-INTRODUCTION
- Note that sovereignty of Nations
implies both Equality & Independence of states
- The UN Charter, in Article 2(1),
presumes the principle of equality of member nations
- We all know that there may be
political autonomy of nations, territorial exclusiveness, Legal independenceetc
- But absolute sovereignty in terms of
politics, economics, and population movement and interaction is a myth, no
matter how popular the system of governance is.
Q. SO WHAT IS CONFLICT OF LAWS?
- It is a branch of International
law that regulates civil law suits involving a foreign law element
- A foreign law element implies some
system of law that can potentially determine a civil dispute other than the law
of the forum.
- Conflict of laws is therefore
concerned with just disposal of proceedings with a foreign having a foreign law
element
- It therefore answers the following
questions;
a)… Whether the proposed forum
for litigation is appropriate in resolving the dispute or whether it has
jurisdiction to do that
b)… Or whether it more convenient
and therefore more appropriate to determine the dispute
c)… COLs must also deal with
which law (out of the competing (conflicting) laws is to be applied
- The applicable law has to
provide some remedy to the aggrieved or injured party
- This means that it is always
very possible that more than one system of law can potentially be applied but
the most appropriate will carry the day
- At times, depending on
categorization or characterization, different laws can be applied to different
aspects (say) same contract
- COL is also concerned with the
forum within which the final judgment or arbitral award will enforcement take
place
- In Common law jurisdictions, the term
used is conflict of laws but
- Private international law is at
times used in countries like France, Italy, Spain etc
- International privatelaw is also used
in jurisdictions such as; Germany, Austria, Switzerland, Russia, Scotland etc
- COL is more appropriate because
it deals with issues which are civil in nature
Q. WHAT JUSTIFIES COL?
- Theoretically states can close their
doors and apply municipal laws in all aspects that arise within its
jurisdiction
- But this will occasion injustice to
some parties
- Also, if its nationals residing
overseas were subjected to such, they certainly will raise issues with the
authorities both locally and abroad
- Also look at the way can, as a result
be regarded in one jurisdiction only to void in another
- Also consider the way say a Kenyan
will obtain judgment to be enforced abroad will get a rude shock if the same
cannot be regarded as valid.
- Again the forum and/or law that
parties say to contract choose must be applied and respected
THEORIES ON CONFLICT OF LAWS:
a). Theory of International comity.
- A practice
among countries involving mutual recognition of;
a).
Legislative b). Executive c). Judicial acts of other states
- It gives due
regard to international duty and convenience
- Courtesy granted
out of respect and friendship rather than as an obligation
- In law, we use
LEGAL RECIPROCITY
- It is a give and take
relationship
- Ulrich Huber (1636-1694)
- A professor of law, in a short text,
argued that conflict of laws can only be resolved such that;
a). That laws of each state to
apply within the limits of that government
- Bind all
subjects to it but not beyond
b). All persons within its limits
(whether permanent or temporary) are bound
c). That the sovereign will act
such that rights acquired within the limits of a government retain their force
all over (so far as they do not cause prejudice to the power or rights of
such governments or its subjects).
- The 1st and 2nd maxims show that laws
are territorial, with no force beyond borders, and that
- All persons, foreign or not are
subject to these laws
- The 3rd maxim, implies that laws can
be applied beyond borders (recognition)
- But this recognition has to be with
the consent of the enacting sovereign
- Hence, in Kenya for example we talk
of Cap.43 on Foreign judgment Act or The ratification of Treaties Act, or even
Article 2(5) & (6) of the Constitution
etc.
- The 3rd maxim also invoke elements of
public policy i.e.'…do not cause prejudice to the power or rights of such
governments or its subjects.
- Overall, the maxims laid a firm
foundation to the later developments in the field of conflict of laws of
conflict of laws.
- Read also articles by; Fredrick
Carl, on Sovereignty [1779-1861]
- Dicey on Conflict of laws, [1896]
- The Brussels Convention
- The Rome Convention etc
b). The Economic Interdependence
Theory
- Based on economics and balance of
trade
- No country is an island economically
- No country is 100% self-reliant
- Perfected by globalization (one or
village market)
- Interdependence between nations for
economic reasons, which may result to political relations, national trade-offs,
gains & losses or balance of trade, international business transactions,
etc
- Multi-polarization, and
globalization, each country must focus on long term scarcity etc.
- Two schools emerge from this theory;
A). The Liberals and
B). The Realists
- The Liberals argue that economic
interdependence lowers the likelihood of war
- Value attributed to economic gains
than the effect of war
- Increased optimism
- The benefits of trade are an
incentive [Richard Cobden]
-The Realists, on the other hand
argue high interdependence increase the chances of war
- Similar to the Theory of trade
expectations, i.e. cause constant worry of insecurity and therefore play
ball
-This is where the principle of
opportunity cost is applied properly
c). The Theory of Acquired or
Vested Interest.
- Associated with Dicey
- Based on both the Interdependence of
nations and preference for trade
- Application of foreign law for
convenience i.e. ..serving self and/acquired interests [ Cordozo, an American
judge, in Morris p.8 17th ed]
- Apply a number of permutations and
combinations
- Choice of law depends therefore on a
number of considerations incl.
- Reason, Convenience, Utility [Sec.7
of 'The Treaty Making & Ratification Act 2012]
- Dicey argues that rights duly
acquired in any civilized country should be enforceable.
- But the shortfall of this theory is
that it assumes that for every dispute there is only one jurisdiction
- Yet we know that a country may
decline jurisdiction for a variety of reasons [see Renvoi i.e. sending
back]
d). The Local Area Theory;
- Associated with Cook [1924]
- Apply the law in a manner that is
similar but not identical with the other country
- Read the wording of;
The Judicature Act sec. 3 on
application of UK laws, and
The law of Contract Act Cap 23,
- Recognizing foreign law while
maintaining territorial sovereignty
In summary therefore, conflict of laws
deals with;
- The manner and process of resolving a
civil dispute with two or more jurisdictions potentially applicable
- The difference between two or more
jurisdictions with some connection, such that the outcome depends on which
jurisdiction will seize the matter
- The recognition that the laws of
different countries on same subject matter are in opposition to each other
- Note that each country has exclusive
sovereignty and jurisdiction within its own territory
- Read also the meaning of
country in conflict of laws, a state or country with distinct system of laws
even if within one political country like in federal systems
- Again, no Nation should suffer the
laws of another country by interference with her own to the injury of her own
citizens
- Whether this happens, depend on the
condition of the country in which the law or remedy is sought, the country of
enforcement, the particular state of legislation, her policies, and the
character of her institutions
THE RATIONALE OF
CHOICE OF LAW RULES
- The object of applying foreign law
rather than domestic laws;
- Read Jaffey on Conflict of laws page
567
- The American explanation for the
choice of law ….
- a). To serve the interest of parties
to a suit
- b). To protect and/or advance the
interest of a foreign country or countries
- c). To protect the interest of
interstate and international systems
- d). To keep with the relevant
policies of the forum
- e). To strike a balance between
interests of different states
- f). To protect justified or
reasonable expectations of the parties
- g). Observe the basic policies
underlying the particular field of law [lexcausae]
- h). To ensure certainty and predictability
because of ease to determine the applicable law(s) or the governing law or the
proper law.
PROCECEDURE IN
APPLYING COLs.
- 1). File pleadings with the relevant
superior court or court with jurisdiction
- Court to decide if it has jurisdiction
- Decide against forum-shopping
- 2). Characterize the issue(s) i.e.
cause verses action sought
- LexCausae, the law of the question
- This may mean categorizing issue
between substantive laws against procedural laws
- 3). Each classification or category
of issues with its applicable laws
- This include RENVOI a French
word for 'sending back'
- 4). If any Foreign law applies it has
to be pleaded before the forum
- Note that courts do not take judicial
notice of foreign laws, they have to be proved
- ALLUMINIUM
INDUSTRIES v RAMALPA ALLUMINIUM LTD
[1976] 2 All ER 552,
1 WLR 676.
- Where English law was applied
though Dutch law could have been appropriate
- Neither party pleaded Dutch law
- Case filed in England, Contract had a
clause providing for foreign law
- SZECHTER v
SZECHTER [1971] 286 3 All ER
- Where validity of marriage indicated
that Polish law could apply
- But at the critical moment, the
EXPERT witness went for an operation and was not available for oral examination
- The court applied English law
Q. What does Pleading Foreign law
entail?
- Stating that such and such foreign
law applies to what is in issue
- Being prepared and ready to avail an
EXPERT WITNESS from that foreign country to come and explain to the court how that
foreign law is applied etc.
- Unless the court of the forum decides
to dispense with the foreign expert witness
- Again does not have to be a lawyer,
but anyone who is specialized in the field that is in issue
- He may be a scholar or an author or
one who is well versed with the subject matter
- Read section 48 of the law of
Evidence Act 'When the court has to form an opinion upon a point of foreign law
…….opinions upon that point are admissible if made by persons specially skilled
in such
foreign law……….'
- Section 48 (2) calls such
persons EXPERTS.
- MacMillan Inc. v
Bishop Investment Trust [1999] CLC 417
- Evidence of an expert witness is
necessary for the court to find that foreign law is different from the law of
the forum
- In the absence of that, or if the
Judge is not persuaded by it, the law of the forum will apply even if the issue
is governed by foreign law
- This means that the LEX FORI
principle will apply.
- Either the prove of foreign law
or the judge is persuaded
- It was further stated what the role
of an Expert witness will be;
- 1). To inform the court the relevant
contents of the foreign law; statute, and legislation
- Explain the approach to construction
of words in it etc
- To identify case law or authorities
to assist the court as a source of law
- Assist the court in finding a
solution or make a decision
- He is there to predict the most
likely outcome but not to advance his own/personal views
JURISDICTION PER SE: WHAT TO
CONSIDER!
- a). Special or General
jurisdiction
- May be based
on residence of defendant
- So that
there is a connection between the defendant and the court
- Aspects such as residence
of the defendant i.e. habitual or ordinary
- Place of business etc.
- Voluntary submission by
parties to jurisdiction or they raise objection
- b). Exclusive Jurisdiction
- Based
on the subject matter
- Also issues
of public policy must be taken into account
-
Immovable property, where situ!
-
Corporations
- public
Registries
-
Intellectual properties
-
Recognition & Enforcement
- c). The Aspect of Cost or expenses
- The
cost ferrying and availing witnesses
- Other
expenses, e.g. Expert witness, Advocates
- Cost
of engaging interpreters just in case language barrier
-
Accommodation
- Cost
of litigation generally, in one jurisdiction over another
- d). Predictability or
unpredictability
-
Inherent in the conflict of law rules themselves
- E.g.
the need to prove foreign law
- The
degree of prove that can appreciated by the judges
- The
discretion of the judges on admissibility of evidence
- Re Bonacina, [1912] 2 Ch
394
- Where
an agreement was made in Italy
- It was
not supported by consideration [common law position]
- Yet it was
regarded as a contract
- A clear case of unpredictability
and/or uncertainty on interpretation
- The
general integrity issues and inclination of the country's institutions at times
can influence this.
-
Cooperation or lack of it in litigation proceedings by the forum
- The general rules of litigation procedures etc.
- e). Availability of a remedy
-
No one would wish seek justice in vain
-
nor can court orders be granted in vain
-
Including damages
-
Depends on subject matter
-
Substance and Procedure
-
As a rule, matters of substance will vary
-
Matters of procedure are determined by the court seized of matter i.e. Lexfori
PROCESS OF SERVICE OR
SERVICE OF THE PROCESS. 20/1/2014
- It part of the procedural, largely
governed by the lexfori
- Black's law dictionary defines
it as the formal delivery of summons or other legal process or notice to the
defendant or respondent to a civil suit duly instituted.
- The procedure by which a party
to a lawsuit gives notice to another so that the latter can attend court
or file a defense/reply
- Ordinarily the law requires
personal service, by hand delivery
- Certificate of service or return of
service is issued upon completion
- Or some sign of acknowledgement of
receipt
- Usually there is a period within
which one can validly serve, depends on lexfori
-The main concern of COL is on the fact
that service is out of the country
- The process involves both the
executive and the judiciary
- Each jurisdiction has its own rules
- Read the Hague Convention on the
service of judicial and extra-judicial documents abroad, [1965]
- Also the Hague Convention on the
taking of evidence abroad in civil and commercial matters
- Neither convention binds Kenya
- Member states do not have to serve
through diplomatic channels, but rather through established Centralized
Agency/Authority
- The statutory procedure [Kenya] is
governed by the Civil Procedure Rules
- Order 5 rule 27 provides for that;
-a). The court to grant leave to serve
outside as the court may direct
-b). Rule 21 provides for the procedure
to be followed though the CJ may vary this
-c). The notice to be sealed with High
Court seal by the Registrar
-d). For use out of Kenya
-e). Translated into the official
language of the Foreign Government
-f). The Registrar to forward it to the
minister for foreign affairs (Kenya).
-g). With a request for further
transmission via diplomatic channels to the foreign affairs of the foreign
Government. The translated copy to be annexed
-h). to be served in accordance with
the rules and procedure in that country
-i). Emphasis is on personal service
[27]c
-j). It also provides for return of
service by way of official certificate or declaration upon oath
-k). Channeled back through the same
diplomatic channels, with a declaration that personal service has been made
-l). Where efforts to serve failed the
court can order for alternative service [substituted service]
CIRCUMSTANCES FOR
SERVICE OUT OF KENYA:
-a). If the whole subject matter of the
suit is in respect of immoveable property situate in Kenya
-b). In respect of any act, deed,
contract, obligation, or liability affecting immoveable property in Kenya,
sought to be construed, rectified, set aside or enforced in the suit
-c). Any relief sought against a person
domiciled in Kenya or ordinary resident in Kenya
-d). If in respect of a suit for the
administration of the estate of a deceased person, who [at the time of his
death], was domiciled in Kenya or trustee ……
-f). If the suit is in respect of
breach of contract made in Kenya
-g). or if the was made by or through
an agent trading or residing in Kenya against a principle out of Kenya
-h). If it is for a contract with a
clause or term governed by the laws of Kenya
-i). If it is for a contract with a
clause providing that Kenyan courts have jurisdiction
-j). If in respect of an alleged
frustration of a contract, though out of Kenya would have been performed in
Kenya
-k). If the suit is founded on a tort
committed in Kenya
-l). If it is an injunction …. on
anything to be done in Kenya or if any nuisance in Kenya is sought to be
removed or prevented
-m). If any person out of Kenya is a
necessary party or proper party to a suit against any person duly served in
Kenya
SERVICE OF FOREIGN LEGAL PROCESS IN
KENYA - 23/01/2014
- Order 5 rule 32 applies
- This would be in respect of a suit or
matter or commercial transaction pending in a foreign court or tribunal
- It may be accompanied with a letter
from that foreign court or country or tribunal requesting for service on any
person in Kenya
- It must be submitted to the High
Court [Kenya]with a request or application that the same be served on the
person cited
- The letter from whichever foreign
country or tribunal must be accompanied with a TRANSLATED copy in
the English version
- Service shall be effected on the
person in accordance with Kenya Civil Procedure rules [LEX FORI].
- This may be way of a process
server, court clerk or police etc
-Return of service or affidavit of
service shall be channeled to the Registrar of High Court
-The Registrar of the H.C. shall
channel back the evidence of service, with a certificate duly sealed with the
High court seal
- Labeled for use out of Kenya
- An application in chambers [ex parte]
for substituted service
may be granted by the court,
just in case.
JURISDICTION AND SERVICE
- There is a connection between service
and jurisdiction
- At common law, jurisdiction could
derive upon service on the defendant within the forum
- NB, jurisdiction here refers to the
power and therefore competence for the courts of a given country to hear and
determine a COL suit that is before its forum.
- The common law position may not
apply where there is already a convention that binds member states
- For example, Article 2 of The
Brussels Convention 1968 [now the Brussels Regulations no. 44/2001], a person
can only be sued in the member state in which he or she is domiciled
- Article 4 allows taking
advantage of another member state's exorbitant basis of jurisdiction ….to sue
in it
- E.g. Finland allows anyone to sue in
her courts
- This may mean that if one files a
suit in any jurisdiction so long as he successfully serves the defendant, he
would have conferred jurisdiction on the court in that country and that the
process of service is effective
MAHARANEE OF BARODA
v WILDENSTEIN [1972] 2 QB 283
- A French resident purchased a
painting from the defendant also a resident of France. Later Maharanee
discovered that the painting was not by Boucher. She commenced an action to
rescind the contract by serving the writ [order] on the defendant who was on a
brief visit to England.
- NOTE, that the most appropriate
jurisdiction for purposes of this litigation could have been France, a
jurisdiction with close and real connection; The contract made in
France, Both the plaintiff and the defendant were residents of France, Both
were therefore governed by French law
- Yet, Maharanee chose to sue in
England due to 'FORUM NON CONVENIENS' in FRANCE
- In France, she could have had
difficulties in having her Expert Evidence admitted .Also there could have been
delays in hearing the case in France. Despite clear lack of connection factors,
the court exercised discretion in favor of the plaintiff.
HELD:
- That the defendant was properly
served while within jurisdiction
- That English courts had jurisdiction
to hear and determine the matter
- Please note that the reason to choose
or even oppose [contest] a certain forum or jurisdiction is both
practical and arguable
- But a court must check against forum
shopping meant to and disadvantage the other side while benefitting the other
- Remember COL is about resolving a
dispute where the litigants are from different countries [jurisdictions] or
both might be from same country but the subject matter has an
international element
GRACE v MacARTHUR
[1959] 170 F SUPP 442, US ARKANSAS
- This was in respect of an action in
the Federal court in Arkansas. Service of a writ to the defendant was obtained
BUT one of the defendants was served while in an Aero plane flying over
Arkansas from Memphis to Dallas, Texas.
HELD:
- That the defendant was properly
served while [within] jurisdiction, the territory of Arkansas
- Q. Why is service an issue in COL?
- Because the process itself, and the
actual delivery of summons or the writ [service] and the due
diligence out of jurisdiction can be an issue litigation.
- Note also that jurisdiction of a
state to the space above and onto the sea [for coastal countries] is a matter
of Public International law
- The Lotus ' Where it was stated that
a vessel in the high seas are subject to the authority of the state whose
flag they fly i.e. The law of the flag
- This also applies to the vessels over
the space above i.e. flights
- Again note that at common law, access
to a regular court for justice was/is a matter of right
OCEANIC SUN LINE
SPECIAL SHIPPING v FAY [1988] 79 ALR
- Once a plaintiff has commenced an action
in compliance with the PROCEDURAL RULES [lexfori], it is up to the court to
determine [appropriately] whether it has jurisdiction
- Again if the defendant challenges
this, still the court has to determine the same [ Application for stay of
proceedings]
- This is a balancing
process
HELD by Gaudron;
- That it is the LEX FORI which
provides the answer to the same question when asked about the process of
determining thelaw . It must also provide the answer on STAY OF PROCEEDINGS
application
- Generally the court will be guided
alongside the following principles;
a). All procedural matters must
be governed by the law of the forum [lexfori]
b). All mandatory laws must be
governed by the forum
Note that municipal laws have the potential of overriding the foreign laws
including a foreign judgment
- This is a double edged sword, meaning
a judgment from Kenya for enforcement overseas can easily be discarded if it
falls short of mandatory laws of that country.
- See the provisions the Foreign
Judgment Act, The civil Procedure Act, The Ratification of Treaties Act, The
Constitutional Provisions etc
c). Public Policy Considerations
- Tax and Revenue matters, must be
governed by the forum &lexfori
PATEL v SINGH
-Where it was HELD that courts
would NOT enforce an illegal contract in contravention of Foreign Exchange
- Note that the contract was
[potentially] valid in India where it was made
PHILIP v EYRE, [1870] LR QB
1
- A landmark case in Tort law [to be
discussed later in detail]
- Where it was HELD that no liability
could be imposed if, [ atort actionable overseas] was not actionable
- Double actionability in tort
REVENUE LAWS
- Actions on such matters are
territorial, recognized within the forum
GOVERNMENT OF INDIA
v TAYLOR [1955] AG 491
- Where it was categorically stated
that courts will not enforce a foreign revenue law
RAGAZZANI v KC SETHIA
[1994] LTD, 1956
HELD
- 'Courts do not sit to collect tax
laws for another country'
- Note that revenue laws are meant to
offer a framework within any country on generation financial resources to
support its recurrent and development expenditures.
- They include Direct & Indirect
duties
PENAL LAWS
- A local court cannot enforce a foreign
penal law and likewise no foreign country can recognize a judgment from another
country purporting to enforce another country's penal laws
- penal laws are part and parcel
of a county's sovereignty and therefore territorial
HUNTINGTON v ATTRILL
[1893] AC 150
IN RE ESTATE OF
NORWAY'S APPLICATION [1990] 1 AC 723
- It was HELD That courts have no
jurisdiction to assert such an authority. In effect courts have no jurisdiction
over penal laws of another country
- Again, it will be the lexfori that
will be used to determine whether an issue relates to revenue laws
OTHER PUBLIC LAWS INCLUDE:
- Laws on social security e.g.
NSSF,RBA, CBs, IRA
- Laws on internal security
- Constitutional matters etc
Forum Non Conventions [FNC]
- Circumstances where a forum may be
the preferred one by the parties but not convenient [practically] for
litigation purposes. This may compel the courts of the forum to decline
jurisdiction
Amchem Products Inc.
v British Columbia Workers Board
[1993] 1 scr 897
HELD;
- The test for striking out a claim due
to FNC is where there is another forum that is clearly more appropriate than
the domestic forum , if both are convenient the domestic forum will always
prevail.
- Read more
CHOICE OF LAW IN CONTRACT
a). Express Choice by parties
- Invokes the principle of party
autonomy in contract-making
- The freedom by the parties to freely
and voluntarily negotiate contracts
- Article 3 of the Rome convention,
that the law chosen by the parties govern the contract
- Article 1 allows parties to choose a
law that is different from that of the forum
- Meaning the parties may [both] be in
one country, the forum where the suit is lodged, but opt to be governed by
another county's law on substance
- Article 3(3) contemplates a situation
where choice of law may still be made even if relevant elements may not be
connected with the that country
- But this has to be demonstrated with
reasonable certainty
Read the Francois Viejex case,
a Kenyan case on stay of proceedings
- Meaning, the parties must explicitly
nominate the law to apply
- There has to be a meeting of the
minds, no aspect of mistake
- But the choice [of course] must be
reasonable with certainty
Vita Food Products In v Unus
Shipping Ltd [1939] AC 277
- HELD;
- That parties are free to choose or
select any governing law they wished regardless of any connection to the forum
but it must be;
-a). Bona fide i.e made in good faith,
honestly with a clear intention
-b). Legal i.e. it must meets the legal
aspects e.g. capacity of the parties, and not outlawed
- Howard v Shirlstar
Container Transport ltd [1990] 1 WLR 1292]
- Where a claim by the plaintiff
succeeded despite an offence by the plaintiff.
- The plaintiff, for his own safety,
took off to Ivory Coast with an aircraft without permission from the
airport authorities at the airport in Nigeria.
- The aircraft was later returned to
Nigeria, and the plaintiff was allowed to fly to England where he successfully
filed a suit for the 2nd installment as per the provisions of the
contract
- The court relied on safety aspects on
the part of the plaintiff to award him the claim
-c). Not contrary to public policy
- In SONNAR (NIGERIA) LTD. V.
PARTENREEDRI M S NORDWIND, , [1988] L.R.C. (COMM.) 191
-It was queried whether “parties by
their private act [can] remove the jurisdiction vested by the Constitution.
-It was HELD;
-It was stated that “as a matter of
public policy courts should not be too eager to divest themselves of
jurisdiction conferred on them by the Constitution and by other laws simply
because parties in their private contracts choose a foreign forum and a foreign
law.”[1]
-Oputa J.S.C. characterized these
clauses as attempts to
“remove” the jurisdiction
properly and legally vested in our
courts or “rob” the courts of its
jurisdiction.
-He described this as a “vital
and radical question.”
- With the advent of The Contract
[applicable] Law Act - UK
- Parties in such jurisdictions can now
indicate at the time of
entering contract the law to
govern any dispute that may arise
- Note that [in a general sense], the
express choice of law by
parties can either in a clause
in a contract forming part the
contract or a
subsequent agreement by both parties
-In Fonville v. Kelly III
-It was held that a Stock Purchase
Agreement, which had a
State of Florida choice of law and
forum clause “ousts that
jurisdiction of the Kenya court
regarding any dispute arising
from the Agreement.”
b). Implied choice of law;
- What is meant by 'demonstrated with
reasonable certainty'
in the choice law by parties?
- That all other essentials being
equal, the parties must
sufficiently and without
ambiguity indicate in a clause or
subsequent agreement the law to
apply in their contract
- In the absence of express choice, the
same can be deduced
from the language of the
contract, currency by which payment
is made, laws of country where
contract was made or in
the alternative place/country of
performance, usage of certain
routine or standardized forms,
lexfori being the forum to
which parties have submitted,
the lexcausae, law of
Arbitration tribunal or panel,
etc
Amin Rasheed Shipping Corp.
v Kuwait Ins. co [1983]
- In regard of a contract of insurance
made in Kuwait [Dubai]
- The plaintiff was a Liberian company
residing ]then] in Kuwait
when they [the plaintiff] took
an insurance policy with the
Kuwait ins company [the
plaintiff]
- There was no express choice of
law to apply in case of a
dispute
- In fact, even to imply the applicable
law was not quite easy
- Also, Kuwait as a Country
[then] did not have a clear
insurance policy [law] on
maritime matters
- But the parties had used
English language in drafting the
agreement [Insurance policy]
- The mode of payment was in sterling
pounds [British
currency]
- The standard [Lloyds] forms were used
i.e. British mode of
taking such ins. policies were
adopted
- On other hand,
-The contract [policy] was made
[issued] in Kuwait
- The plaintiff was a resident of
Kuwait
- The insurers [the defendants] were
Kuwait
- Payment was to be made in Kuwait
[place of performance]
-Note that one of the grounds for
contesting the Kuwait forum
was that Kuwait courts would
have difficulties interpreting
documents drafted in English
HELD;
- English law applied, particularly to
give effect to the intention
of the parties i.e. their rights
and obligations be fulfilled
- Kuwait law could not be used because
it was not therein the
1st place [ No remedy under
Kuwait law]
- It also affirmed that Kuwait
courts could hear and determine
the contract [in English]
even better
- And that courts of one Jurisdiction
do not sit to compare
competencies with courts of
another jurisdiction
-The other surrounding [relevant]
factors favored English law
- No single can determine the solution
CompagnieTunisienne de Navigation v
Compagnied'Armement
Maritime [1971] Ac
572-609 Hl
- This case can also be cited in the
express choice of law
- However it is a leading case in
addressing the phrase ' … with
reasonable certainty'
- Also it puts a test to the term '
..sufficient expression with
clarity'
- Contract made in France
- One was a French company, the other
was a Tunisian.
- The contract was in respect of
carriage of oil by the sea
- They adopted a charter party [renting
a ship] clause that the
law of the flag of the vessel carrying
the goods will be
applicable
- At the time of making the agreement,
both parties assumed
that the French company would be
using its own ship
- When the performance of contract was
due, war broke out
[i.e. Israel/ Arab war]
- There was therefore frustration of
contract in relying on
French law
- Meanwhile, in 6 different occasions
the defendant had
employed different ships flying
different flags
Q. Which law did the parties choose?
Q. Was French law the express choice of
the contract?
Q. Was there such a thing as law of the
flag or laws of the flags?
Q. Due to frustration, was the original
intention sustained or
sustainable?
HELD;
- It was reasonable to conclude that
both parties intended to
use French law as the governing
law….. 'talk of equity maxims'
Railli Bros v Campania
NavieraSotaAzinar [1920] 28/01/2014
- Where the Spanish shippers were
contracted in London to
carry goods by the sea from Calcutta
to Barcelona
- Upon delivery of the goods at
Barcelona, they were to be paid
50 pounds/ ton freight
- But Spain had enacted a law [during
the voyage] limiting the
the payment to 10 pounds/ ton
freight
- An action for the recovery of the payment
was unsuccessful
HELD;
- English law was the proper law,
Spanish law was regarded as a
frustration to the Contract
- The claim for payment under Spanish
law failed
c). The law with Real and Close
connection
- Where the parties have neither expressly
nor by clear
implication nominated the
applicable law
- It is a more objective approach
- It is the 'ought to apply law'
- Addressing the law the parties would
have picked in the
circumstances
- The court would use a wide range of
factors, some to do with
the law with real and close
connection
- The court has to impute an intention
from (say)
- unambiguous geographical connection'
- Habitual residence of the defendant
or nationality
- Arbitration nomination [see section 6
of the Act]
- Language of contract
- Format of documents
- Currency
- Law of the flag
- Place where contract was made
- modus operandi, depends on the
subject matter
- The previous way of transacting
business between the parties
- Amin Rasheed Shipping co. v Kuwait Ins.
Co [1984] Ac 50
- NB, this is a landmark case
that addresses almost every
aspect of COL rule
- Remember, conflict of law is both
real and practical
Overriding Rule in Choice of law
- Article 4 of the Rome (1)
Convention
- The law of the forum will apply if
mandatory rules dictate so
despite the choice of a
different law by the parties
- Read Conflict of law in the USA on
this issue of overriding rule
- Again remember the difference between
the law on the
substantive suit and the law on
procedural matters
RENVOI IN COLs
-French word meaning 'sending back' or
return unstopped
- Court must 1st seize the matter, then
decide if it has
jurisdiction
- It must beware of the danger of forum
shopping by plaintiff
- It must characterize the issues,
determine applicable law to
each category- lexcausae
- It must address any INCIDENTAL
QUESTION that may arise
- Especially on matrimonial matters;
essential v formal validity
- Law of place of celebration v law of
domicile, matters of wills,
intestate succession matters v
real property, lexsitus
- The entire case may be referred back
or certain aspects
- Courts can at times reject RENVOI
a). REJECTION OF RENVOI
- If the court of the forum rejects
Renvoi, it will use its domestic
law rules to determine the law
applicable on the substantive
issues, and apply lexfori on
procedural matters
- Meaning, the local courts can seize
and proceed with the
matter but apply the foreign law
rules
- If [say] a Kenyan court rejects renvoi
on the distribution of a
person's moveable property in
Canada, and the person is
domiciled in Canada, the
Canadian law will govern the
distribution
b). PARTIAL RENVOI
- Also known as single Renvoi
- When the court of the forum applies
the domestic law of the
country referred to by that
foreign choice of law rule to
determine the dispute
- I.e. Use the domestic law of the
foreign country's COL
- Exam last season: Suppose a Kenyan
court has to decide who
is entitled to moveable property
left in Kenya by an intestate
who died domiciled in (say)
Mexico,
- And suppose the deceased was a
citizen of Kenya
- According to Kenya law rule, the
succession is governed by the
law of the deceased's domicile,
Mexico law
-Suppose in Mexico the same is governed
by the deceased's
nationality at the date of death,
Kenyan law.
- In such a case Kenya courts have to
accept remission back
and apply Kenyan domestic law
rules
- Note that the outcome of the court's
decision will be
recognized and therefore
enforceable
- This is partial Renvoi
b). Total Renvoi
- AKA 'Double Renvoi' or the
Foreign court theory of Renvoi
- Where the domestic court [for
example], would deal with the
matter in the same manner the
foreign court would
- This means applying not only the
foreign country's choice
of law rule, but also its
doctrine of Renvoi, thus applying
whatever domestic law it would
apply
RE.ANNESLEY [1926] Ch 693
- This was case where a
Testatrix, a British subject died
domiciled in France.
- The English court had to decide who
was entitled to moveable
property she had left in England
- Her Will was valid by English
domestic law, but invalid by
French domestic law to the
extent that she had failed to leave
two thirds [2/3] of her property
to her children
- Under the English law rule, the
essential validity of the Will
was governed by law of domicile
[French law] at her death
HELD;
- The Judge had to take the view that
he had to decide the case
as a French court would have
decided it.
- Note that French courts would accept
Renvoi. Accordingly,
French domestic was applied
In RE ROSS [1930] 1 Ch 377
unless the facts are obvious, one
party to any proceeding must
plead Renvoi for the court to
grant it.
- Note that in certain jurisdictions,
Renvoi in tort has been
outlawed
In the SPILADIA [1987] Ac 460
- It was stated that the most
fundamental principle in Renvoi or
rejection of the same, is to
identify a court in which the case
can be most suitably tried for
the interest of the parties, and
also for the ends of justice
- This is one of the
justification of conflict of laws
- In this regard an application for
stay of proceedings would be
granted only if the proceedings
at the forum are vexatious or
oppressive for litigation
purposes
- Also if there is another forum which
is more convenient than
the forum
ADVANTAGES OF RENVOI
a). It is result-oriented.
- There would be no
need to apply a process or even the law
which
the foreign would not recognize and enforce
b). It therefore protects reasonable
expectations of the parties
-Parties can choose
a certain forum knowing it’s the right
forum
including its procedural laws
c). It particularly protects interests
of parties (especially
couples) who
live or do business in different states
d). It achieves uniformity of decisions
in litigations more
particularly in Total Renvoi,
irrespective of the country in
which litigation takes place
d). Renvoi operates as a deterrent to
forum shopping
- Note that in certain jurisdictions
forum shopping is not
an offence nor is it outlawed
- The latter is premised on the fact
that forum shopping is more
to do with seeking procedural advantage
rather substance
Disadvantages of Renvoi;
- Practical reasons
- Hard to differentiate between
nationality and domicile
- It is time consuming in certain
situations
CHOICE OF LAW IN TORT
- Note that most convention incl. the
Rome convention focus
on contract
- Until mid 1990's governing law rules
on tort was based on
common law
- So that if one committed a tort
in country X, liability could
only be actionable in that
country X
- " When you in Rome do as the
Romans do", a proverb
associated with early
Christianity.
- That when you are a visitor in Rome
or other country, abide
by the customs and traditions of
that place
- In that regard, LEX LOCI DELICTI [
law of the country in which a
tort occurs should apply
- This is regarded as the natural
applicable law
- Yet lex loci delicti shouldn’t govern
all aspects of tortuous
actions
- But the if both parties belong to
same country then it is easy
to understand, easy to initiate
claims etc.
- it is easy also to get justice if
both parties belong to same
country
- But at times a tort may have 'a
proper law' applicable to it i.e.
- the law with which the tort is
closely related
- So that to avoid inappropriate
decisions the rights and
liabilities in tort must be governed
by the law with the most
significant relationship
BABCOCK V. JACKSON, 191 N.E.2D 279
(N.Y. 1963)
- Where both parties [plaintiff and
defendant] were residents of
New York state.
- They went on a trip to Ontario in the
defendants car
- While in Ontario, the plaintiff was
injured due to the
negligence act driving by the
defendant
- The plaintiff sued in New York
- Note that under Ontario law the
defendant could not be liable
because of "Guest
Statute" which provided that drivers were
not liable in negligence to a
gratuitous passenger [ given
without consideration]
- But under New York law the defendant
would liable
HELD
- The New York court rejected the LEX
LOCI DELICTI [place of
tort] rule
- Instead the court invoked the law of
the country with the
most significant relationship
with the events (tort) and the
parties involved
- AKA 'center of gravity' test or
grouping of contacts theory' a
deviation from the traditional
LEX LOCI DELICTI
- In this a court examine each aspect/parties
with the states
closely connected
- Note that Ontario law was aimed at
protecting drivers from
tortuous actions based on simple
lifts, and also fraudulent
claims by passengers
- In suing and applying New York law the
plaintiff succeeded
REICH v PURCELL
[1967] 432 2nd Ed p.727
- The plaintiff and his wife lived in
Ohio
- The wife was killed while driving her
car in Missouri, in a
collision caused by negligence
of the defendant, who lived in
California
-The plaintiff sued in California for
damages and wrongful
death of his wife
- By the law of Ohio, Missouri, and
California, the defendant
could be liable.
- But Missouri law limited the amount
of damages recoverable
to $ 25000
- The other states [Ohio &
California], the defendant could
recover full compensation for
the loss
HELD;
- The law of Ohio should be applied
- It was argued that the Missouri
statute where the tort
occurred was pro-defendant
- i.e. The statute was avoiding
imposing excessive financial
burden on the defendant
- But Missouri's concern should be for
Missouri residents [esp.
the defendants] and not
defendants from other states
By contrast Ohio law was meant
to reward/compensate or
secure the defendants for the wrongful
death
- In both cases only one state had
interest in the case
- It has been argued that this was a
case of false conflict of law
KRELL v HENDERSON [1960]
270 NYS 552 2nd ED
- In this case both countries
[parties]had an interest, the court
of the forum [New York] applied
the law of the forum [New
York law]
- Read section 13 of the
'International Law Act' [1995] on
defamation
- Claims for slander, libel & other
malicious falsehoods
- That in most claims on defamation, the
statutory choice of law
rules may not apply
- Also the statutory rules only apply
to events which applied
before 1995
- Otherwise the common law position
articulated in sec.11
a). General rule is that the law of
country where events took place
b). Where elements of the event occur
in different countries
the
general rule is;
- a cause of action
on personal injury or death, the law of the
the
country where the injurred or deceaased was when it
happened
- Injury to property,
the law of the country where the
property
situate when the injury took place
- All other cases,
the law of country where most significant
element(s) occurred
- This means therefore that the common
law position allows
require actionability in
both laws [the law of the forum & the
foreign country] despite the
abolition of certain rules such as
[under section 10 of the Act]
which;
(a).
- require actionability
under both the law of the forum and
the law of another
country for the purpose of
determining whether
a TORT OR DELICT is actionable;
(b).
- allow (as an exception from
the rules falling within
paragraph (a) above)
for the law of a single country to
be applied for the
purpose of determining theissues,
or any of the issues arising.
are hereby abolished so far as
they apply to any claim in
tort or delicti which is not
excluded from the operation of
this Part by section 13 below.
- At times the LEX LOCI DELICTI can be
complex where
the defendant acts in one
country and the effect [tort] in
another country
- E.g. goods produced in one country
and consumed in
another where injury occurs
- Financial advice is given in one
country and execution is
done in another country
- The answer to this is the place where
the substantive
cause of action took place
THE HALLEY [1868] LR 2 PC 193
- Where a ship owned by a Norwegian
plaintiff collided
with one owned by an English
defendant in the Belgian
territorial waters
- The collision was due to the
negligence of the pilot
- The plaintiff sued for damages in
England
- Under Belgian law LEX LOCI DELICTI,
the defendant is
vicarious liable for the pilot's
negligence but
- Under then English law the defendant
was not liable
HELD;
- The court held that the defendant was
not liable
English law did not provide for
it .
-So that a rule was established 'no
matter a foreign law
element in the case, a defendant
was not liable unless the
English law provided for it
PHILIPS v EYRE [1870] LR 6
QB1
-The defendant was the governor of
Jamaica, who was
experiencing a rebellion then
-He imprisoned the plaintiff in order
to put down the
rebellion
-Under Jamaican & English laws this
would amount to
battery and false imprisonment
-BUT Jamaica passed a law which applied
in retrospect,
making the defendants arrest
& imprisonment lawful
-In effect therefore the defendant was
liable under English
law but not liable under Jamaica
law
HELD;
-As a general rule, in order to found a
suit in
England for a wrong committed
abroad, two conditions
must be fulfilled;
i).The tort [wrong] must be in such a
character that
it would have been
actionable if committed in England
ii).The act must not have been
justifiable by the law of the
place where the act was
done.
-This was the genesis of the 'double
actionability rule'
-The action in England therefore failed
CHAPLAIN v BOYS [1971] AC 356
-In which the rule in Philip v Eyre was
reconsidered
-In this Chaplain case, both the
plaintiff and defendant
were members of the British armed
forces, residents of
England
-At one time both were stationed in
Malta in the central Mediterranean
-While in this Malta Island, they were
involved in an
accident in which the plaintiff
was injured due to the
negligence of the defendant
-The plaintiff sued in England
-Under both English & Malta laws
the defendant was liable
-But under Malta law the plaintiff
could only recover
pecuniary loss amounting to 53
pounds
-While in English law he could also
recover damages for
the pain and suffering & loss
of amenity [amenities are
any tangible or intangible
benefits of a property,
especially those that increase
its attractiveness or value]
HELD;
-It was unanimously held by the house
of lords [though for
different reasons], that the rule
in Philip v Eyre is a
general rule to which there
should be general exceptions
[meaning the rule is flexible]
-It’s the position as between the
actual parties in the
particular circumstances of the
case which determine
whether or not an defendant's
conduct is actionable
-A defense under either 'the lex loci
delicti' or 'lexfori'
the claim may be barred
-E.g. if there is an element of
contributory negligence,
under lex loci delicti the claim
will fail even if the lexfori
provides for apportionment
ANDERSON v ERIC ANDERSON RADIO & TV
[1966] 114 CLR 20
-This is an Australian case in which
the lexfori denied
recovery but the lex loci delicti
provided for apportionment
-It has been argued that this approach
encourages forum
shopping [occasioning injustice
to the defendant],
-Read
MACHADO v FONTES ([1897] 2 Q. B. 231).
-An action will lie in the English
Courts for a tort committed outside the
jurisdiction, provided the act
complained of is wrongful, both
by the law of this country and
the law of the country where its
committed.
The defendant published in Brazil a
document libeling the
plaintiff in respect of which, by the
law of Brazil, only a
criminal prosecution would lie.
Held, that an action would lie in England
-Clearly this means that this
rule at times imposes liability
where there may be no civil
liability according to lex loci
delicti
EXCEPTION RULE
-Envisaged by the American restatement;
a). Rights & liabilities in tort
are determined by the law of
the state
which, as to the issue, has the most
significant
relationship to the occurrence & the parties
b). Where the application of the double
actionability rule
would lead to
an unjust decision, a particular issue may
be governed by
a single rule - as an exception
-This rule of [private international
law] has since been
either qualified or done away
with [like in the US above]-
-English common law required that a
tort action could be brought in England in respect of wrongs committed
abroad only if the act complained of was wrong both in England and in the place
where the wrong was committed.
-This rule has inhibited the English
courts from
exercising jurisdiction over,
say, the infringement
of a French patent even when the
court had
personal jurisdiction over the
defendant since the
infringement of a French patent
was not a tort in
England.
-This common law rule has now been
abrogated for
all actions, except defamation
actions, by the
Private International Law
(Miscellaneous
Provisions) Act 1995.
-The effect of this is that courts in
the UK will now
be able to exercise jurisdiction,
inter alia, to the full extent
permitted by the
Brussels Convention on
Jurisdiction and
Enforcement of Judgments in Civil
and
Commercial Matters.
-This [Brussels convention], is
effective between/
among members of the EU,
-This Convention shall apply in civil
and commercial matters
But it shall not extend, in
particular, to revenue, customs or
administrative matters.
-Also the Convention shall not apply
to:
-To the status or legal capacity of
natural persons, rights in
property arising out of a
matrimonial relationship, wills and
succession;
-bankruptcy, proceedings relating to
the winding up of
insolvent companies or other
legal persons, judicial
arrangements, compositions and
analogous proceedings;
-social security;
-Subject to the provisions of this
Convention, persons
domiciled in a Contracting State
shall, whatever their
nationality, be sued in the
courts of that State.
-Persons who are not nationals of the
State in which
they are domiciled shall be
governed by the rules of
-This 1968 Brussels convention, [a
treaty signed by the then six members of the
Communities], has
since been amended on several occasions
-In fact it has now been
almost completely superseded by a regulation adopted in 2001 & 2004,
the Brussels I &
11 regulation resp.
-The Brussels Convention will be
replaced by the new Lugano Convention,[ 1988 the then 12
member states of the
European Communities signed a treaty, the Lugano convention with the
then six members of the European Free Trade Association: Austria,
Finland, Iceland,
Norway, Sweden and
Switzerland].
-The Lugano Convention served to
extend the recognition
-As a basic rule therefore EU
defendants
should be sued in the country of
their domicile.
-Unless some other jurisdiction is
specifically
permitted.
-In the case of actions for tort or
delicti, an
additional possible forum is
permitted, i.e. the
courts of the location where the
harmful event
occurred.
-Thus, article 5(3) ' in matters relating
to tort, delicti
or quasi delicti, in the courts
for the place where the
harmful event occurred'
-Other provisions of the convention
outside tort include;
a)-That a person domiciled in a
Contracting State may, [in
another Contracting State], be sued in matters relating to a
contract, in the courts for the place of performance of the
obligation in question;
b)-In matters
relating to maintenance, in the courts for the
place where the maintenance creditor is domiciled or
habitually resident
or, if the matter is ancillary to
proceedings concerning the status of a person, in the court
which, according to its own law, has jurisdiction to
entertain those proceedings, unless that jurisdiction is
based solely on the nationality of one of the parties;
c)- as regards to a
civil claim for damages or restitution
which is based on an act giving rise to criminal
proceedings, in the court seized of those proceedings, to
the extent that that court has jurisdiction under its own
law to entertain civil proceedings;
d)- as regards a
dispute arising out of the operations of a
branch, agency or other establishment, in the courts for
the place in which
the branch, agency or other
establishment is situated;
d)-. as settler,
trustee or beneficiary of a trust created by the
operation of a statute, or by a written instrument, or
created orally and evidenced in writing, in the courts of
the Contracting State in which the trust is domiciled
-The convention also gives all EU
courts the right
to grant provisional relief even
if they would not
otherwise have jurisdiction,
-This, for example is the basis on
which the Dutch
courts grant wide injunctions against
patent
infringement.
This recent changes to British
law now opens the
door to the possibility of
following in the steps of
the Dutch courts.
-Torts in Conflict of laws has
generated considerable
jurisprudence in recent times.
-With Industrial and technological
developments, as well as
advancements in international
transportation, torts have become
a complex area of private
international law problems.
-In Africa there has not been any
authoritative judicial
pronouncement on the topic,
instead there are as many diverse
pronouncements as there are
Jurisdictions.
RAGE MOHAMMED ALI V. ABDULLAHIM MAASAI
[2005] EKLR.
-The case arose out of an accident in
Uganda.
-Both parties were citizens and
residents of Kenya.
-The plaintiff brought a claim in
contract (instead of tort)
-He was claiming general and special
damages arising from
injuries sustained in the
accident.
-The court disallowed the claim on the
ground that the plaintiff
was unable to prove that he was
an employee of the defendant. It HELD,
- “this is a simple and straight
forward case of a motor vehicle
accident that took place in a
foreign country outside the limits
of the jurisdiction of the courts
in Kenya.”
-Neither counsel nor the court raised
the possibility of a claim in
tort and the concomitant
[accompanying] choice of law issues
that would have called for
resolution.
-Talk of the indolent versus the
vigilant in equity
-The trend is therefore towards
upholding the lex loci delicti -
commissi as the choice of law rule in
tort.
English double actionability
rule. [Reid Mortensen, Homing Devices in Choice of Tort Law: Australian,
British, and Canadian Approaches, 55 I.C.L.Q. 839 (2006)].
-We have seen the United Kingdom has
also reformed its law on this issue by statute.
-It remains to be seen whether African
countries will follow this
trend.
-In Nigeria for example, case law
relating to intra-state torts
supports both the double
actionability rule and the lex loci
delicti principle.
-A Ghana[ian] court has expressed a
preference for parties to
sue in the state in which “the
cause of action arose and
according to whose law the liability
is to be determined, but it
is yet to be decided what law
will apply.[Signal Oil & Gas
Company v. Bristow Helicopters
Ltd., [1976] 1 G.L.R. 371, 379 (Ghana).]
-In SOUTH AFRICA, the consensus amongst
scholars is that the
issue is res nova,
[something new] and thus it is for the Courts
to decide which of the various
approaches to choice of law in
torts they want to adopt.
-Africa has also stagnated because of
the co-existence of multiple normative [model or ideal] systems within
the same jurisdiction.
-There is no homogeneity in judicial
precedents even within
same jurisdiction
-They all revolve around; internal or
intra-national conflicts
together with laws
inherited from the colonial and immediate
post-colonial era(s).
-During these times, national
authorities had to address how
numerous normative systems such
as customary laws, religious
laws, and state laws could be
made to co-exist.
-Incidentally, there may be no conflict
of laws to deal with if the
above historical problems did not
exist.
-Note that, it was the problems
generated by intra-national
conflict of laws that sowed the
seed for the development of
private international law
in Europe.
-In fact, it has been argued, that the
interaction between the
laws of the Italian city-states
emerging after the collapse of the
Roman Empire laid the core
foundation for the discipline.
-The problems of internal conflict of
laws in Africa in particular
mirror those of private
international law, but they are founded
on a different basis, weak
institutional framework, politics and
ethnicity etc
-Whether one applies the traditional
rule or an exception rule
or not will depend on a number of
considerations.
THE EXCEPTION RULE?
-This refers to circumstances where,
instead of applying the
applicable law under the general
rule, one looks for the law of
the country with which the tort
is most closely connected
-Consideration should be based on;
-Refer to theories on conflict of laws
esp. the vested interest
theory etc
-The significance of the factors which
connect a tort to a particular country
-Babcock v. Jackson, 191 N.E.2d 279
(N.Y. 1963) is a
landmark case in this regard
-At times associated with the VESTED
INTEREST theory
-Note that this was in regard of a
husband and wife from New
York who were on a car trip with a
friend Babcock to Ontario.
where they had a motor vehicle accident.
-Babcock sued Jackson, the driver,
claiming his negligence
caused the car crash.
-This case brought up a question of
‘choice of law’;
-whether the law of the place of
residence of the accident
victims (New York) could be
applied,
-or, should the law of the place of the
tort (Ontario) be applied.
-Traditionally, the law of the place of
the accident would apply.
-But remember, Ontario had a law that
prohibited passengers
from suing the driver(s).
-Therefore the court rejected a
traditional rule [fixed method of
determining which law should
apply],
-Instead, it applied a process of
weighing factors [vested interest] such as;
-relationship between the parties,
-decision to take the trip,
-connections to the locality.
-Thus, the Court relied on the
substantial connection of the
parties with New York
-So that it would have been unfair to
apply the law of Ontario as
the location was largely
fortuitous [accidental].
-The Court found that the jurisdiction
with the most connections
was New York
-Also New York law provided a
remedy[pro-claimant/vested
interest]
-New York law applied
-Compare this with the Kenyan case of;
RAGE MOHAMMED ALI v ABDULLAHIM
MAASAI [2005] KLR
-Talk of vested interest, and you may
see none in this case
-The case largely failed because of
wrong characterization
though the court also invoked lex
loci delecti
-Put in another way the case was lost
on technicality rather
than on substance
-But clearly the circumstances are
similar to the Babcock v
Jacobson case
DOMICILE & PERSONAL FACTORS
[COL] 06/02/2014
-Read; The Constitution [2010],
'The Domicile Act' [Kenya] &
other laws and Conventions
-Important points to note
-“country” means a sovereign State….
-Article 19 of the Rome Convention on
country defines a foreign element & foreign country to mean 'a non-host
country element and country other than host country
-Note that the Rome Convention [though
on contract],
states that "where a state
comprises several territorial
units, each of which has its own rules
of law ……, each territorial unit shall be considered as a country for purposes
of identifying the applicable law …."
-Foreign element therefore means simply
a contact with
some system of law other than
that of the forum
-There are instances where a state
which is part of a large
country in the political sense
but has distinct laws
[especially in a federal system]
may be viewed as a
country
-As long as that state is sovereign
-Note that Conflict of Laws is
primarily that jurisprudentia
concerned with the just disposal of
proceedings with a
foreign element
-This kind of jurisprudence is founded
on the recognition that proceedings can potentially be lodged and determined in
the forum or be referred to another country for the same,
-or the foreign law be used in the
forum in same way domestic laws can be used by a foreign country
-At the end, the guiding principle is
the home connection
RESIDENCE
-Place of dwelling, where one lives
temporarily or
permanently
-In certain jurisdictions and in the
legal sense residence is
more than merely temporary.
-Also used interchangeably with the
term "domicile".
-However note that a person may have more
than one residence but may not have more than one legal domicile,
-The latter is their primary residence
for purposes of obtaining the jurisdiction of the court in the area of
residence.
-In the S.M.Otieno caseOtieno
v
Ougo & another
High Court, Nairobi February 13,
1987Bosire J
, [Otienov Ougo&
another, High Court, Nairobi [1987],
-the term home and house became an
issue, home being more of
a permanent living place with
some cultural connotations.
-In the USA the military [for example]
there is a difference
between the terms Home [of
Record] and Legal Residence.
-One's "Home of Record" is
the place one was living when they
entered the military
-Therefore the terms residence, home,
domicile or even
house may be used differently by
different people and for
different reasons.
-In Conflict of laws, the approach is
as follows;
a)- ORDINARY RESIDENCE;
-Living or staying in a particular
country with some degree
of continuity but not on a
permanent basis
-Ordinary residence can be changed in a
day, and one can be an
ordinary resident in more than
one place/country
-In fact some argue that a child [for
example], can be regarded
as an ordinary resident where
parents live, but
this is arguable
R -v- Barnet LBC ex parte Shah
[1983] 1 All ER 226.
-The House of Lords HELD;
a)-That Ordinary residence is
established if there
is a regular
habitual mode of life in a particular place
-the continuity of
which has persisted apart from
temporary or
occasional absences.
-The residence must
be voluntary and adopted for
a
settled purpose.
b)-A person can be ordinarily resident
in more than one
country at the same
time. (Lord Scarman described this
as an important factor
distinguishing ordinary residence
from [habitual] domicile
-Ordinary residence is proven
more by evidence
of matters capable of
objective proof than by evidence
as to state of mind.
-In SIGGINS [1984] IMM AR 14
-It was HELD;
-that there are times when a court may
consider whether a
person’s purpose has been
followed up by his subsequent
actions.
-Therefore, a person’s intention or
state of mind at the
date on which he is seeking to be
regarded as ordinary
can be taken into account,
-as do his subsequent actions where
they are relevant or not to that intention or state of mind.
-Unless there is clear evidence that a
person is in a country or residence there has been voluntarily adopted.
-Residence for a settled purpose here means showing sufficient
degree of continuity.
-The purpose may be general or
specific, for example
education, business or
profession, employment, health, family
or merely "love of the
place".
-Settled in this context means ‘fixed’
or ‘predetermined’, as
opposed to merely casual,
Ordinary residents cover such
purposes;
-Entry for settlement
-Employment (with or without permit)
-Business
-Self-employment
-Study
-Working holiday-makers
-Writers and artists.
-Residence for a settled purpose here
means showing sufficient
degree of continuity.
-The purpose may be general or
specific, for example
education, business or
profession, employment, health, family
or merely "love of the
place".
-Settled in this context means ‘fixed’
or ‘predetermined’, as
opposed to merely casual,
Ordinary residents cover such
purposes;
-Entry for settlement
-Employment (with or without permit)
-Business
-Self-employment
-Study
-Working holiday-makers
-Writers and artists.
R -V- IMMIGRATION APPEAL TRIBUNAL EX P
NG [1986
-The duration of an absence is less
important than the purpose
that lies behind it.
-In this case the subject was
required to demonstrate that he
had been ordinarily resident in
the UK for a period of 5 years.
-He travelled to Hong Kong on 24 August
1967, having, by then,
been ordinarily resident in the
UK for four years and 360 days.
-His employment in the UK had ceased on
5 August 1967,
-But he was paid until 31 August, as he
was owed leave.
-The Divisional Court agreed with the
Tribunal's view
-that since he had left the United
Kingdom with no discernible intention of returning
-Mr Ng ceased to be ordinarily resident
in this country either immediately following his departure or on arrival in
Hong Kong.
-Had he intended nothing more than a
holiday in Hong Kong, his ordinary residence in the UK would have continued.
-In STRANSKY -V- STRANSKY[1954] P 428,
-Here, a woman was required to
demonstrate that she had
been ordinarily resident in UK
for the preceding 3 years.
-Despite overseas absences of more than
15 months during that period,
-It was HELD;
-that, on the facts, she had remained
ordinarily resident here in
the natural and ordinary
meaning of those words.
-The maintenance of a home and family
in a particular country
during an absence abroad is not
conclusive evidence that ordinary residence continued,
-As a general rule it may be assumed
that a child under the age
of 18/16 [depending on country]shares
the same place of
ordinary residence as his or her
parents.
-This was held to be the position in Re
P(GE) (an infant) [1964] 3 All ER 977
-Even though the minor in question was
away at boarding
school and later taken abroad by
one of the parents without
the consent of the other.
-In TELLES,
-It held;
- that a minor did not cease to be
ordinarily resident in
the UK as long as his parents
continued, despite
temporary absences.
b)- HABITUAL RESIDENCE;
-Associated with the Hague Convention
though not defined
-But it used to mean the country where
one intends to live
permanently
-It has been argued that a person's
habitual residence cannot
be acquired in a single day
-In any case it must be for a settled
purpose
-At times used interchangeably with
Domicile
-But, as will be argued below, the
difference with ordinary
residence is a matter of
interpretation, otherwise they are
same
-How long is long enough to demonstrate
intention has always
been contentious, thus;
IKIMI v IKIMI 2001 EWCA 873
-A Nigerian/England case
-The appellant husband, Chief Tom
Ikimi, is a 56 year old Nigerian.
-The respondent wife, Teresa Ikimi, is
also Nigerian.
-The respondent wife, Teresa Ikimi, is
also Nigerian. She is 50.
-The husband is an architect and
politician whilst the wife is a lawyer.
-They are Roman Catholics and married
in November 1977.
-In July 1978 they set up a second home
in London, later with a
four bed roomed house and
substantial property worth
thousands of dollars.
-They later filed divorce proceedings,
and the question of
habitual residence arose or
-put another way, whether one could 2
two habitual
residences at the same time
HELD;
-To be resident in a country for 161
days in a year was sufficient
in the circumstances for the
acquisition of habitual residence
compare this decision with;
ARMSTRONG V ARMSTRONG [2003] EWHC
-Also on matrimonial
proceedings/divorce
- Determination of habitual residence
-i.e. Existence of second habitual
residence of husband
-The husband applied to set aside the
certificate of entitlement
to a decree nisi & and for
the rescission of dissolution of
marriage obtained in November
2002,
-[A decree nisi from Latinnisi,
meaning unless' a court order
that does not have any force
until such time that a particular
condition is met, such as a
subsequent petition to the court or
the passage of a specified period
of time.
Once the condition is met, the
ruling becomes decree absolute
and is binding].
-The application was allowed on the
basis that the husband did
not have a second habitual
residence in England and Wales
-71 days residence in a country was
held to be habitual
residence for purposes of divorce
proceedings
MARK V MARK [2005]
UKHL 42 AC 98
-In which the house of lords confirmed
that it is indeed possible
to acquire habitual residence at
least for tax purposes, even
though the residence was not
lawful
-Note that this is the position in most
jurisdictions where all
income is taxable regardless of
its lawfulness
-But remember in R v BARNET [1983]
discussed above,
-unlawful ordinary residence was refused
on grounds of public
policy
-It has been argued that the test of
habitual residence lies with
the voluntariness
BREUNING v BREUNING [2002] EWHC
-It was held that the continued
presence in the UK of someone who had no choice but to remain there for
medical treatment did not constitute habitual residence
-Habitual residence entails each case
standing on its own feet
Re G [2007] EWHC 2807
-In this case the court refused to
acknowledge habitual residence of a child in respect of a country in which they
have never resided
-In this case the younger child had
been born in England following an abduction of the older child from Canada
-The court found that the child was
habitually resident in England since he had not been resident anywhere else
-Note that the child was in the care of
the mother whom the court had accepted was at the birth of the child habitually
resident in the UK
Re F [2006] EWHC 2199
-In which a child born in Israel was
considered habitually resident there because the same [child] had not been
resident anywhere else.
-The child was in the physical care of
the mother who was habitually resident in Israel at the time of birth [of the
child]
-Note that the term has now a new
meaning, i.e. "the connecting factor"
SWADDLING v ADJUDICTION OFFICER
[1999] ECR 1-1075
-Which was concerned with social
security entitlement under regulation 1408/71
It was HELD;
That in the context of social security
law, the term has a community-wide meaning
-It means the place in which a person's
habitual centre of his interests is to be found
Courts in England have in recent
times held that all factors must be taken into account to determine habitual
residence i.e. permanent interests
LAW of DOMICILE;
-B y domicile we mean HOME, the permanent
place
WHICKER v HUME [1858] 28 LJ
Ch 396
-It was held that a person's domicile
means the place where he has his permanent home
-But it is not right to just equate
domicile with home
-A person may have two or more homes
[but not domicile],
-Section 10 of Kenya's Domicile Act
states that no person may
have more than one domicile at
any one time
-The proper interpretation of this is,
that no person may have
more than one domicile for same
purpose
-One can be homeless but must have a
domicile.
-So that domicile is an idea of law
while home is a social-
cultural concept. BELL v KENNEDY
[1868] LR 1 307
-"The law of England, and of
almost all civilized countries,
ascribes to each individual at
his birth two distinct legal states
or conditions;
-one by virtue of which he becomes the
subject of some
particular country, binding him
by the tie of natural allegiance, and which may be called his political status;
-another, by virtue of which he has
ascribed to him the
character of a citizen of some
particular country, and as such is
possessed of certain municipal
rights, and subject to certain
obligations,
-The latter character is the civil status
or condition of the
individual, and may be quite
different from his political status.
-The political status may depend
on different laws in different
countries;
-The civil status is governed
universally by one single
principle, namely, that of
domicile, which is the criterion
established by law for the purpose of
determining civil status.
-It is on this basis that the personal
rights of the party [i.e. his majority or minority, his marriage, succession,
testacy, or intestacy, etc. ], must depend
RAMSEY v LIVERPOOL ROYAL INFIRMACY
[1930]
-In this case George Bowie was
domiciled in Scotlad
-Later he moved to England [Liverpool]
where he lived for the last 36 years
-During this 36 years, he never set
foot [went back in Scotland
-The court had to decide on the formal
validity of his will
HELD;
-House of Lords held that Bowie was
still domiciled in Scotland
at the date of his death
-By this holding, the court was able to
uphold the validity of his
will [testate]
-So that the nature of the issue before
the court influenced the
court's decision
-Had the court regarded the England domicile,
the will would
been invalid
[intestate]
LEX FORI & DOMICILE
-From the above case, domicile must be
decided based on lexfori
-Courts must apply their own rules to
determine domicile
Re ANNESLEY [1926] Ch 692
-It was HELD;
-That domicile must be classified
according to the law of the
forum
3. Domicil of origin
Every person shall be deemed to have
acquired, at the date of his birth—
(a) if he is born legitimate or deemed
to be legitimate, the domicile of his
father, or, if he is born posthumously,
the domicil which his father had
at the date of his death;
(b) if he is born illegitimate, the
domicile of his mother.
4. Foundlings [Infants or small child
abandoned]
-An infant who is a foundling shall be
deemed to have
acquired domicile in the country
where he is found.
5. Legitimation
An infant who is legitimated by the
marriage of his parents shall acquire the
domicil of his father at the date of
the legitimation.
6. Adoption
An infant whose adoption has been
authorized by a court of competent
jurisdiction or recognized by a
declaratory decree of such a court shall, as from
the date of the order or decree,
acquire the domicil of the adopter or, where he is
adopted by two spouses, that of the
husband.
7. Marriage
A woman shall, on marriage, acquire the
domicil of her husband.
8. Domicil of choice
(1) Where a person, not being under any
disability, takes up residence in a
country other than that of his domicil
with the intention of making that country
his permanent home, or where, being
resident in a country other than that of his
domicil, he decides to make that
country his permanent home, he shall, as from
CAP. 37
Law of Domicil
L12-5
the date of so taking up residence or
of such decision, as the case may be, acquire
domicil in that country and shall cease
to have his former domicil.
(2) A person may intend or decide to
make a country his permanent home even
though he contemplates leaving it
should circumstances change.
(3) An adult married woman shall not,
by reason of being married, be incapable
of acquiring an independent domicil of
choice.
(4) The acquisition of a domicil of
choice by a married man shall not, of itself,
change the domicil of his adult wife or
wives, but the fact that a wife is present with
her husband in the country of his
domicil of choice at the time when he acquires
that domicil or subsequently joins him
in that country shall raise a rebuttable
presumption that the wife has also
acquired that domicil.
9. Consequential change of domicil
(1) Subject to the provisions of
subsections (2) and (3) of this section, the
domicil of an infant shall change—
(a) where the infant was born
legitimate or is deemed to be legitimate or
has been legitimated, with that of his
father, or if his father is dead,
with that of his mother; or
(b) where the infant is illegitimate,
with that of his mother:
Provided that where the custody of an
infant has been0 entrusted to his mother
by decree of a court of competent
jurisdiction, his domicil shall not change with that
of his father but shall change with
that of his mother.
(2) The domicil of an infant female who
is married shall change with that of
her husband.
(3) The domicil of an infant, other
than a female who is married, whose
adoption has been authorized by a court
of competent jurisdiction or recognised
by a declaratory decree of such a
court, shall change with that of his adopter or,
where he was adopted by two spouses,
that of the husband, or, if the husband is
dead, that of the wife.
10. Unity and continuity of domicil
(1) No person may have more than one
domicil at any time and no person shall
be deemed to be without a domicil.
(2) Notwithstanding that he may have
left the country of his domicil with the
intention of never returning, a person
shall retain such domicil until he acquires a
new domicil in accordance with the
provisions of this Act.
LAW of DOMICILE;
-B y domicile we mean HOME, the
permanent place
WHICKER v HUME [1858] 28 LJ
Ch 396
-'By domicile, we mean the permanent
home, and if you do
not understand your permanent
home, I am afraid that no
illustration drawn from foreign
writers or foreign languages
will very much help you to it'. Lord Cranworth'
-It was therefore HELD;
-That a person's domicile means the
place where he has his permanent home
-But it is not right to just equate
domicile with home
-A person may have two or more homes
[but not domicile],
-Section 10 of Kenya's Domicile Act
states that no person may
have more than one domicile at
any one time
a).-The proper interpretation of this
is, that no person may
have more than one domicile for
same purpose
-One can be homeless but must
have a domicile.
-So that domicile is an idea of
law while home is a social-
cultural concept. BELL v KENNEDY
[1868] LR 1 307
-"The law of England, and of
almost all civilized countries,
ascribes to each
individual at his birth two distinct legal states
or conditions;
-one by virtue of which he
becomes the subject of some
particular country, binding
him by the tie of natural
allegiance, and which may be
called his political status;
-another, by virtue of which he
has ascribed to him the
character of a citizen of some
particular country, and as such is
possessed of certain municipal rights,
and subject to certain
obligations,
-The latter character is the
civil status or condition of the
individual, and may be quite
different from his political status.
-The political status may
depend on different laws in different
countries;
-The civil status is
governed universally by one single
principle, namely, that of
domicile, which is the criterion
established by law for the
purpose of determining civil status.
-It is on this basis that the
personal rights of the party [i.e. his
majority or minority, his
marriage, succession, testacy, or I
bintestacy, etc. ], must depend
RAMSEY v LIVERPOOL ROYAL INFIRMACY
[1930]
-In this case George Bowie was
domiciled in Scotlad
-Later he moved to England [Liverpool]
where he lived for the last 36 years
-During this 36 years, he never set
foot [went back in Scotland
-The court had to decide on the formal
validity of his will
HELD;
-House of Lords held that Bowie was
still domiciled in Scotland
at the date of his death
-By this holding, the court was able to
uphold the validity of his
will [testate]
-So that the nature of the issue before
the court influenced the
court's decision
-Had the court regarded the England
domicile, the will would
been invalid
[intestate]
b). LEX FORI & DOMICILE
-From the above case, domicile must be
decided based on lexfori
-Courts must apply their own rules to
determine domicile
Re ANNESLEY [1926] Ch 692
-It was HELD;
-That domicile must be classified
according to the law of the
forum
-An exception to this rule is;
a). Under the family law Act [1986] of
England, a foreign
divorce decree
is entitled to recognition on the basis that
one of the parties
is domiciled in the country where the
divorce was obtained
-For this domicile will either
mean the lexfori country or the
foreign country in
which divorce was obtained
b). Another exception is in the
person's capacity to acquire or
change
domicile in which case the existing domicile should
-Note that capacity is a
matter of status, which is governed by
person's existing
domiciliary law
-Domicil of origin
Every person shall be deemed to have
acquired, at the date of his birth—
(a) if he is born legitimate or deemed
to be legitimate, the domicile of his
father, or, if he is born posthumously,
the domicil which his father had
at the date of his death;
(b) if he is born illegitimate, the
domicile of his mother.
-Foundlings [Infants or small child
abandoned]
-An infant who is a foundling shall be
deemed to have
acquired domicile in the country
where he is found.
-Legitimation
An infant who is legitimated by the
marriage of his parents shall acquire the
domicil of his father at the date of
the legitimation.
-Adoption
An infant whose adoption has been
authorized by a court of competent
jurisdiction or recognized by a
declaratory decree of such a court shall, as from
the date of the order or decree,
acquire the domicil of the adopter or, where he is
adopted by two spouses, that of the
husband.
Upon marriage, woman shall, on
marriage, acquire the domicil of her husband.
-Domicil of choice
(1) Where a person, not being under any
disability, takes
up residence in a country
other than that of his domicil
with the intention
of making that country his permanent
home, or where,
being resident in a country other than
that of his
domicile, he decides to make that country his
permanent home, he shall,
as from the date of so taking
up residence or of such
decision, as the case may be,
acquire domicile in that
country and shall cease to have
his former domicile.
-A person may intend or decide to make
a country his
permanent home even
though he contemplates leaving it
should circumstances
change.
-An adult married woman shall not, by
reason of being
married, be incapable of
acquiring an independent
domicile of choice.
-The acquisition of a domicile of
choice by a married man
shall not, of itself, change the
domicile of his adult wife or
wives,
But, the fact that a wife is present
with
her husband in the country of his
domicile of choice at the
time when he acquires that domicile or
subsequently joins
him in that country shall raise a
rebuttable presumption that the wife has also acquired that domicile.
-Consequential change of domicile
-thedomicile of an infant shall
change—
-where the infant was born
legitimate or is deemed to be
legitimate orhas been
legitimated, with that of his father,
or if his father is dead, with that
of his mother; or
-where the infant is illegitimate, with
that of his mother:
-But where the custody of an infant has
been entrusted to
his mother by decree of a court of
competent jurisdiction,
his domicile shall not change with that
of his father but
shall change with that of his mother.
-The domicile of an infant female who
is married shall
change with that of her husband.
-The domicile of an infant, other than
a female who is
married, whose adoption has been
authorized by a court
of competent jurisdiction or
recognized by a declaratory
decree of such a court, shall
change with that of his
adopter or where he was adopted
by two spouses, that of
the husband, or, if the husband is
dead, that of the wife
-No person may have more than one
domicile at any time
and no person shall be deemed to
be without a domicile
-No person may lose domicile till he
acquires a new one
-A person may leave his/her country of
his domicile
with the intention of never
returning, he/she shall retain
such an existing domicile until
he acquires a new
domicile.
-Domicile of corporate entities [e.g.
companies] will be the
place considered to be the
centre of corporate affairs
-Where the corporate functions are
discharged i.e. the legal
home of the corporation
-At times regarded as the headquarters
of that legal entity , the
place where the corporate has its
official seat
-Its principal place of business
-Therefore a corporate entity is considered
a citizen of its
principal place of business
-Commercial domicile can therefore be
acquired by a non-resident corporate entity for purposes of conducting business
-For taxation purposes, domicile will
be the place of business whether permanent or temporary
-At times where such an entity does
business through a third
party
-But through an agent, branch or
franchise agreement
-In most states, if you are registered
as a corporation
within the state for even an hour, then
you are eligible to
be taxed with franchise tax. This
includes corporations,
both public and private, and limited
liability corporations
-Franchise tax is on any corporation
that conduct business
in a state. Each state has
different rules and regulations
for franchise taxes.
-At times a place such a corporation
does business in an
enemy state
-Read C. Lawrence, 'International Tax
& Estate Planning'
[1989] 8-9
C). THE PRESUMPTION IN FAVOUR OF
EXISTING DOMICILE
-We have already covered the principles;
Only one domicile at a time (1st), The application of LexFori in determining a
person's domicile (2nd)
-The 3rd principle is the presumption
that the existing
domicile lasts as long as no new
domicile is acquired
-Ramsey v Liverpool Royal [1930]
already discussed
above
-Where George Bowie's continuance of
Scottish domicile
was upheld despite being away in
Liverpool for 36 years
without ever going back to
Scotland
In WINANS v A.G. [1904] AC 287
FUDD'S ESTATE [1968]
3 All ER
-Where it was Held, that the burden of
proving a change of domicile lies on the person alleging the change
-But there is flexibility in the way
courts apply this presumptive rule
-From the above general discussion
& for the sake of academic pursuit, the following categories of domicile
emerge;
1. Domicile of Origin
2. Domicile of Dependence -
3. Domicile of Choice - WINANS V A.G.
CASE
4. [Issue-Based] Domicile - RAMSEY V
LIVERPOOL ROYAL
1.DOMICILE OF ORIGIN;
- Acquired at birth, conferred through
parentage or on
basis of the domicile of parents
RE MCKENZIE [1951] 51 SRNSW 293
-Where a child's domicile of origin was
Held to be of the
country where the child was found
just because the
mother's domicile was unknown
GEORGE UDNY v JOHN
HENRY UDNY [1869] [L. R.] 1 Sc.&Div. 441
-LORD WESTBURY:
-It is a settled principle that no man
shall be without a domicile;
-And to secure this end the law
attributes to every
individual as soon as he is born the
domicile of his
father if the child be legitimate, and
the domicile of
his mother if the child be
illegitimate.
-This is called the domicile of
origin and it is involuntary.
-It is the creation of the law – not of
the party.
-It may be extinguished by act of law,
as, for
example, by sentence of death or exile
for life,
but it cannot be destroyed by the will
and
act of the party.
-Legitimate child's domicile was held
to be that of
a father
-Two features [principles] of Domicile
of Origin
emerge;
1. That it is more difficult to lose a
domicile of origin than
any other form of
domicile
-'Domicile of origin, or as it is
sometimes called,
perhaps less accurately, “domicile of
birth,” differs
from domicile of choice mainly in this
– that its
character is more enduring, its hold stronger,
and
less easily shaken off'. LORD MACNAGHTEN
-RAMSEY V LIVERPOOL ROYAL [1930]
-36 years of absence from
Scotland did not invalidate
domicile of origin,
hence the will he made was held to
be valid
-WINANS V A.G. [1904] AC
287
-The onus of proving that a
domicile has been
chosen in substitution for
the domicile of origin
lies upon those who assert
that the domicile of
origin has been lost.
-The domicile of origin
continues unless a fixed
and settled intention of
abandoning the first
domicile and acquiring
another as the sole
domicile is clearly shown.
-In this case WILLIAM LOUIS
WINANS who was
born in the United States
in 1823 later moved to
England [1859]
-While in England, he lived in
various places until
his death in 1897.
-By his will he bequeathed an
annuity [payments
in installments] to a
relative
-The question in this appeal was
whether he was
at his death domiciled in
England.
HELD;
That despite 37 years of his life
in England, he did not lose his domicile of origin [we will
discuss this case again under Refugee/fugitive]
-Note that for a total of 47 years he
had not visited
his original country
IRC v BULLOCK [1976] 3
All
-In which a man who had lived in
England for 44
years was held to be domiciled at the
country of
Origin
BROWN v BROWN [1981] 3 FLR
212
-Despite the English law's rigid
approach, it was HELD;
-That a person lost his domicile of
origin in the
USA and acquired a new domicile
in England 14
years after leaving the USA
-Also note that 6 years of those he
spent working
in Italy
-JAFFEY p.168, the law reform has
adopted this
flexible approach, recommended
that there be no
special tenacity [persistent
determination] given
to domicile of origin
-Meaning there is no warrant for using
the words
'burden of proof'
2.That domicile of origin is never
lost, instead it is
held in abeyance
-It can be replaced but not
completely lost
''…like elephants who allegedly come
return
to their birth place to die, if a
person ceases
to have a permanent home, the most
appropriate personal law to allocate
him is
the law of his original native
home". JAFFEY
P.30
-TEE v TEE [1973] 3 All ER
1105
-In which the UK domicile of a man was
revived
despite having acquired a
domicile of choice in the
USA,
-And later went to work in Germany
-He had initially wanted to return to
the USA but
chose to make UK his permanent
home
-Upon filing divorce proceedings in the
UK it was
Held;
-That he had revived his domicile of
origin
MUNRO V. MUNRO(1840) 7 CL. & F.
876.
-Where Lord COTTENHAM observed
-That it was one of the principles
adopted, not only
by the law of England, but
generally by the laws
of other countries,
-“that the domicile of origin must
prevail until the
party has not only acquired
another, but has
manifested and carried into
execution an intention
of abandoning his former domicile
and acquiring
another as his sole domicile.
…"
-Residence alone, he added,
“has no effect per se, though it
may be most
important as a ground from which
to infer
intention.”
IN BELL V. KENNEDY 1868) L. R. 1
H. L., SC. 310.
-Lord Cairns stated that;
-“The law,” Lord Cairns
L.C. (2), “is beyond all
doubt clear with regard to the domicile
of birth that
the personal status indicated by that
term clings
and adheres to the subject of it until
an actual
change is made by which the personal
status of
another domicile is acquired.
-The onus of proving that a domicile
has been chosen in substitution for
the domicile of origin lies upon those
who assert
that the domicile of origin has been
lost.
2. DOMOCILE OF DEPENDANCE
-Mainly children
-married women
-Includes other incapacitated persons
e.g. mentally
handicapped/disorderly
-Legally conferred on dependant persons
RE BEAUMONT [1983] 3 CH 490
-Where a widow domiciled in Scotland
remarried
an English domiciliary thereby
acquiring an
English domicile of dependence
-She then moved to England with her new
husband
leaving behind [in Scotland] her
daughter
HELD:
-It was held that her daughter remained
Scottish
-That she had not exercised the power
to change her daughter's domicile
-This means that the mother still had
the discretion, which she had not exercised, to determine the new domicile for
the daughter
-Until 1974 [UK], married women
acquired the husband's domicile
-The enactment of The Domicile &
Matrimonial proceedings Act, women could now have their own domicile
-Mentally incapacitated people
-Not capable of forming the necessary
intention
-Cannot therefore choose domicile
-domiciled in the country where they
are
-Refugees/Fugitives
-A refugee refers to any person, owing
to well founded fear of persecution ……runs and seeks protection in a foreign
country
-Read section 3 of the Refugee Act
[Kenya]
-A person shall be a statutory refugee
for the purposes of
this Act if such person—
-(a) owing to a well-founded fear of
being persecuted;
-for reasons of race, religion, sex,
nationality, membership
of a particular social
group or
-political opinion is outside the
country of his nationality
and is unable, or is unwilling to
avail himself of the
protection of that country; or
-(b) not having a nationality and being
outside the country
of his former habitual residence,
is unable or, owing to a
well-founded fear of being
persecuted for any of the
aforesaid reasons is unwilling,
to return to it.
(2) A person shall be a prima facie refugee
for purposes of this Act if such
person owing to external aggression,
occupation, foreign domination or events
seriously disturbing public order in
any part or whole of his country of origin or nationality is compelled to leave
his place of habitual residence in order to seek
refuge in another place outside his
country of origin or nationality
-The above is a replica of the 1951
[UN] Convention Relating to the Status of Refugees (the
Refugee Convention) definition, a person who,
“owing to a well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the country of his
nationality, and is unable to or, owing to such fear, is unwilling to avail
himself of the protection of that country or return there because there is a
fear of persecution...”
-Section 4 of the Act [Kenya] excludes
those who have committed serious non-political crimes prior to their arrival
-Has been guilty of acts prohibited by
the community of nations [UN or African Union]
-In any case refugees are subject to
obligations & protection of the UNITED NATIONS HIGH
COMMISSION FOR REFUGEES[UNHCR] &THE CONVENTION RELATING TO THE STATUS
OF REFUGEES (CRSR],etc
-Note the sole
mandate of the Convention [formerly International Refugee Organization, 1947]
is to offer global protection of refugees, safeguard their rights and
well-being.
-Read also the
overlaps between Interntional Human Rights Law & International
Refugee Law
WINANS V A.G. AC
[1904]
-Regarding an the
American billionaire [born in 1823]
-WILLIAM LOUIS WINANS
who was
born in the United States in 1823
later moved to
England [1859]
-Domicile of
Origin Maryland
-He had a passion
of hatred for English & people of England
-Yet he also cared
for his health
-He regularly took
medicine
-In 1850, he
worked in Russia, working with the government
in the construction
of gun-boots to be used in the Crimean war [1853-1856]
-was a conflict in which Russia
lost to an alliance
of France, Britain, the Ottoman
Empire, and Sardinia. While
neutral, Austria
played a role in stopping the Russians.
The immediate issue involved the rights
of Christians in the
Holy Land, which was controlled by the
Ottoman Empire. The
French promoted the rights of
Catholics, while Russia promoted
those of the Orthodox. The longer-term
causes involved the
decline of the Ottoman Empire, and the
unwillingness of Britain
and France to allow Russia to gain
territory and power at
Ottoman expense. Russia lost and the
Ottomans gained a
twenty-year respite from Russian
pressure. The Christians were
granted a degree of official equality
and the Orthodox gained
control of the Christian churches in
dispute.[8]:415 Russia
survived, gained a new appreciation for
its religious diversity,
and launched a reform program with
far-reaching consequences]
-In 1859, Winan's
health broke down
-He was adviced by
his doctor to move to Britain [UK]
-While in Britain,
He held aloof from the English people
-Infact he
cordially disliked them [English people]
-From then, on he
spent all his time in England,
-He lived in a
furnished house/hostel
-He spent less and
less time elsewhere [apart from the hostel]
-He died in 1897
-Note that he
lived in England for 37 years of his life and never revisted the USA after his
departure in 1850
HELD by the house
of Lords:
"...When he
came to this country, he was a sojourner and a
stranger, and he
was (I think), a sojourner and a stranger in it
when he
died". Lord MacNaghten [also in Morris p.36]
He never lost his
domicile of origin
-Recognition
of refugees is based on:
-Lawful entry
-Wish to remain in
the host country
-Make his
intention known within prescribed time
-Read section 11
-Section 5 describes
circumstances under which the regugee stutus can cease:
-Voluntary
-Re-acquires his
nationality or other nationality
-Circumstances
become bearable in his habitual country
-Subject of
extradition [commits a non-political offence]
-Lost his nationality
yet refuses to return to the country of
habitual
residence
-Therefore refugee
status is temporary and for purposes of conflict of laws lacks the necessary
capacity to choose domicile
-Read more on;
-Evidence of
intention
-Intention and
actual residence
-Declaration of
intention
-Motive and
intention
-Intention (if)
freely formed
-But section18
[Kenya Refgee Act] prohibits forced return to a country of persecution
[Non-Refoulment]
-Non-refoulement,
a principle of international law which
forbids the rendering of a true
victim of persecution to their
persecutor.
-It is a key component of refugee
law, that concerns with the
protection of refugees from being
returned or expelled to places
where their lives or freedoms
could be threatened.
-It is different from political
asylum, which applies to those who
can prove a well-grounded fear of
political persecution.
-The motive
for leaving one's country may be bad or good but
what
matters is the requisite intention for doing so
-It has also
been argued that there must be residence feely
chosen and
not dictated by external necessity
-A fugitive, one
who leaves his country because of criminal liability i.e. running away from
criminal justice knows that upon arrest he be deported
-Read more on the
intrcacies surrounding Bishop Deya's deportation to Kenya fron Britain
-His domicile of
choice can be lost soon after actual departure [not when the order was issued]
RE MARTINS [1900],
p.41 of Morris
-In this case, a
French professor committefd a crime in France fled to England where he remained
for the next 20 years
-He later returned
to France two years a after the prescibed period had expired
HELD;
-By majority court
of appeal decision that 6 years after his arrival in England , he acquired
English domicile.
-Unless one is
allowed to change domicile even when circumstances have changed and host
countries legally approves it, the stay is ordinary and the habitual residence
or domicile of origin rvives or remains intact
UDNY v UDNY [1869]
-Where it was held
that a person who leaves his country to evade his creditors may lose a domocile
there, but ...
RE WRIGHTS TRUSTS
[1856] 2 K& J 595 - Morris p.41
-It was HELD, that
where a run away debtor intends to return
as soon as
the debts are paid or cancelled, then there is no change of domicile
MOYNIHAM
v MOYNIHAM [1970 1 FLR 59
-Where a person
fled England to avoid arrest on serious fraud charges
It wasHELD,
-That he acquired
a domicile of choice in the Philipines where he owned a parlour
-So that if a refugee/fugitive
has no intention of returning to his former country even when the situation
improves, then he may acquire a new domicile of choice
RE LlOYDS
EVANS [1947] 695 -morris p.41
-This was a case
where an English man had a domicile of choice in the Belgium but returned to
England very reluctantly in 1940 June because of the German invasion
He lived in a
furnished flat in England till he died in 1944
-But he had always
intended to return to Belgium after the war
HELD;
-That he had
retained his Belgian domocile
MAY v MAY
[1943] 2 All E.R. 146
persecution
by the Nazis.
-He originally
intended to emigrate to the United States,
-But his hope of
doing so was by the outbreak of war in 1939.
- In 1941, the
idea of going to the United States gradually faded
from his
mind.
- He declared that
he would never return to Germany even if t
the Nazis
were overthrown.
HELD: -
-It was held that
he had acquired an English domicile of choice
by the
beginning of 1942.
-Talk of
issue-based
DOMICILE ON
MEDICAL GROUNDS [INVALIDS]
-An invalid is One who is
incapacitated by a chronic illness or disability.
adj.
-Incapacitated by illness or injury
-No general rule, varies with the
judge, jurisdiction and
particularly on what is issue
-A person may move to another just
treatment and be back
-Another may go due to change of
climate/weather with the hope of going back
-Another may go so that he can stay in
the foreign country
for good/permanently
HOSKINS v MATHEW [1855] 8
D.M. & G.13
-In respect of a man suffering from
injury of the spine
-Where a man with English domicile of
Origin moved to Florence [Italy] at the age of 60
-He lived there for about 12 years
[except for 3/4 months]
-He left England with a sole hope that
his health would improve
-Note that in Florence/Italy, was
warmer
-It was also stated that he had
intended to return to
England if he recovered
HELD;
-That he had acquired a new domicile in
Italy because he was exercising a preference and not acting upon a
necessity
-Compare this with the WINANS CASE,
[Necessity]
.
-Read on domicile of foreign employees,
armed forces,
diplomats etc
-Read your notes on Habitual Residence
together
with Domicile to identify cases
which support
domicile of choice, and
'issue-based domicile etc
-
PUBLIC POLICY [CONFLICT OF LAWS]
-Courts retain an overriding power to
refuse to enforce or
recognize, rights acquired under
a foreign law on grounds
of public policy
-This closely linked to the mandatory
rule [already
discussed]
-The latter operates as a process while
the former is
based on the outcome that is contestable
-The nature and scope varies
A.G. of NEW ZEALAND v ORTIZ
[1984] AC 1
-In respect of protection of exported
artifacts
-Whether this is a matter of public
policy and if it must be protected
-Or should it be a case of forfeiture
to the state
-In this New Zealand case, the state's
claim ultimately failed because the forfeiture had not been completed by
seizure, as the law required before the articles had been exported
-The concern was about unlawful export
of artifact from New Zealand to Europe instead of forfeiting to the state
-The New Zealand government sought to
recover it in an action in England court relying on New Zealand statute
HELD;
-That an action in the UK courts must
fail because it intention was to impose a foreign penal
law
KUWAIT AIRWAYS CORP. v IRAQ AIRWAYS CO.
[2002] 2 AC.883 -Morris p.53
-This was a case on seizure by the Iraq
government [soon after the invasion of Kuwait in 1990s] of an aircraft
belonging to claimant company
-After the seizure the Iraq government
transferred it to the defendants
HELD;
'Exceptionally and rarely, that a
provision of a foreign law
will be disregarded when it would lead
to a result wholly alien to fundamental requirements of justice as administered
by English courts
-This character would not be acceptable
to an English court
-In the conventional phraseology, such
a result would be contrary to public policy.
-Then the court would decline to
enforce or recognize whatever the extent is in the circumstances"
-In the UK domestic law, it is
now settled that public policy would be invoked in clear circumstances in which
the harm to the public is substantially is not contestable
-It should never depend on a few
judicial minds
[i.e. Idiosyncratic]
LOUCKS v STANDARD OIL CO.
[1918] 224 NY
-In USA, it was HELD, "….the
courts are not free to refuse to enforce a foreign right at the pleasure of the
judges, to suit the individual notion of expediency or fairness"
-They do not close their doors unless
this would be contrary to some fundamental principles of justice, good morals,
etc.
-Courts have the residual power to be
exercised exceptionally and with greater circumspection, to disregard a
provision in a foreign law when to do otherwise would affront basic principles
of justice and fairness, which the courts seek to apply
-For example courts apply domestic law
on family proceedings involving divorce, maintenance, or etc.
-This exclusion is on public policy
grounds
-Yet even in contract, public policy
can debar incompatible contracts on public policy- read art.21 of Rome
Convention
DUARTE v BLACK & DECKER
CORP. [2007] EWHC 2720
-HELD;
That court would have refused to apply
a covenant in respect of trade had it been enforceable under the law governing
the contract
WOLF v OXHOLM [1817] 6M-
Morris. 56
-Courts would not give effect to the
results of any status existing under a foreign law which is
discriminatory/penal
e.g. status of slavery, civil deaths,
disabilities or incapacities imposed on priests, nuns, protestants, Jews, etc,
or persons of a certain ethnic group
WESTMINISTER SOCIAL & COMMUNITY
SERCVICES DEPT. v C [2008] 2 FCR 146
-C had very limited mental capacity
-His intellectual functioning was below
that of an average 3 years old
-His family made arrangements to marry
him an Islamic bride in Bangladesh in a ceremony conducted by telephone
-The marriage was valid under the law
of Bangladesh
-The UK court received evidence that
the marriage was potentially highly injurious to C and noted that
-Any sexual activity he was encouraged
to engage in would be criminal under English law
HELD;
-The marriage was refused recognition
on grounds of public policy, though marriage by proxy was not exactly illegal
-Marriage between persons of prohibited
consanguinity or incestuous intercourse can be disregarded on public policy
grounds
See case of MOHAMED v KNOTT
[1969] 1 QB 1- where such a marriage was recognized
HALMAN v JOHNSON [1775] 1 C 341
-Where it was stated that no country
takes notices of the Revenue laws of another country
GOVERNMENT OF INDIA v TAYLOR [1955] A
491
-Where it was stated that Tax gathering
is not a matter of contract, but of authority and administration, as between
the state and those within its jurisdiction.
-It is not enforceable
Any law requiring a non-contractual
payment of money to the state or some department falls under this category
-But this recognition and enforcement
[or lack of it was explained in the following case;
REGAZZORI v K.C. SETHIA LTD [1958] AC
301 AT 322
- Lord Simons HELD;
'..It does not follow from the fact
that today the court will not enforce a revenue law at the suit of a foreign
state, that today it will enforce a contract which requires the doing of an act
which violates the revenue laws of that country'.
The two things are not complementary.
ISLAMIC REPUBLIC OF IRAN v BARAKAT
GALLERIES [2007] EWCA CIV 1374
-Involved unlawful export of
antiquities [ancient artifacts found in other cultures] and conversion of the
same.
-Iran Republic claimed remedies in
conversion
HELD;
-The court of appeal held that the
goods were the property of the republic of IRAN under Iranian law
-That the government had acquired good
title to property just like a private individual under the laws of the country
and therefore the doctrine of LexSitus applied.
SOERERINTY & DIPLOMATIC
IMMUNITY-p.145 [Morris]
-Generally the possession of foreign
nationality may not bar a claimant or even a defendant in pursuing his/her
interest in court
-Under contract, we have also seen that
proceedings can be instituted in jurisdictions where the issue of litigation
has no connection to
-Under The Vienna Convention on
Diplomatic Relations of
1961 [an international treaty that defines a framework for
diplomatic relations between
independent countries].
-It specifies the privileges of a diplomatic
mission that enable
diplomats to perform their
function without fear of coercion or
harassment by the host country.
This forms the legal basis for
-Its articles are considered a cornerstone
of modern international
relations. As of June 2013, it
has been ratified by 189 states
-Also under the Privileges &
Immunities Act
-Certain classes of people cannot [as a
general rule]be sued
-Foreign states
-Foreign diplomats
-Certain International Organizations
FOREIGN STATES;
-At common law no state could be sued
in UK courts
-This was based on public international
law [article 2 of UN charter
-In the 19th century, most common law
states accorded absolute immunity for all activities whether government or
commercial
-But with the increase in trade,
particularly state trade in the 20th century, a number of states including the
USA developed a restrictive theory of immunity, separating;
-a). act of government i.e. acta jure imperii
-Acta jure imperii is a Latin term
meaning, acts by right of
dominion.
-This term is commonly used in conflict
of laws.
-Acta jure imperii are activities of a
governmental or public
nature carried out by a foreign
State or one of its organs.
Acta jure imperii also qualifies for
state immunity under the
modern doctrine of restrictive
foreign sovereign immunity.
-b). acts of commercial nature- acta
jure gestionis
-A Latin term meaning, acts by right of
management.
It is commonly used in private
international law.
-It refers to activities of a
commercial nature carried out by a
foreign State or one of its
organs or agencies.
-Under these category, states are not
immune from the
jurisdiction and process of local
courts under the modern
doctrine of restrictive foreign
sovereign immunity.
-States are treated as legal persons
who can sue and be sued
-In 1981the house of Lords [finally]
adopted the restrictive
theory
TRENTEX TRADING CORP. v CENTRAL BANK OF
NIGERIA [1977] QB 529
-The Central Bank of Nigeria was
incorporated in 1958,
modeled in the bank of England
-It’s the financial advisor to the
government of Nigeria, among other functions
-In 1975, it issued an irrevocable
letter of credit for over [$14,000,000] in favor of the plaintiff, a
Swiss company for the supply of bags of cement [240,000 tons], which the
plaintiff had sold to an English company
-The cement was to be used for the
construction of a military barracks, [government barracks]
-The cement was shipped, but due to
congestion [demurrage] at the port, the charges payable by the owner went up
-The defendant refused to pay
-The plaintiff commenced an action in
1975 against the central bank for breach and repudiation of the letter of
credit
-The government of Nigeria sought stay
of proceedings on grounds that the central bank was a government department and
therefore immune from the suit
HELD;
-On appeal, that the bank was creates
as a separate legal entity with no clear expression of intent that it should
have governmental status
-It was not an emanation arm of the
state of Nigeria and therefore not entitled to immunity from suit
.The boundaries between the two areas
is not a fixed one
HOLLAND v LAMPEN - WOLF [2002] 1WLR-
1573
-I n this case, a professor of
international relations [USA], was seconded to teach on a masters course
provided for the USA military personnel at a base in England
-It was alleged that an Educational
services officer at the base defamed in a written report
-The defendant [the educational
services officer pleaded state immunity arguing that he was acting as an
official an official of the United States in an official capacity
HELD;
-The house of Lords upheld the plea of
immunity , arguing that changing concepts and circumstances called for the
extension of the doctrine [restrictive theory], the state may reasonably claim
it should not be subject to interference by other states or the courts
-The State Immunity Act [1978],
Privileges & Immunities Act [Kenya], Section 57 of the Civil Procedure Act
[Kenya], etc
-Generally a State is not immune from
the following;
-a). Proceedings in respect of which
the state has submitted to the jurisdiction of the courts of the forum
-At common law immunity could be waived
if a state submits as such
-b). Proceedings relating to a
commercial transaction entered by the state
-Any loan or other transaction for the
provision of services
-Any other transaction - commercial,
industrial, financial, professional, or other character.
-c). Proceedings relating to an
obligation of the state …. which by virtue of a contract to be fully or wholly
in the country
-c). Proceedings on employment contract
between the state and a foreign individual and the contract is made in country
or is to be wholly/partly performed in
the country
-d). proceedings in respect of the
death or personal injury damage to or loss of tangible property, caused by an
act or omission of the host state
-e). proceedings on interest of the
state in or its possession or use of immoveable property in the country or any
obligation of the state arising there from …….[ p.150 Morris]
-f). proceedings relating to an
interest of the state in moveable or immoveable property by way of
succession, gift, or vacantia
-g). Proceedings relating to patents,
trademarks, copyright, and similar rights belonging to the state or to the
alleged infringement by the statein the country
-h). proceedings relating to the
state's membership of a corporation [even if unincorporated], partnership etc
incorporated in the country
-i). proceedings in enforcing a claim
in connection with a ship [vessel] belonging to the state, if at the time when
the cause of action arose, the ship was used for commercial purposes
THE PHILIPHINE ADMIRAL CASE [1977] AC
373
-Read
-On commercial purposes
-j). Proceedings relating to the
state's liability for value added tax, customs duty, rates in respect of
premises occupied by the state for commercial purposes
-IN KENYA,
-Section 57 of the Civil Procedure Act,
provides that;
-A foreign state may sue in any court
of Kenya, provided that state has been recognized by Kenya,
-and provided the object of the suit is
to enforce a private right vested in the head of that state or in any officer
of that state in his public capacity.
-Every court shall take judicial notice
of the fact that a foreign state has or has not been recognized by Kenya
- Also note that 'The Foreign Judgments
(Reciprocal Enforcement) Act'
-For the….. provision in Kenya for the
enforcement of judgments given in countries outside Kenya which accord
reciprocal treatment to judgments given in Kenya and for other purposes in
connection therewith
-Also the Government Contracts Act
[Kenya]
-Provides for the making of contracts
on behalf of the
Government and for matters
connected therewith
-Section 3 relates to contracts made
outside Kenya, ….any contract made for the Government outside Kenya by a person
either generally or specially authorized in writing in that behalf by the
Minister shall, so
far as the same comes within the
jurisdiction of the courts of Kenya, be deemed to be a contract made on behalf
of the Government
-Also read theGovernment Proceedings
Act
-An Act…..relating to the civil
liabilities and rights of the
Government and to civil
proceedings by and against the
Government
-Also refer to Public procurement
& Disposal Act, esp. on international contracts etc
CRITISIMS OF THE IMMUNITY PRINCIPLE;
-a). Offensive to the rights guaranteed
by articles of the 6 of the
European Constitution on human
rights i.e. Access to justice
-This is the equivalent of
article 48 [of the Kenyan Constitution 2010] i.e.
-The State shall ensure access to
justice for all persons and, ………. and shall not impede access
-It must be read together with other
articles and provisions of the
Constitution and other laws e.g.
-Article 35 [Kenya Constitution 2010]
on:
-Every citizen has the right
of access to—
-(a) information held by
the State; and
-(b) information held by
another person and required for
the exercise or protection of
any right or fundamental
freedom.
-(2) Every person has the right
to the correction or deletion of
untrue or misleading information
that affects the person.
-(3) The State shall publish and
publicize any important
information affecting the
nation Access to information
-b). Lacks consistence in application
-It varies from jurisdiction to
jurisdiction and depends on the
judges discretion .
-c). Depends on political goodwill, or
even interstate relations, yet the offended could a private citizen
-Look at sec.57 of the Civil Procedure
Act[as an example], that a foreign state may sue in Kenya as long as it has
reciprocal arrangement with Kenya
-Section 56 of is even more
restrictive, that an alien can only sue with leave from the executive
[President]
-Again, all these may be qualified by a
liberal interpretation of the Constitution, but this will vary from one judge
to the other and depending on the prevailing circumstances
[1]Id. 210.
NOTES BY F. KANYERU
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