About Kituo Cha Sheria

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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.

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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.

The Right to Vote Dissected: Discussing the Nexus between Casting the ballot and the Four Corners of Human Rights in Kenya Today

RIGHT TO VOTE BLOG

“Voting is the most precious right of every citizen, and we have a moral obligation to ensure the integrity of the voting process.”- Hilary Clinton   

Public participation in political process is viewed by many scholars and democrats as a virtue in its own right. While many aspects of this are still amorphous, it is safe to say that the whole process is usually initiated by casting the ballot which is fundamental dimension to democracy. The exercise of citizens coming together to choose a leader through a legitimate process has over the years crystallized into a divine right- right to vote- even in States where the idea is not constitutionalized.

In Kenya, the promulgation of the Constitution of Kenya 2010 reinvigorated the resolve of the people of Kenya to establish a human rights–based society, starting with robust regime of political rights. Article 38 of the Constitution of Kenya 2010 inter alia gives people of Kenya the right to vote in an election or a referendum. Article 1 of the supreme law also gives sovereign power to the people of Kenya, often exercised through casting the ballot. Article 2(5) and 2(6) of the Constitution of Kenya 2010 also opens the door to international law which gives the right to vote to citizens of a sovereign State. This paper is dedicated to the right to vote and how it is connected to civic, social cultural and economic rights in Kenya today.

What does the right to vote mean?

It is perhaps true that the action of picking a piece of paper and  choosing a name from the list may not be a complex affair, however, it is equally true  that the consequential analysis of this exercise makes it an important process that  has taken many scholars time to  reflect and come up with the meaning of this  right. There  are two schools of  thought with regards to this, the first one, looks at the right to vote as an individual right which brings in the ideals of equality  to solve electoral disputes or “election wars” .

Proponents of this focus on the technical aspect of voting, they insist that it is more about individual’s ability to control election disputes and less on equality and ripple effect of the choice. In other words, for them voting is limited to the issues on the table. The second group however, thinks of the right to vote in a broader sense, as a foundational right that opens the door to the other ideals of democracy. Borrowing from the words of the late Prof. Okoth-Ogendo [on Constitutionalism] it is all about values and ideals.

The Kenyan political scene seems blind to the second school of thought, however with  the less than 70 days remaining to the general elections and the campaign period officially commencing, it is perhaps time to look at these ideas-some of which may not find a place on the “election wars” table.

Firstly, it is quite evident that the idea of civic and political rights has gradually grown into the people’s hearts in Kenya.

Today, unlike in the past, there is freedom of speech and expression, people are free to critique and ask more of their government. There is freedom to form and participate in political party and the idea of affirmative action to deal with the marginalized and special interest groups. This growth however, does not mean there are no challenges.

The loudly – silent question of a free and fair electoral process still lingers in the shadows. As much as the Constitution of Kenya 2010 provides for free, fair, accurate and verifiable elections, even the courts have not been able to quantify these standards leaving the country in abeyance with regards to sanctity of the vote. In addition to this, the value of our political parties seems to  have dropped a great deal, evidenced by the large number of independent candidates registered for the upcoming general elections, it is apparent that institutionalization of political parties is still a white elephant. Everybody agrees that provision for independent candidature opens up the democratic space, however when there are this many, it can only mean that there is very little faith in the systems within our political parties. The only way to know for sure will be to wait for people to vote and see how many independent candidates get elected. But generally these are signs that Kenyans need to think about their political organization.

Secondly, there are social cultural and economic rights. The judicial attitude has always leaned towards progressive realization of these rights and for sure the first five years of governance through the Constitution of Kenya 2010 has provided progressive realization in some areas. For instance, healthcare, education, growth of infrastructure, telecommunications and IT; however, it is quite shameful that Kenyans have to die because of drought in the 21st century. They have to pay taxes, work very hard and still fundraise for their fellow citizens who cannot get food in places like Baringo as the County and National government remain complacent.

It is funny that as Kenya builds standard gauge railways and roads, the prices of basic goods  have risen to an all-time high, the levels of corruption are simply unprecedented and our public debt need to be addressed. It is highly probable that most of these issues will be the subject of the coming elections but whether the electorate will use their votes to enter into contracts that deal with these issues is all about waiting to see.

In conclusion, the 2017 general election provides the people of Kenya with an opportunity to make choices, decide leadership that will bring their aspiration to fruition, build their Country and fortify the bill of rights all at the same time.

It is yet another chance to exercise the right to vote!

Wish all Kenyans a peaceful general election 2017.

By:-

Ouma Kizito Ajuong’

LLB (Hons) KUSOL, DIP KSL, Advocate of the High Court of Kenya.

A Win for the Freedom of Expression in Kenya: Criminal Libel is Unconstitutional

opinion-speech

The Kenyan High court has, in a recent decision, struck a blow for freedom of expression.

The case, Jacqueline Okuta & another v Attorney General & 2 others, sought to challenge the constitutionality of the offence of criminal defamation created under the provisions of Section 194 of the Penal Code. The petitioners in this case instituted a suit following their arraignment in court on charges of having allegedly published defamatory statements against the complainants on Facebook. The alleged publication stated that the complainants were wanted for illegal possession and handling of property.

The case turned on the question of whether criminal libel was a reasonable or justifiable restriction on freedom of expression. The petitioners contended that criminal libel was a “disproportionate instrument for protecting the reputations, rights and freedoms of others”, and inconsistent with Kenya’s human rights obligations under international law. Article 2 of the Constitution expressly incorporates treaties ratified by Kenya as well as the general rules of international law into Kenyan domestic law. Similar arguments were put forward by Article 19, an NGO which appeared as an interested party in the suit.

Protected under Article 19 of the ICCPR, the freedom of expression can only be subject to limitation(s) where that limitation meets the 3 part test laid down in Article 19(3) of the ICCPR, as interpreted in General Comment 34. This test requires that the limitation must be prescribed by law, pursue a legitimate purpose, and be necessary in a democratic society.

In the present case, the court concluded that the case revolved around whether the limitation imposed by the law had passed the tests of necessity and proportionality.

Necessary in a democratic society

Applying the test in Handyside v United Kingdom, which requires a probing into the existence of a pressing social need,the court questioned whether it was necessary to criminalize defamatory statements so as to prevent individuals from defaming each other. It noted the important role played by freedom of expression in disseminating information and public scrutiny, which often leads to unearthing of corrupt or fraudulent activities. Criminalising defamation would have a chilling effect on this valuable speech.

Referring to Article 24 of the Kenyan Constitution, which stipulates the criteria for  limitation of rights and fundamental freedoms, the Court stated that this provision’s purpose was to protect the public interest in general, as opposed to individual interests, yet a scrutiny of criminal defamation sought to protect individual interests. The interference with free expression which criminalising defamation would represent therefore failed to meet any ‘pressing social need’. This meant that Section 194 ran afoul of constitutional requirements. While such an interpretation may have, on the face of things, been plausible, one is left to ponder over the question whether this means that measures restricting rights can never be justified by reference to the protection of an individual interest. If this were the case, there would be a risk that minority rights would be jeopardized.

The question of proportionality

The second test used to scrutinise the constitutionality of criminal defamation  entailed  examining whether there existed an alternative remedy that satisfactorily and appropriately dealt with the mischief of defamation. Answering in the affirmative, the court stated that the right of action under the tort of defamation offered recourse to a complainant and was a less restrictive alternative.

The court further undertook an assessment of the consequences that would flow from criminal defamation and found that offenders would carry the opprobrium of criminalisation evenwhere the alleged defamation was not serious. The offence also had a chilling effect on the freedom of speech and information.

What also sticks out like a sore thumb in the court’s decision is the erroneous reference to Article 24 as a provision that allows for permissible derogations. This is because Article 24 only provides for limitation of rights and specifically prohibits limitation of a right that may ‘derogate from its core or essential content.’ The court failed to distinguish between limitation of rights under Article 24,and derogation from rights, which is provided for under Article 58(6) of the Kenyan Constitution. An important difference exists between limitation and derogation.

The Court also expressed displeasure that certain provisions within the Kenyan law hadn’t yet been amended so as to conform with the letter and spirit of the Constitution, despite it having been 7 years since the inception of the new constitutional order.

This progressive decision brings Kenya in line with regional human rights courts such as the African Court on Human and Peoples Rights, which in Konate vs Burkina Faso, discouraged the use of criminal defamation laws, stating that they  should only be reserved for instances of hate speech and incitement.

 Attalo Alvin.
LLB, Moi University School of Law.

The Kenyan Woman’s Place in Succession

law opinion

Introduction

The law of succession also referred to as the law of inheritance basically deals with the transmission of property rights from the dead to the living. This area of law deals with transmission from the dead to the living and consequently inheritance is common in all human societies and is therefore a concept of universal application.

The 5th edition of the Black’s Law Dictionary defines succession or inheritance as ‘’the devolution of title to property under the law of descent and distribution.’’ This definition therefore excludes those who take by deed, grant or any other form of purchase contract.

Arguably, this is driven by the desire to acquire property and as such, it is one of the ways of acquiring property due to the fact that when someone dies, the right to own and enjoy property rights die with them as well thus the rights over the property have to be acquired by someone else.

With consideration to the foregoing, the aspect of control has to also be factored in and considered. In most cases, people exercise this control in ways that are legal in the eyes of the law. However, philosophical decisions behind succession are the right of the owner to control that property even after death. Such people can do so through a will.

The main purpose of succession laws therefore is to provide the mechanisms through which property will be transmitted from the deceased to those who survive him/her and this automatically involves the following:

  1. Identifying the legal claimants who claim the property.
  2. Identifying the procedures of which such rightful claimants or dependents succeed to the property of the deceased.
  3. Identifying the mechanisms for dispute resolution as provided so as to resolve any conflicts between persons who claim to be rightful owners.

However, patriarchal ideologies give shape to family life and defines it in terms of a bread winning husband and a domesticated wife or rather a housewife which in many cases is domesticated by the males despite the fact that some of these women may be making substantial contributions to the household income. Consequently men are attributed with greater economic power when it comes to determining how the family income and resources should be allocated.

Various communities and societies have their own set of rules despite the fact that inheritance is a universal concept. In Kenya however, we have Cap 160 which is the law of succession act and which is of general application. There are other laws which apply such as Islamic laws and customary laws which are fortunately or unfortunately exempted by the Act but still apply informally in practice.

During the colonial period, various laws used to apply and various statutes applied to the various communities at that time such as to Europeans, Africans, Hindus and Muslims as well. The advent of independence saw an attempt at moving towards uniformity i.e. an attempt to consolidate and harmonize the various laws of succession into one statute catering for various peoples of Kenya. This culminated in the enactment of the law of succession act in 1972. This was done with the aim of bringing to an end differential treatment of people carried out during the colonial period. After independence, emphasis was on equality and the enactment of the law of succession act was an attempt at this equality.

The succession of the estate of a deceased may however take two forms. It may be by a will which is referred to as testate succession or can also be without a will which will thus result to intestate succession. Both forms are recognized by the law regulating matters of succession in Kenya. Intestate succession or rather intestacy occurs when a person dies without having made a will or the persons attempt to die testate fail upon the invalidation of his will by a court of law or the person revokes his will and subsequently dies without having made another will.[1]

Intestacy may therefore be total or partial. It is said to be total where the intestate has left no valid will. It is partial where a person fails to include all his property in his otherwise valid will or part of the will is revoked or a person acquires property subsequent to the making of the will that is not ambulatory. The property not covered by the will is governed by the intestacy provisions or is subject to intestate succession.

The rules of intestacy however apply to property that is capable of being disposed off by a will and do not apply to joint property which passes by survivorship or to nominations, life policies written in trust, or the subject of a dornatio mortis causa and therefore Cap 160 makes provisions for both monogamous and polygamous situations. The nature of devolution of property therefore depends on whether the deceased was polygamous or monogamous.

The succession of the estate of a deceased could also be testate in that he dies leaving a valid will to direct how his estate should be devolved after his death. Despite the fact that this could be the case, women are still marginalized and affected by cultural practices and customary laws in great proportions.

This could occur where the deceased dies testate but in his will and due to cultural demands, excludes the girl child from his otherwise valid will. This has the effect that such a girl will not have a place in succession and it’s because the society’s background allows so. This shows that even though the deceased might die testate, women still face the risk of being disinherited and might as well have no place when it comes to succession.

Customary laws in most communities are never fair and do not safeguard the rights of women whether the spouse, spouses or even the girl child. This therefore means that when referring to women in this context, the girl child is also included because in one way or another, she will end up being affected by the same issues already affecting and similar to those affecting their mothers.

What does the Law of Succession Act say?

The Law of Succession Act provides that ’’except as otherwise 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 or testamentary succession to the estate of deceased persons dying after the commencement of this act and to the administration of estates of those persons.’’[2]

The Law of Succession Act makes various provisions to regulate inheritance matters for the various types of marriages. The Act makes provisions for both Monogamous and polygamous types of marriages. The nature of devolution of property in intestate succession depends on whether the deceased was polygamous or monogamous. However, the rules of intestacy do not apply to the provisions of Section 32 of the Act.[3]

Most Kenyans undergo Christian marriages which of course are done under the African Christian Marriage and Divorce Act while many others choose to have Civil marriages conducted under the Marriage Act. The marriages conducted under the two Acts are monogamous in nature and therefore subsequent women and children who will have been begotten outside such a marriage would be concubines and therefore illegitimate respectively and according to the provisions of the Act.[4]

Legislative intervention has however addressed the problem. An amendment to the Law of Succession Act now regards the subsequent women as a wife and the subsequent children as legitimate.[5] This is to ensure that all are catered for and for the sole purpose of succeeding the man in the event that he dies. The amendment can be attributed to the perception of the Traditional African society on the family unit.

Monogamous Marriages

The law of succession act provides that subject to the provisions of Section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to the personal and household effects of the deceased absolutely and a life interest in the whole residue of the net intestate estate provided that, if the surviving spouse is a widow, that interest shall determine upon he re-marriage to any person.[6]

On the other hand, the Matrimonial Property Act provides that, a married woman has the same rights as a married man. These rights include to acquire, hold, administer, control, use and dispose of property whether movable or immovable, to enter into a contract and sue in her name.[7] This is a provision whose main purpose is to ensure that men and women are equal or rather have an equal status in a marriage union.

The Law of Succession Act provides that a spouse who makes a contribution towards the improvement of a non matrimonial property acquires a beneficial interest in the property equal to the contribution made by that spouse.[8] In this case, contribution means monetary and non-monetary contribution which includes domestic work and management of the matrimonial home, child care, companionship, management of family business or property and farm work as well as provided for by the act.[9]

The above assertions were reiterated in the case of Karanja v Karanja[10] where the court recognized the fact that a wife could help her husband acquire property through direct financial contribution. The contribution of a wife as a housewife or rather a housekeeper is no less important and her duties of taking care of her husband and children cannot be overlooked.

The dichotomy of continuum has also posed such a great challenge to succession matters. This has been between the western approaches and the traditional African approaches to issues concerning succession. The westernized jurisprudence puts matrimonial property within the limited confines of the family which is something that has been defined and interpreted by courts before.[11]

In the case of Rono v Rono[12] the sons claimed a greater share of their deceased father’s property that their sisters and their fathers widow. They advanced the argument that under Keiyo traditions, girls have no right to inheritance of their father’s estate and that even customary law supported their claim. However, the court found that where discrimination is at stake, the constitution and human rights standards must prevail.

In 2008, the above challenge was addressed again. In Re Estate of Lerionka Ntutu (deceased), it was argued that Maasai customary law did not recognize a daughter’s right to inherit property from her deceased father’s estate. The court and specifically Lady Justice Rawal made reference to and with reliance on the Rono v Rono decision overruled the application of Maasai customary law and therefore ruled that the daughters of a Maasai who had died without leaving a will were entitled to inherit his property not forgetting to emphasize the need to respect the requirements of CEDAW and International law together with women’s inheritance rights.[13]

In the above case, the question was whether the court was to apply the Law of Succession Act or apply the customary law of the Maasai community. The issue was clarified when Justice Rawal among other things held that any tenet of customary law which would abrogate the right of daughters to inheritance would be repugnant to justice and morality and could not be applied. This was a win for women because it meant that the daughter’s right to inheritance was recognized by the law.

 Polygamous Marriages

The Law of Succession Act provides that where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.[14]

The Marriage Act provides that Islamic and customary marriages are presumed to be polygamous or that they are potentially polygamous.[15] This has the effect that such marriages are considered to be polygamous before the law. The Act further provides that a person in a polygamous marriage shall not contract another, monogamous marriage.[16] Consequently, when one of the above marriages has been contracted, one lacks the capacity to contract a monogamous marriage.

Previously, women who were caught up in a polygamous labyrinth did not get anything in terms of inheritance of their deceased husbands which was very unfortunate. In Re Ruenji’s Estate, the marriage was under the African Christian Marriage and Divorce Act and Sachdeva J. held that women married under customary law by a man who had already or rather previously married under statutory law were not wives and their children were not children for the purposes of succession of the estate and were therefore not entitled to share in the estate of the deceased.[17]

In Re Ogola’s Estate, the same kind of holding was made. Simpson J. held that, a man married under statute is statute barred from contracting other marriages during the pendency of the statutory marriage and that any marriage so contracted are null and void, and the women so married are not entitled together with their children to inherit on the intestacy of the deceased man. This decision again bluntly women who were second wives to men who were already married under statute.[18]

In the matter of the Estate of Samuel Hopewell Gacharamu, the deceased had married his first wife under Gikuyu customary law. When he married a second wife, he married under the Kamba customary law although he again proceeded to marry the second wife under the Marriage Act. The issue that arose was as to who was the widow of the deceased and so entitled to inherit and it was also contentious as to what share should go to the two wives and children if both of them were declared widows.

The court held that the two were married under Gikuyu and Kamba customary law respectively and that the fact that the second wife was married under the Marriage Act merely facilitated the registration of that marriage but didn’t change the character of the marriage or even affect its validity. The two women together with their children were therefore entitled to a share of the deceased’s estate.

The decision in the Estate of Samuel Hopewell Gacharamu was reiterated in the decision in the Estate of Duncan Kiiru Karuku when the court stated that for the purpose of intestate succession, despite the fact that the first marriage was conducted under statute, the other wives and their children were the wives and children of the deceased and were therefore entitled to inherit.[19] Reference should however be made to Section 29 of Cap 160. The Act further provides for the mode of distribution.[20] In the above case, if not for the intervention of the court, the other wives would have been disinherited unfairly. This seems to be a direct interpretation of Section 3 (5) of the Law of Succession Act.[21]

In the Estate of Benson Ndirangu Mathenge, the deceased was survived by his two widows and their children as well. The first widow had four children while the second widow had six children. Ondeyo J. stated that the first house comprised of five units while the second house was comprised of seven units. The court stated that the two houses combined comprised of twelve units if looked at in terms of units. The 40 acre piece of land available for distribution was divided into twelve units out of which five were given to the first widow and her four children and the remaining seven to the second widow and her six children.[22]

What of married daughters?

Married daughters are still entitled to inherit their late father’s estate. The Constitution of Kenya 2010 provides that subject to Article 65, every person has the right, either individually or I association with others, to acquire and own property.[23] The constitution also provides that, the state shall not discriminate directly or indirectly against any person on any ground including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.[24]

In the case of Samson Kiogora Rukunga v Zipporah Gaiti Rukunga,[25] the dispute was as to whether a married daughter has a right to inheritance. This was in Meru High Court where the objector, Consolata Ntibuka went to court to challenge her brother’s decision to evict her from their deceased fathers land on the ground that she was married. The matter was brought before Lady Justice Mary Kasango. Lady Justice Mary Kasango stated that in her view, the law as it is now, it matters not whether a daughter is married or not when it comes to consideration of whether she is entitled to inherit her parents estate.

The Constitution of Kenya 2010 in Chapter Five on Land and Environment provides that one of the principles of land policy is the elimination of gender discrimination in law, customs and practices related to land and property in land.[26] The Constitution further provides that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.[27] The above provisions of the Constitution of Kenya 2010 are tailored to ensure equality between men and women irrespective of the gender dominance.

The position that even married daughters are entitled to inherit their deceased father’s estates has again been reaffirmed in Re Estate of Pricilla Wairimu Kamau[28] where the court and specifically Lady Justice Martha Koome reaffirmed the provisions of the Law of Succession Act that daughters have equal inheritance rights just like sons do and she therefore held that the law doesn’t at all distinguish the children of the deceased on the basis of their gender or marital status.  The above ruling is also a win for the women a step towards ensuring equality between men and women in succession.

What if I am a Muslim woman?  

The Law of Succession Act further provides that “subject to subsection (4), the provisions of this Act shall not apply to testamentary or intestate succession to the estate of any person who at the time of his death is a Muslim to the intent that in lieu of such provisions, the devolution of the estate of any such person shall be governed by Muslim law.”[29] This therefore means that matters to do with devolution of property of the deceased will conform to the provisions of the Holy Quran which states how the estate of the deceased shall be distributed.

The law of inheritance is a vital aspect of the Islam religion. Unfortunately, it can be argued that there is no equality for members subscribing to that religion when it comes to succession. Take for example the provision of the holy Quran that says, ‘’Allah ordains concerning your children that, the male shall have a share equivalent to that of two females. If the children are females numbering two or more, their proportion is two thirds of the inheritance.’’ [30] This is a clear disproportionate share amongst sons and daughters. But what can the law do about it? Well, nothing. Muslims are not subject to the provisions of the Law of Succession Act, period.

Conclusion

The law is everywhere and literally affects everything. It permeates every aspect of life to the point where whenever you peel off the layer of reality, the web of law is just beneath it. One would then ask themselves, where is this law that is said to have far reaching effects when women are being frustrated by men and a society which bows down to customary laws that violate women’s rights? Does it hate women? Is the law a chauvinist? Reflecting from all the assertions made above, it is clear that the issues affecting women are closely related to each other if not intertwined with legal stagnation, attitudes towards women, ignorance of the law and gender insensitivity.

The government has a role to play through legislation in combating the ill and rot in the society levelled against women with regard to succession. Legislation should therefore ensure equality between men and women and create a support mechanism for women’s claims as this is the best approach and solution to the paralysis of desperate women trying to figure out which way to go. It is the best way to understand the contours and cracks of their desperation and suffering. Women should be empowered to demand their rights, they should not wait for things to happen to them, they should be able to make things happen.

BY:
Kayere Ephraim

LAED-Kituo Cha Sheria

[1] See Section 34 of the Law of Succession Act

[2] Section 2 (1) of the Law of Succession Act

[3] Section 32 of the Law of Succession Act provides that ‘’the provisions of this part shall not apply to Agricultural land and crops thereon; or livestock situated in such areas as the Minister may, by notice in the gazette, specify.’’

[4] See Section 2 (2) of the Law of Succession Act

[5] Section 3 (5) of the Law of Succession Act

[6] Section 35 (1) of the Law of Succession Act

[7] Section 4 of the Matrimonial Property Act

[8] See Section 9 of the Matrimonial Property Act

[9] Section 2 of the Matrimonial Property Act

[10] Karanja v Karanja [1976] KLR 356

[11] See the case of Hyde v Hyde [1861-73] ALLER 175

[12] Rono v Rono & another(2008) KLR G & F 803

[13] Re Estate of Lerionka Ntutu, [2008] eKLR

[14] See Section 40 (1) of the Law of Succession Act

[15] Section 6 (3) of the Marriage Act

[16] Section 9 (b) of the Marriage Act

[17] Re Ruenji’s Estate (1977) KLR 21

[18] Re Ogola’s Estate (1978) KLR 18

[19] Succession Cause No. 74 of 1987, Estate of Duncan Kiiru Karuku

[20] Section 40-42 of the Law of Succession Act

[21] Section 52 of the Law of Succession Act provides that, notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act, and in particular Section 29 and 40 thereof, and her children accordingly children within the meaning of this Act.

[22] High Court Succession Cause No. 231 of 1998

[23] See Article 40 (1) of the Constitution of Kenya 2010

[24] Article 27 (4) of the Constitution of Kenya 2010

[25] See the case of Samson Kiogora Rukunga v Zipporah Gaiti Rukunga 2001 [eKLR] available at http://www.kenyalaw.org

[26] See Article 60 (f) of the Constitution of Kenya 2010

[27] Article 27 (3) of the Constitution of Kenya 2010

[28] See the case of Re Estate Pricilla Wairimu Kamau [2005] eKLR

[29] Section 2 (3) of the Law of Succession Act

[30] See Sura 4 Verse 11 of the Holy Quran

When he said “I do” he never said what he did…

law opinion

Every one applauded as they were pronounced one.  Her cheeks turned red after the kiss, it was the happiest day of her life. He had stolen her heart, and she had stolen his last name- or at least that is what the wedding invitations said…

The sermon that day was on a successful marriage in the eyes of the lord. “But I want you to realize that the head of every man is Christ, and the head of the woman is man, and the head of Christ is God.’

Power  imbalances among couples does not begin on the wedding day but way before. Transpiring as a result of the power culturally bestowed onto men (and their families), reinforced by religion as seen above, and approved by customs such as the payment of bride wealth. (Dodoo, 1998). These alter the gender dynamics in marital relationships; limiting women’s independence, perpetrating unequal gender power relations and altering sex negotiation capacities.

Dowry payment or bride price-whichever your poison, is a wide spread practice in the African society. It includes the transfer of wealth from the husband’s family to that of the wife .in the past, it was done by delivering livestock as a sign of appreciation for some, or as a symbol of wealth to others, showing that the Man could take care of a family.  Dowry evolved to bride –price and the kind gesture was commercialized as the money system was introduced. Daughters then became investments and wife’s became property.

The bought cannot be in the same position as the buyer. The woman therefore has no much voice especially when it comes to her sexual autonomy. Whenever the husband gets home drunk or sober as long as he is the mood then the wife’s opinion is not held in high regards.  Some will rape as a form of discipline, some to assert their position as breadwinners. All in all bride price payment has a huge role to play. According to Dr. Onyango through bride wealth a man is seen as having paid for the reproductive labor, hence her sexuality itself is bought.

A young lady forced into a marriage because the “rich” husband could pay the price is also vulnerable and will mostly fall victim to marital rape. This is very common in pastoralist communities who instead of taking their children to school will marry them off young. Some to get money to pay off bride-price for their brothers- at the expense of their sisters who are perceived as sex objects to give birth and take care of babies. A woman forced into marriage will not have much control over her sexuality.

Widow cleansing after an inheritance is a very common practice in Africa. Cultural anthropologists emphasize the ritualistic function of widow inheritance. Among the Luo of Kenya for example, it was tradition that when a woman’s husband died, she had to engage in sexual intercourse without a condom with a “cleanser,” often a non-relative of the deceased husband, to remove the impurity she is believed to have acquired from the death of her husband. (Ochalla, 1996).

Husbands in the African context do not see the need for conjugal consent in a marriage. Some will justify with religion, some with cultural beliefs. So Is it really rape when the perpetrator is a spouse?

Rape may be defined as sexual intercourse with a person without their consent. This may be as a result of physical force or threats, or because the person was unconscious or asleep, or because consent as to the nature of the act was obtained through fraud. (Campbell, 1979). It is also rape if the person is mentally incapable of understanding what is being consented to. The defendant must be proved to have known that the person did not consent or have been reckless as to consent.
Campbell further defines marital rape as any unwanted sexual acts by a married partner or a former married partner committed without consent or against that partner’s will. This may be obtained by force, or threat of force, intimidation, or when a person is unable to consent. These sexual acts include intercourse, anal or oral sex, forced sexual behavior with other individuals, and other sexual activities that are considered by the victim as degrading, humiliating, painful, and unwanted.

In 1 Corinthians 7:3-5 it is written that:

The husband should fulfill his marital duty to his wife, and likewise the wife to her husband. The wife does not have authority over her own body but yields it to her husband. In the same way, the husband does not have authority over his own body but yields it to his wife. Do not deprive each other except perhaps by mutual consent and for a time, so that you may devote yourselves to prayer. Then come together again so that Satan will not tempt you because of your lack of self-control.

This may be interpreted to mean that once married, one has no authority over their body.

In the Islamic context It was narrated that Abu Hurayrah (may Allaah be pleased with him) said: “The Messenger of Allaah (peace and blessings of Allaah be upon him) said: ‘When a man calls his wife to his bed and she refuses, and he went to sleep angry with her, the angels will curse her until morning.’” (Narrated by al-Bukhaari, 3065; Muslim, 1436)

This is a hadeeth told, directing a wife to help her husband seek his satisfaction, because a man is less patient than a woman when it comes to doing without intercourse. The most disturbing thing for a man is his sexual impulse, so Islam urges women to help their husbands in this regard. (Adapted and abbreviated from the commentary by al-Haafiz Ibn Hijr – may Allaah have mercy on him – on this hadeeth in Fath al-Baari).

Further According to one law maker during the passing of the Sexual Offences Act he said:

“An activity between a man and his wife in his bedroom cannot within reason be constituted to be rape. Many people believe this is not an African issue. Marriage creates sexual license to each party … that is the license they get by saying ‘I do’.”

The law interpreters have not been left behind as Lord Matthew Hale’s proposition (known as the Hale doctrine) exemplified the same as follows:

“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”

This clearly proves that the mindset is shared by persons from all fields of life to prove that a wife is an inferior being to her husband. The sexual offences act hits the final blow as it states in Section 43(5) that:

‘with regards to claims of sexual abuse such as rape it shall not apply in respect of persons who are lawful married to each other.’

Kenya has one of the most comprehensive Bill of Rights in Africa that has addressed a lot of human rights issues. Article 45 of the Constitution recognizes that parties in a marriage are equal. That means that all things have to be done with the knowledge and agreement of the parties once you get married. Further, Article 29 guarantees all; including spouses, the freedom from inhuman and degrading treatment.

Marital rape is a form of domestic violence often overlooked by the society because of patriarchal ideologies that emphasize male superiority in marriage and stereotypes justifying marital rape. It provides arguments and reasons necessitating criminalization of rape within marriage. Marital rape happens frequently, causing health problems, pain and distress to abused women. Children in households where marital rape occurs often suffer from the psychological effects of witnessing violence, and because it can undermine the ability of their mothers to care for them (Amnesty, 2002)

Marital rape is one of the most under-reported violent crimes because it is socially tolerated. (Mbote, 2000) Some abused women are afraid to report the violence because they rely financially on their husbands for their upkeep and children’s maintenance. Others feel unable to speak out due to fear and humiliation.

The intermingling of traditional and modern meanings of such concepts should not be underestimated nor easily overlooked when addressing the issue of rape among married couples. Research, prevention, intervention, and treatment programs must therefore be sensitive toward culturally appropriate approaches to this issue and must be mindful of the language used to express the various experiences and perceptions in order to gauge an accurate assessment of the prevalence of rape among married couples.

Recommendations

Criminalizing marital rape

There are three options open to the Kenyan legislature. One is by removing the exemption contained in Section 43 (5) of the SOA without additional language. The effect of this would be that marital rape and rape by other perpetrators would be treated the same way. The second option involves enactment of provisions specifically prescribing marital rape, either by specifying that a husband can be held liable for the rape of his wife, or by adding that the fact that the perpetrator is married to the complainant is no defense in a charge of rape. Thirdly, the legislature can enact additional legislation protecting women from spousal sexual violence. However, while criminalization is a necessary first step in the protection of women from marital rape, it is not sufficient as the only remedy. This is because of the inherent limitations of criminal law.

The criminalization of conduct does not necessarily result in change of people’s attitudes towards the conduct.

Judicial intervention

Courts have a primary role in the enforcement and protection of human rights. An active and creative judiciary can be critical in the protection of married women from spousal sexual violence. An important tool at the disposal of the Kenyan judiciary is their power of judicial review which includes nullifying and striking out legislation on the ground that it is unconstitutional. A constitutional challenge may therefore be brought against the marital rape exemption in section 43 (5) of the SOA under the equality and non-discrimination clauses of the Constitution, particularly as they clearly outlaw discrimination on the ground of marital status. From a strategic point of view, bringing a constitutional challenge may be easier than legislative change as litigation would avoid the publicity and likely polarization of legislative reform.

Public education and awareness-raising

There is also need for sustained public education and awareness-raising on the issue of gender based violence with a view to dismantling of gender stereotypes and negative cultural attitudes against women. Both women and men need to be aware of the physical, psychological and economic harms caused by sexual violence at an individual and societal level. It would also be useful to engage traditional and community justice structures in such a campaign with a view to making them more democratic and gender sensitive.

BY;

James Anyanzwa and Kabura Mbiriri

Forced Migration Programme-Kituo Cha Sheria