Rono v Rono (2005) AHRLR 107 (KeCA 2005)
Mary Rono v Jane and William Rono
Court of Appeal at Eldoret, civil appeal 66 of 2002, 29 April 2005
Judges: Waki, Omolo, O’Kubasu
Division of land in the estate of a polygamous man
International law (application, 21-24)
Equality, non-discrimination (discrimination on the grounds of sex, 28, 29)
Judgment of Waki JA
Background
[1.]
This is a succession matter relating to the estate of Stephen Rono
Rongoei Cherono who died intestate on 15 July 1988 at the age of 64. He was a farmer in Vasin Gishu. At the time of his death he left a sizeable number of properties, both moveable and immoveable. He was also survived by two wives and nine children (six daughters and three sons). In
Probate and Administration Cause 40/88, the High Court in Eldoret
granted Letters of Administration to the two widows and the eldest son
without objection from other members of the family. Disputes however soon arose about the distribution of the assets and liabilities of the estate and viva voce evidence was recorded for determination of the distribution by the court. Ultimately on 12 June 1997, Nambuye J delivered her judgment (dated 5 May 1997) determining the distribution. The
second widow however, together with her children, was dissatisfied with
that judgment and so preferred an appeal to this Court.
Undisputed facts
[2.] From the record and findings of the superior court, the following facts are common ground:
1. The deceased had two wives Jane Toroitich Rono (hereafter ‘Jane’) the first widow and Mary Toroitich Ronel (hereafter ‘Mary’) the second widow.
2. The
deceased had three sons and two daughters with Jane: William Malakwen
Rono (William), Samwel Bet Rono, John Toroitich Rono, Mary Kpisiro
(Chebii) Rono, Lina Chepkemoi Rono.
3. Mary
Kipriso (Chebii) Rono, the eldest daughter, aged 42 years at the time
of hearing in 1994, was married but divorced her husband and returned
home with 4 children of the marriage.
4. Lina
Rrono, the second born daughter aged 40 in 1994, was unmarried but
staying in a loose cohabitation with a man and had two children.
5. The
deceased had four daughters with Mary: Rose Cheriuyot Rono (Rose),
Cherotich Rono, Grace Rono, Joan Jepkemboi (Kipkemoi) Rono.
6. Rose aged 32 years in 1994 was married under custom (though no dowry was paid) and had four children.
7. Cherotich aged 30 in 1994 was unmarried with no children.
8. Grace aged 29 in 1994 was unmarried but a single parent of one child.
9. Joan Jepkemobi aged 20 years in 1994 was unmarried with no child.
10. The following assets were left unencumbered and available for distribution:
(a) Land
· 192 acres of freehold land LR NO. 9249 comprising approximately 303 acres
· Farm house on LR. NO. 9249
· ¾ of an acre of undeveloped commercial plot No. 117, Iten township
(b) Vehicles and machinery
· M/V reg no KTX 951, Toyota Hilux
· Ford Tractor reg no KLV 349
· Posho mill complete with a lister engine, water tank, mill and five stores.
· Fodder chopper
· Maize sheller
· Tractor plough
(c) Household furniture and effects
4
beds, 2 wardrobes, bookshelf, 2 dining tables and 6 dining chairs, 1
coffee table and 4 chairs, 1 sofa set, 4 stools, coffee table in the
shape of map of Africa, 2 chest of drawers, 3 pressure lamps, 2
hurricane lamps, sewing table, typewriter, record player, wall clock,
mild separator, fixed washing basins, 2 lamp stands, water tank boiler,
milk cans, 1 National radio, wall safe.
11. The following liabilities were left unsettled by the deceased:
· Hospital bill Kshs 220,884.50
· AFC loan Kshs 31,366.70
· Iten Country Council rates Kshs 5,518.00
· Wareng County Council rates Kshs 5,518.10
· Income Tax Kshs 103,760.00
· Settlement Fund Trustees Loan (unknown)
12. The deceased belonged to the Keiyo sub-tribe of the Kalenjin community.
13. The deceased lived with his two wives and children in one farmhouse and treated all of them equally.
The dispute
[3.] The dispute was highlighted in the viva voce
evidence of Wiliam, supported by Jane, representing the first house,
and by Rose, supported by Mary, representing the second house.
[4.]
Both houses were agreed on the distribution relating to the Iten
township plot, the Toyota vehicle, the tractor and its implements, the
posho mill together with water tank and stores, the fodder-chopper and
all the household furniture and effects except six items of minor
significance. The major bone of contention related to the distribution of the 192 acres of land, and the liabilities of the estate.
[5.]
The proposal put forward by the first house in respect of the land was
that the first house would share 108 acres; 22 acres going to the three
sons and 14 acres each, to Jane and her two daughters. The second house would share 70 acres; all five of them, including Mary, getting 14 acres each. The remaining 14 acres would comprise: 11
acres for a market where each member of the family would be entitled to
1 acre; 2 acres for a communal cattle dip, and 1 acre for the farmhouse
where all members of the family were entitled to reside.
[6.]
The rationale for giving a bigger share to the first house and to the
male children was because the land was bought and improvements were
made, before the second house came into existence, and because the girls
of the family had an option of getting married and leaving the home. At all events, according to Keiyo traditions, girls have no right to inheritance of their father’s estate.
[7.]
The second house saw plain discrimination in that proposal and proposed
a 50/50 share of the land, each house receiving 96 acres and deciding
what to do with it. Nothing would be set aside for
communal use except a cattle dip and the farmhouse which would be
occupied by all but remain as part of the half share for each house. There
was no evidence, they contended that the first house worked harder on
the land than the second house and in any event the deceased treated and
educated them all equally without discriminating between boys and girls
in his lifetime. He had even given one of the sons of the first house (Samwel) to the second house where there were no sons.
[8.]
As for liabilities, the first house proposed that they settle the Aga
khan Hospital bill in the sum of Shs 264,525 while the second house
settles the other bills relating to AFC, income tax, lands office and
county councils, all totalling Shs 203,271.95. That would be in the ratio 60:40. On the other hand, the second house proposed an equal liability payment of all debts at the ratio of 50:50.
The High Court decision
[9.]
In arriving at what it called ‘its own independent distribution’, the
superior court considered both customary and statutory laws on
succession. It made a finding that the deceased was Marakwet, although the evidence was that he was Keiyo. The Elgeyo sub-tribe (also referred to as ‘Keiyo’) are listed in the same chapter as the ‘Marakwet’ and the ‘Tugen’ in Cotran’s Restatement of African Law
(vol 2), which the superior court referred to for the proposition that
the pattern of inheritance was patrilineal, and that in polygamous
households distribution was by reference to the house of each wife
irrespective of the number of children in it. Daughters receive no share of inheritance. The
superior court also referred to the Law of Succession Act sections 27,
28, 40(1) and (2) relating to distribution to dependents and division to
houses according to the number of units, adding the widow as an
additional unit. In the end, the learned Judge took
into consideration the wishes of the parties and of written law that the
girls should also inherit. But she found that the
possibility of the girls getting married and inheriting further property
from their new families would give them an unfair advantage over the
other family members. She held:
The situation prevailing here is rather peculiar though not uncommon in that one house has sons while another has only daughters. Statute law recognizes both sexes to be legible [eligible] for inheritance. I also note that it is on record that the deceased treated his children equally. It follows that all the daughters will get equal shares and all the sons will get equal shares. However, due to the fact that daughters have an option to marry the daughters will not get equal shares to boys. As for the widows if they were to get equal shares then the second widow will be disadvantaged as she does not have sons. Her share should be slightly more than that of the first widow whose sons will have bigger shares than daughters of the second house.
[10.] The distribution of the land thus ended up as follows:
(a) Widows
Jane Rono
- 20 acres
Mary Rono
- 50 acres
---------------------
Total
70 acres
(b) Daughters
Lina Rono
- 5 acres
Mary Chebii
- 5 acres
Cherutich Rono
- 5 acres
Grace Rono
- 5 acres
Chepkemboi Rono - 5 acres
Rose Rono
- 5 acres
-------------------
Total
- 30 acres
(c) Sons
William Rono
- 30 acres
Samuel Rono
- 30 acres
John Rono
- 30 acres
--------------
Total
- 92 acres (sic)
--------------
The liabilities were distributed as follows:
(i) First house
(a) Hospital bill
Kshs 110,442.25
(b) AFC Loan
Kshs 15,683.35
(c) Iten County Council Kshs 2,889.00
(d) Wareng County Council Kshs 1,759.05
(e) Income Tax Kshs 51,880.00
-------------------------
Total
Kshs 182,653.65
(ii) Second house
(a) Hospital bill
Kshs 110,442.25
(b) AFC Loan
Kshs 15,683.35
(c) Iten County Council Kshs 2,889.00
(d) Wareng Country Council Kshs 1,759.05
(e) Income Tax
Kshs 51,880.00
----------------------
Total
Kshs 182,653.65
[11.]
The other orders made by the superior court are contained in the decree
issued on 21 March 2002 and are not challenged save for the omission to
provide that ½ share of plot 117, Iten township would go to the second
widow, Mary Rono, which omission is conceded in this appeal.
The appeal and submissions of council
[12.]
The decree of the superior court was challenged by Mary on 11 grounds
but it is unnecessary to reproduce them since one ground was abandoned
and the rest were condensed into three and were ably argued as such by
learned counsel for the appellant, Mr P Gicheru.
[13.] The main ground was that the superior court erred in taking into consideration the Marakwet
Customary law or any customary law, since the estate that fell for
consideration was governed by the Law of Succession Act, Cap 160 Laws of
Kenya. Section 3(2) of that Act defines ‘child’ without any discrimination on account of sex. The Constitution of Kenya also in section 82 outlaws discrimination on grounds, inter alia,
of sex. Mr Gicheru thus submitted that section 40 of the Succession Act
should have been applied in which case all the children and the widows
would have been considered as units, entitling them to equal
distribution of the land. It was erroneous therefore
to entertain the consideration that the girls would have unfair
advantage due to the possibility of their future marriage. On
the evidence the girls in both houses were advanced in age in 1994 and
were still unmarried or divorced 10 years late when this appeal was
argued. The speculation that they would marry had therefore no basis. As
there was no special inquiry made to determine whether any of the heirs
deserved more land than the others, there was no basis for
discrimination against the girls. It did not matter, he submitted, that the appellant received 50 acres, which is 30 acres more than her co-widow. Such
distribution would still be contrary to the law and the purpose of the
appeal was to enforce compliance with the law of succession.
[14.]
For his part, learned counsel for the respondents, Mr PKK Birech,
submitted on this issue that the superior court judge had a discretion
to distribute the estate and she cannot be faulted. She considered and discarded the application of customary law. She then applied sections 27, 28 and 40 of the Succession Act. He
conceded that the Act catered for all children including unmarried
daughters but referred to section 33 of the Act which exempts the
application of the Act to agricultural land and livestock and subjects
distribution of such property on intestacy to the law or custom
applicable to the deceased’s community or tribe. The
superior court was justified therefore in considering customary law and
giving only nominal acreage of the land to the girls.
[15.]
The second ground of appeal, which was readily conceded, was that there
was no mention in the judgment or decree about the remaining half share
of plot 117 of Iten township after the superior court distributed one
half of it to the first widow, Jane. It was submitted and accepted, that the remaining half share should go to the appellant, Mary.
[16.]
Finally on the third ground of appeal on distribution of liabilities Mr
Girechu submitted that it was inequitable for the learned judge, having
dished out a large portion of the immovable property to the first
house, to order payment of the sizeable liabilities on equal basis. The distribution of the liabilities should be proportionate to the distribution of assets. For
his part, Mr Birech saw nothing wrong with ordering the girls to pay up
the liabilities since they had shared in the assets of the estate.
The law
[17.]
The manner in which courts apply the law in this country is spelt out
in section 3 of the Judicature Act, Chapter 8, Laws of Kenya. The
application of African customary laws takes pride of place in section
3(2) but it is circumscribed thus: ‘… so far as it is applicable and is
not repugnant to justice and morality or inconsistent with any written
law…’
[18.]
The Constitution, which takes hierarchical primacy in the mode of
exercise of jurisdiction, outlaws any law that is discriminatory in
itself or in effect. That is section 82(1). In section 82(3), it defines discrimination as follows:
affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connection, political opinions, colour, creed, or sex, whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.
That provision has not always been the same with regard to discrimination on grounds of sex. ‘[O]r sex’ was inserted in a relatively recent constitutional amendment by Act 9 of 1997. In the same section, however, the protection is taken away by provisions in section 82(4) which allow discriminatory laws, thus:
Subsection (1) shall not apply to any law so far as the law makes provision -
…
(b) with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law;
(c)
for the application in the case of members of a particular race or
tribe of customary law with respect to any matter to the exclusion of
any law with respect to that matter which is applicable in the case of
other persons; or
(d)
whereby persons of a description mentioned in subsection (3) may be
subjected to a disability or restriction or may be accorded a privilege
or advantage which, having regard to its nature and to special
circumstances pertaining to those persons or to persons for any other
such description, is reasonably justifiable in a democratic society.
[19.] Is international law relevant for consideration in this matter? As
a member of the international community, Kenya subscribes to
international customary laws and has ratified various international
covenants and treaties. In particular, it subscribes
to the international Bill of Rights, which is the Universal Declaration
of Human rights (1948) and two international human rights covenants: the
Covenant on Economic, Social and Cultural rights and the Covenant on
Civil and Political Rights (both adopted by the UN General Assembly in
[1966]). In 1984 it also ratified, without
reservations, the Convention on the Elimination of All Forms of
Discrimination Against Women, in short, ‘CEDAW’. Article 1 thereof defines discrimination against women as
any distinction, exclusion or restriction made on the basis of sex
which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women irrespective of their
marital status, on a basis of equality of men and women, of human rights
and fundamental freedoms in the political, economic, social, cultural,
civil or any other field.
[20.]
In the African context, Kenya subscribes to the African Charter of
Human and Peoples’ Rights, otherwise known as the Banjul Charter (1981),
which it ratified in 1992 without reservations. In article 18, the Charter enjoins member states, inter alia:
‘ensure the elimination of every discrimination against women and also
ensure the protection of the rights of the woman and the child as
stipulated in international declarations and conventions’.
[21.]
It is in the context of those international laws that the 1997
amendment to section 82 of the constitution becomes understandable. The country was moving in tandem with emerging global culture, particularly on gender issues. There
has of course, for a long time, been raging debates in our
jurisprudence about the application of international laws within our
domestic context. Of the two theories on when
international law should apply, Kenya subscribes to the common law view
that international law is only part of domestic law where it has been
specifically incorporated. In civil law
jurisdictions, the adoption theory is that international law is
automatically part of domestic law except where it is in conflict with
domestic law. However, the current thinking on the
common law theory is that both international customary law and treaty
law can be applied by state courts where there is no conflict with
existing state law, even in the absence of implementing legislation. Principle 7 of the Bangalore Principles on the Domestic Application of International Human Rights Norms states:
It is within the proper nature of the judicial process and
well-established judicial functions for national courts to have regard
to international obligations which a country undertakes – whether or not
they have been incorporated into domestic law – for the purpose of
removing ambiguity or uncertainty from national constitutions,
legislation or common law.
[22.]
That principle, amongst others, has been reaffirmed, amplified,
reinforced and confirmed in various other international fora as
reflecting the universality of human rights inherent in men and women. In Longwe v. International Hotels 1993 (4 LRC 221), Justice Musumali stated:
… ratification of such (instruments) by [a] nation state without reservations is a clear testimony of the willingness by the state to be bound by the provisions of such (instruments). Since there is that willingness, if an issue comes before this court which would not be covered by local legislation but would be covered by such international (instrument), I would take judicial notice of that treaty convention in my resolution of the dispute.
[23.]
A clear pointer to the currency of that thinking in this country is in
the draft Constitution where it is proposed that the Laws of Kenya
comprise, amongst others: ‘Customary international law and international
agreements applicable to Kenya’.
[24.]
I have gone at some length into international law provisions to
underscore the view I take in this matter that the central issue
relating to discrimination which this appeal raises, cannot be fully
addressed by reference to domestic legislation alone. The relevant international laws which Kenya has ratified, will also inform my decision.
Conclusion
[25.]
The deceased in this matter died in 1988 while the Succession Act which
was enacted in 1972, became operational by Legal Notice 93/81,
published on 23 June 1981. I must therefore hold, as the Act so directs, that the estate of the deceased falls for consideration under the Act. Section 2(1) provides:
Except
as otherwise expressly provided in the Act or any other written law,
the provisions of this Act shall constitute the law of Kenya in respect
of, and shall have universal application to, all cases of intestate or
testamentary succession to the estates of decreased persons dying after
the commencement of this Act and to the administration of estates of
those persons.
[26.]
The application of customary law, whether Marakwet, Keiyo or otherwise,
is expressly excluded unless the Act itself makes provision for it. The
Act indeed does so in sections 32 and 33 in respect of agricultural
land and crops thereon or livestock where the law or custom applicable
to the deceased’s community or tribe should apply. But the application of the law or custom is only limited to ‘such areas as the Minister may by Notice in the Gazette specify’. By
Legal Notice 94/81, made on 23 June 1981, the Minister specified the
various districts in which those provisions are not applicable. The list does not include Uasin Gishu district within which the deceased was domiciled. So that, the law applicable in the distribution of the agricultural land in issue in this matter is also written law. Does the Act provide for the manner of distribution? Partly, yes.
[27.]
The superior court was of the view that section 27 of the Act donates
unfettered discretion to the court in the sharing of the estate
considering the definition of ‘dependant’ in section 29 to include the
‘wife and the children of the deceased’. It is in
exercise of that discretion that the learned Judge disregarded
consideration of the sharing proposed by the parties altogether and made
her ‘own independent distribution’. It was also
pursuant to that discretion that she based her decision to allocate
minimal shares to the daughters on the basis that they would get
married.
[28.]
While I do not doubt the discretion donated by the Act in matters where
dependents seek a fair distribution of the deceased’s net estate, I
think the discretion, like all discretions exercised by courts, must be
made judicially or to put it another way, on sound legal and factual
basis. The possibility that girls in any particular
family may be married is only one factor among others that may be
considered in exercising the court’s discretion. It
is not a determining factor. In this particular case however, I find no
firm factual basis for making a finding that the daughters would be
married. As shown by the undisputed facts above, all except one were unmarried or divorced in 1994 and were advanced in age. Eleven years later when this appeal was heard, there was no evidence that the situation had changed. It
is also an undisputed fact that the deceased treated all his children
equally and never discriminated between them on account of sex. It
is a factor in my view that was not sufficiently considered although it
resonates with the noble notions enunciated in our Constitution and
international laws. The respondents themselves
clearly recognised and honoured the wishes of the deceased when they
proposed to give 14 acres of the land to each daughter of the deceased. I find no justification for the superior court whittling that proposal down to 5 acres to each daughter. More
importantly, section 40 of the Act which applies to the estate makes
provision for distribution of the net estate to the ‘houses according to
the number of children in each house, but also adding any wife
surviving the deceased as an addition unit to the number of children’. A
‘house’ in a polygamous setting is defined in section 3 of the Act as a
‘family unit comprising a wife … and the children of that wife’. There is no discrimination of such children on account of their sex.
[29.]
I think, in the circumstances of this case there is considerable force
in the argument by Mr Gicheru that the estate of the deceased ought to
have been distributed more equitably taking into account all relevant
factors and the available legal provisions. I now
take all that into account, and come to the conclusion that the
distribution of the land, which is the issue falling for determination,
must be set aside and substituted with an order that the net estate of
192 acres of land be shared out as follows:
(a) Two
acres for the farm-house now common occupied by all members of the
family to be held in trust by the joint administrators of the estate;
(b) Thirty acres to the first widow, Jane Toroitich Rono;
(c) Thirty acres to the second widow, Mary Toroitich Rono;
(d) Fourteen decimal four four (14.44) acres to each of the nine (9) children of the deceased.
[30.]
As for the liabilities, they should in reality have been paid off by
the estate as a whole before distribution of the net intestate estate. The
superior court however found it fit to distribute the liabilities
equally between the two houses, and the only challenge on appeal was
that the distribution of the land should have been similarly treated. As
I have inferred with the distribution of the land, I find no other
basis for disturbing the order made by the superior courting respect of
liabilities.
[31.] In the result, I would allow the appeal to the extent stated above. A fresh decree would issue accordingly. As this is a family matter, each party shall bear its own costs.
Judgment of Omolo JA
[32.]
I had the advantage of reading in draft form the judgment prepared by
Waki JA and while I broadly agree with that judgment, I nevertheless
wish to point out that I do not understand the learned Judge to be
laying down any principle of law that the Law of Succession Act Cap 160
of the Laws of Kenya, lays down as a requirement that heirs of a
deceased person must inherit equal portions of the estate where such a
deceased dies intestate and that a judge has no discretion but to apply
the principle of equality as was submitted before us by Mr Gicheru. I can find no such provision in the Act. Section 40(1) of the Act provides that:
Where
an intestate has married more than once under any system of law
permitting polygamy, his personal and household effects and the residue
of the net intestate estate shall, in the first instance, be divided
among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.
[33.]
My understanding of that section is that while the net intestate estate
is to be distributed according to houses, each house being treated as a
unit, yet the Judge doing the distribution still has a discretion to
take into account or consider the number of children in each house. If
Parliament had intended that there must be equality between houses,
there would have been no need to provide in the section that the number
of children in each house be taken into account.
[34.] Nor do I see any provision in the act that each child must receive the same or equal portion. That
would clearly work an injustice particularly in case of a young child
who is still to be maintained, educated and generally seen through life. If
such a child, whether a girl or a boy, were to get an equal inheritance
with another who is already working and for whom no school fees and
things like that were to be provided, such equality would work an
injustice and for my part, I am satisfied the Act does not provide for
that kind of equality.
[35.]
What I understand Waki JA to be saying is that in the circumstances of
this particular case, there was no reasonable factual basis for drawing a
distinction between the sons on the one hand and the daughters on the
other hand. Subject to what I have said herein, I agree with the judgment of Waki JA and the orders proposed by him. Those orders shall be the orders of the Court.
Judgment of O’Kubasu JA
[36.] Subject to what Omolo JA says in his judgment I agree with the judgment of Waki JA and the orders proposed by him.
No comments:
Post a Comment