property in contest from the schedule of assets and have the same determined separately as to its proprietorship in the Environment and Land Court. If the property is found to be part of the estate of the deceased the same is restored back to the schedule of assets for distribution. Rule 42(2) of the Probate and Administration rules provides as follows:

Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or the property comprising it to abide determination of the question arising in proceedings under Order XXXVI, rule 1 of the Civil Procedure Rules and may thereupon, subject to the proviso to section 71(2) of the Act, proceed to confirm the grant.’

Justice Musyoka in a succession proceeding[6] where the Applicant was claiming ownership over one of the properties, the court noted the dispute in the land over ownership and referred the matter to the Environment and Land Court for the determination of ownership and went on to rule that the administrators could move the court on the strength of the decree stating that the property belonged to the deceased for its restoration to the estate. The court stated:

My understanding of this is that where a claim is brought by anyone, whether a beneficiary or survivor of the deceased or even a third party, that he has an interest of one sort or other in estate property, such property shall be set aside or be removed from the schedule of assets to await determination of the question as to the interest of the claimant. Should it be established that the property or part thereof belongs to the claimant then the asset or part thereof remains removed from the schedule. However, should it be established that the claimant had no interest of any sort in it; the property is restored to the schedule and thereafter distributed under section 71 of the Act… The applicant is claiming exclusive ownership of Plot No. 1 – 310 Mathare North. That is a matter that this court ought not to venture into determining. That is the exclusive province of the Environment and Land Court. The role of the probate court is to distribute those assets that are indisputably the deceased’s.

2.0 CONCLUSION

In view of the foregoing the Succession Court lacks the jurisdiction to adjudicate claims against the estate by third parties. The Succession Court with its limited jurisdiction lacks the mandate to resolve the proprietary interest on land and this falls within the exclusive mandate of the Environment and Land Court.

By:
John Mwariri- Advocate

LL.B (Hons.) Moi, PG Dip (KSL), CPA (K), CPS (K)

Legal Officer- Legal Aid & Education Programme

KITUO CHA SHERIA

 

[1] See the decision in Republic v Chief Registrar of the Judiciary & 2 others Ex parte Riley Services Limited [2015] eKLR.

 

[2] Succession Cause 432 of 2009 Monica Wangari Njiri & 4 others v Eunice Wanjiru Igamba & another [2016] eKLR

[3] In the Matter of the Estate of Peter Igamba Njoroge, Succession Cause No.432 of 2009 (unreported) quoted in Succession Cause 488 of 2010 In re Estate of the Late Jonathan Kinyua Waititu – (Deceased) [2017] eKLR

[4] H.C. Succession Cause No.864 of 1996 [2015]eKLR 

[5] Quoted on the decision of Monica Wangari Njiri & 4 others v Eunice Wanjiru Igamba & another [2016] eKLR

 

[6] In Re Estate of Francis Peter Njuguna Rurigi (Deceased) [2016]Eklr In The Matter of The Estate Of Francis Peter Njuguna Rurigi Alias Francis P. Njuguna Rurigi Alias Francis Njuguna Alias F. P. Njuguna Rurigi Alias Francis Peter Rurigi (Deceased) Succession Cause No. 1566 of 2013

 

My Open Letter to the 12th Parliament

Dear Elected Honorable Members,

I begin by congratulating you on your victory in the August 8, 2017 polls, the second general election after the promulgation of the Constitution of Kenya 2010.

This however, puts you in a unique, fairly challenging, but privileged position as the 12th house of parliament in the history of the Republic of Kenya. It opens a new chapter to the legislative history of the country, a new path to stride along. Clearly, a chance to make amends, build bridges, sores to new heights and develop a new character of a house that has traditionally left Kenyans with a lot to reflect on. The centrality of parliament in modern day governance and legal systems cannot be over- emphasized. The constitution of Kenya 2010 puts this point into perspective as the chapter on the legislature is a sequel to representation of the people. The law further qualifies this by stating that parliament shall reflect the composition of the people of Kenya- a provision that is meant indicate the unique interests and challenges that the different categories of people in Kenya face. In other words, the honorable members of parliament who come from marginalized community, youths, elderly and persons with disabilities have a bigger responsibility of ensuring that the interests of their constituencies are represented. I must emphasis that the houses that came before you, left a lot to be desired with regards to the concept of representation as the facts may speak for themselves.

Article 96 of the Constitution of Kenya gives parliament the authority to legislate and I must insist that this is a very important function that the other arms of government dearly depend on you to perform properly. Neither the Executive nor the judges will deliver without proper laws. The responsibility to legislate should however be guided by goodwill, logic, sobriety, wisdom and the spirit of the Constitution. I have to believe that you have learnt from the past. Kindly remember that ideas such as slavery, apartheid, detention without trials and one party political system have come to be as legislations resulting into consequences that shock the conscience of humanity. Parliamentary work is definitely intertwined with politics and party loyalty however, I feel the need to advice that politics should be used to legislate progressively. If all that is lost on you, just remember the Security Amendment Bill-an embarrassing a tempt to back the hands of time

The other key function of parliament is oversight. The Black’s law dictionary (6th edition) defines oversight as “overseeing” or supervising”. This means parliament therefore, has the duty to watch and control government, to throw the act of publicity on its acts, to expose and compel justification for all they do. I therefore recommend that as you await to start work, you need to reflect upon and be conscience of this role as opposed to the intricacies and the excitements of the tyranny of number. I must also remind you of the important twin oversight role played by the Senate with regards to the County Government. Chapter 11 of the Constitution of Kenya is a five-year-old infant that we really need to care for, otherwise, we stand a chance of losing the gain and the vision of devolution. The Public Accounts Committee (PAC) ought to be more thorough, ruthless, vicious, and keen and prompt in checking and auditing County Government accounts

After all is said and done, I feel obliged to remind you of the requirement of chapter six of the Constitution of Kenya 2010. I am talking about the dignity of the office and the position you hold in the society. It behoove you  (Members ) to give the respect you desire, to act, speak, dress and execute your duties in a manner  that  does not only inspire confidence but brings pride to  the people who elected you to office. It may be a tall order to eradicate hooliganism in our football fields, if it is a norm in our parliament.

Parliament may also be a good avenue to unite the people of Kenya, make sure that there is equal distribution of resources, equality, equity and social justice. The 12th parliament may be the house that champions reduction of the cost of living, proper security and war against terror, good education and health services and eradication of persistent strikes by workers. Parliament however cannot afford to ignore the debate on cessation, as much as it may be a social media zeitgeist, it is a clear pointer to a frustrated citizenry. As for the pay cuts, in the event that you feel aggrieved, kindly use diplomacy and plead your case to the SRC, political side- shows and threats are the whole mark of a house that may soon crumble.

Wish you all the best!

Ouma Kizito Ajuong

Kenyan Citizen, Voter, Advocate and a person living with disability.

Kituo Cha Sheria condemns massive Human Rights Violations and Police Brutality on Civilians

KITUO LOGO with Legal Advice Centre

Kituo Cha Sheria condemns massive Human Rights Violations and Police Brutality on Civilians following the Just Ended 2017 Presidential Elections

Kituo Cha Sheria is deeply concerned by the lethal force and brutality meted out on unarmed protesters by the police as well as the armed forces following the just ended 2017 presidential election in Kenya.

The deployed police applied unwarranted force and brutality to quell unrest in various parts of the country following the declaration by the Independent Electoral and Boundaries Commission (IEBC), that President Uhuru Kenyatta had won the recently concluded General Election.

Kituo Cha Sheria asserts that the use of violent and unjust measures by the security agents and police by way of: live bullets on protesters among others in; Mathare North Area 1, 2, 4 and 10, Nyamasaria, Kibos, Kondele, Nyalenda, Obunga and Kibera is unlawful and unacceptable.

Kituo is a custodian of Access to Justice for the poor and marginalized and condemns this high handedness in the strongest terms possible.

We have reports from our community based paralegals all over the country documenting up to 24 bodies with gunshot wounds including: a young man, who was shot dead at Dayo in Kisumu West. The deceased’s mother, Milka Amigo, and area MCA, Paul Okiri, have since confirmed the death.

Despite the confirmation above, Kisumu County Police Commander Titus Yoma alongside Nyanza Regional Coordinator Wilson Njenga denied these as factual.

Innocent children have not been spared either by this brutality, considering: the sad case of a ten year old who succumbed to reckless police shootings in Mathare. It is disheartening to learn that police even break into homes (as is documented by a paralegal from the Nyando Community Justice Center) and lob teargas in residential structures so as to draw Kenyans out and torture them indiscriminately including children as young as the 6 month old Samantha Pendo, who suffered critical injuries and later passed on as a result of police torture in Kisumu.

Simmering tension and fear of attacks from the dreaded militia still remains rife especially in Lucky Summer, Obama, Kayole, Kisumu and Mathare. We call upon the security agencies and political actors to rise to the occasion and contain this situation.

We remind you of the Constitution of Kenya, Article 244(a) which states that; The National Police Service shall strive for the highest standards of professionalism and discipline among its members and thus call upon the Independent Police Oversight Authority (IPOA) to move with speed and investigate and hold responsible, individual officers who are committing these heinous operations.

Kituo Cha Sheria appeals to political leaders to reign in on their supporters with a message of tolerance and peace. Kituo Cha Sheria also reminds citizens that they have the right to express themselves through picketing and demonstrations as prescribed under Article 37 of the Constitution of Kenya, but they must be peaceful and unarmed.

We remind all Kenyans of the national values of social justice, rule of law, democracy, human rights and non-discrimination to help us forge a united and a prosperous Kenya.

Gertrude Angote-Executive Director

Kituo Cha Sheria

What Can Seasonal Workers Do When Their Employment Ends?

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Tourism and agriculture are two of the largest contributors to the gross domestic product (GDP) of Kenya. Yet, both industries are cyclical. Seasonal workers are brought in during tourist season or when it’s time to harvest the crops, and then, they are let go when demand slows down. What options are available to seasonal workers when their work is done?

The Employment Act of 2007

In 2007, Kenya’s Parliament enacted five labour laws: The Occupational Safety and Health Act, Work Injury Benefits Act, Labour Relations Act, Labour Institutions Act, and the Employment Act. Their aim was to improve the environment for workers, trade unions, and employees. They repealed and replaced the previous six core labour laws and brought them into conformity with the current demands and challenges of international labour standards and national development.

The Employment Act put a number of laws on the books that protected workers of all types. Unfortunately, Kenya does not currently have any provision in the law for unemployment benefits or insurance. This applies to workers of all types, including full-time, part-time, temporary, seasonal, and so on.

The Potential for Unemployment Benefits Is There

In 2012, with the call for expansion of the National Social Security Fund (NSSF), talk of introducing unemployment benefits came to the forefront. The NSSF is the public pension services provider that more than one million Kenyan workers pay into. Once contributors to the fund retire and reach a certain age threshold, they can start collecting on the pension.

When NSSF was discussing raising fees on its contributors, it announced that it intended to introduce unemployment benefits to members who lost their jobs. The reasoning behind potentially introducing the payments was to help members cover expenses – including utility bills, food, and rent – in the event that they unexpectedly lost their job. Numbers announced at the time included paying Sh10,000 per month for half a year.

At the time, officials believed the unemployment benefits bill would be introduced by 2015. However, as of today, we are still waiting for unemployment benefits. Seasonal workers were not mentioned at all at the time of the chatter about unemployment, so it remains unclear whether this would be a viable option for them.

Trade Unions May Be the Best Bet Moving Forward

The question of whether seasonal workers should receive unemployment is a tough one since most of the employees go into the work knowing that it is temporary, and they are usually paid handsomely. If you are aseasonal worker, you should not expect unemployment insurance to help you during the offseason. Instead, you might consider being a serial seasonal worker with a different job for each season.

In the meantime, with the Labour Relations Act, it is possible for trade unions to offer their members unemployment benefits. Currently, this is not a common practice, and again, it is unlikely it would benefitseasonal workers. Yet, unions in other countries have used dues and other collections to help members through a rough patch caused by the loss of work.

There Are Some Benefits Available

While there may be no unemployment benefits available for the near future, you do have specific rights that you are guaranteed thanks to Kenya’s labour laws. Specifically, the Employment Act of 2007 sets down the rules for Terminal Benefits. These are the final entitlements a worker is to receive upon termination of their employment contract (which are required for any jobs longer than three months).

Once your employment contract is terminated, you are entitled to the following:

  • ·         Severance pay (if applicable)
  • ·         Remuneration for work done prior to termination
  • ·         Certificate of Service
  • ·         Any notice pay due
  • ·         Leave pay due to the worker that had not yet been used

According to the Employment Act, severance pay is only due to an employee if their job is rendered redundant. This is when the employer terminates your employment involuntarily because your job is considered superfluous. You cannot get severance pay if you quit or if you engaged in misconduct. If you do qualify for severance pay, you get the equivalent of fifteen days of basic wages for every year of employment you have completed.

By:

Writing Jackie.

About Unemployment.org

http://aboutunemployment.org/unemployment-rules-seasonal-workers/

How to Deal with a False Accusation

Facing a false accusation is one of the scariest things anybody can experience in their lives. And what’s worst is that false accusations can come by complete surprise, catching the accused completely off guard. But there are some things everybody can do to protect themselves from false accusations and have them dismissed. Here are some tips in case you end up in that situation.

Understand the Magnitude of False Accusation

When you are wrongly abused, you may have the reflex of brushing these accusations as some sort of sick joke. But false accusations are very serious and should never be taken lightly. Many people end up being in denial of the accusations and think that they are not that important. But what you do in the early changes is of capital importance and might have serious implications in the future.

Make Sure You are Ready to Handle Defense Costs

Unfortunately, whether you are rightly accused or not, you will have to handle your defense. This will usually mean hiring someone with a masters in criminal justice. If you are strapped for cash, you can always opt for someone with an online masters in criminal justice to provide assistance or a public defender if you are eligible for one. In any case, you should only decide to represent yourself if you have no other choice and you feel like you have the competence to do so.

Make Sure You Use Documentation to Your Advantage

Documentation can be of great help in defending your case. Documenting each and every part of your case can be very helpful for you and your defense attorney(s). Make sure every event associated with the false accusation is clearly documented and in as much detail as possible. If you’re not sure a particular piece of information could help your case, make sure you inform you defense attorney.

Make Sure You Educate Yourself as Much as You Can

Even if you’re being represented by the best defense attorney, it’s always better to educate yourself about the whole process as much as possible. You simply won’t be able to defend yourself as efficiently if you don’t understand every aspect of a court case in details. If your team asks you to do something, don’t be afraid to ask questions. You can gather your information from many sources, law libraries, not for profit organizations, and websites that provide legal advice. Informed defendants have more chances of winning their cases, so make sure that you do everything you can to find out as much as you can about your case and its implications.

Conclusion

False accusations are never easy, but you can increase your chances of fighting them if you move correctly. Make sure that you learn as much as you can about your case and educate yourself about the whole process. Use documentation to your advantage and record anything of value pertaining to your case. Be prepared to handle the cost of your defense, and last, but not least, never downplay the seriousness of false accusations.