Kenya Law Weekly Issue 037/22-23

Held:

1. Article 53(2) of the Constitution and sections 4(2) and 3(b) of the Children Act made the paramount consideration in any decisions concerning children must always be the best interests of the child.
2. The law under theConstitutionand theChildren Actsuccinctly sets out the parental responsibilities of each parent of a child.Section 23 of the Children Act defined parental responsibility as all the duties, rights, powers, responsibilities and authority which by law a parent of a child has concerning the child and the child’s property in a manner consistent with the evolving capacities of the child. Section 24 further apportioned parental responsibility by providing that where a child’s father and mother were married to each other at the time of his birth, they shall have parental responsibility for the child and neither the father nor the mother of the child shall have a superior right or claim against the other in exercise of such parental responsibility.
3. Legal custody referred to rights and responsibilities that were conferred on by a custody order. It was the right to make decisions relating to the welfare of the child. The rights included in legal custody were all the duties, rights, powers, responsibilities and authority which a parent had in relation to the child. Those included the responsibility to maintain a child and provide them food, shelter, medical care, education, clothing and duty to protect the child from neglect, discrimination and abuse.
4. Section 83 of the Children Act set out the following principles guiding the court in making a custody order. The court must consider:
   1. the conduct and wishes of the parent or guardian of the child.
   2. The ascertainable wishes of the relatives of the child.
   3. The ascertainable wishes of any foster parent, or any person who had actual custody of the child and under whom the child has made his/her home in the last 3 years before the application to the court.
   4. The ascertainable wishes of the child.
   5. Whether the child had suffered any harm, or was likely to suffer any harm if the order was not made,
   6. The customs of the community to which the child belonged.
   7. The religious persuasions of the child
   8. Whether a care order, or a supervision order, or a personal protection order, or an exclusion order had been made in relation to the child concerned and whether or not those orders remained in force.
   9. The circumstances of any sibling of the child concerned; and of any other children of the home, if any.
   10. The best interest of the child.
5. The High Court had inherent powers and discretion to make orders that take into account the best interest of the child. When it became necessary for the orders of the court to further the best interest of the children in the matter and to protect them, the court will not shy away from taking that extra mile to ensure that was achieved.
6. The minors made it clear that they did not know the appellant and that they had never met him. They noted that they were seeing the appellant for the first time in court and that the only father they knew was the respondent. The respondent alluded to the fact that the appellant might be the father of both minors but it was clear that he was the one whom they knew and who according to the minors, took care of them, lived with them and were comfortable with them.
7. It was imperative for the court to caution itself on the importance of the best interests of the child and the fact that the same overrides the issues to do with the paternity of the minors. The court in reaching a determination should consider the feelings and wishes of a child but must take into account the age of the child and the degree of maturity as stipulated in section 4(4) of the Children Act which provided that in any matters of procedure affecting a child, the child shall be accorded an opportunity to express his opinion, and that opinion shall be taken into account as may be appropriate taking into account the child’s age and the degree of maturity.
8. At the time of their examination, the minors, ZA and JC, were 14 years and 9 years respectively and they made it clear that they only wanted to live with their father, the respondent. ZA told the court that he did not know the appellant, that the appellant had never visited her or sent her any pocket money and that her home was in Nandi. JC on the other hand, identified the respondent as the father and noted that he only wanted to live with him and did not want to go with the appellant. Such reasoning from the children especially the eldest one indicated that she was mature enough to sway the court’s opinion on custody and the child’s best interest absent of any exceptional circumstances. Likewise, for the younger child aged nine years, gave the same request.
9. The minors had begun to develop coping skills and were adapting to the loss of their mother. They should be provided with a secure base which should include their close caregivers, their father, the respondent, teachers and classmates, in the situation of the 9-year-old. That should not be tampered with for the next couple of years to prevent interference with the process of emotionally digesting the trauma. The secure base would give the minors a secure footing to deepen their relationship with the respondent who had been with them frequently and also provided a better opportunity for the development of a relationship unlike the appellant, whom they did not know. Their relationship with the appellant was non-existent compared to the relationship they had with the respondent. The best interest of the children was paramount and must be given due consideration. It would not be appropriate to uproot the children from their present abode. The respondent merited to have physical custody of the minors in the circumstances while the parties could have joint legal custody.
10. Parental responsibility was premised on article 53(e) of theConstitution which accorded all children the right to parental care and protection which included equal responsibility of the mother and father whether married or not. At the time of the demise of E, she was still married to the appellant herein and the appellant adduced evidence in the form of a marriage certificate and birth certificates for the two minors. That simply meant that the late E was not yet divorced from the appellant and that made it his parental responsibility to care for the children.
11. The respondent, although he did not provide evidence of his capability to take care of the minors, he was very much willing to do the same as was the norm even before the demise of their mother. The ability to provide a better life to a child in a material sense did not give one priority over another since the children’s psychological growth and happiness were not based on material provisions alone. Nonetheless, financial provision was equally an important consideration in a child’s upbringing.
12. Both parties testified to the fact that they were both capable of taking care of the minors. It had not been demonstrated that the appellant could not financially support, maintain, and provide for the minors. The extended family nearby would also help with the minors’ psychological growth and happiness. However, what transpired from the evidence of the minors was that they viewed the appellant as a stranger to them as he did not live with them. The minors had gotten accustomed to the respondent whom they had known to be their father. It would be a travesty and an injustice to uproot the minors from the place they had known to be their home and be forced to go and live with the appellant. The appellant must accept the fact that it would take time for the minors to be psychologically prepared and become accustomed to the appellant in the fullness of time.
13. The appellant was their father but that alone should not be a ground to uproot the minors from their circumstances. It was proper to have the minors remain with the respondent. The appellant and the respondent shall ensure the upkeep of the minors equally.

Appeal partly allowed.
Orders

1. The respondent shall have physical custody of the minors ZA and JC.
2. The legal custody of the minors ZA and JC was awarded to both the appellant and the respondent. Maintenance was to be provided by both parties as follows:
   1. the respondent shall provide housing, food and other incidentals as may be necessary;
   2. both parties shall share the payment of school fees and school-related expenses equally;
   3. the appellant shall provide medical cover.
3. The appellant shall have supervised day access to the children within Nairobi from 10.00 am, pick-up time, to 4.00 pm, drop-off time, two days a week Saturdays and Sundays during school terms and any day of the week during holidays as may be agreed upon between the appellant and the respondent until the children familiarized themselves with him. Any travel of the minors to the appellant’s home county had to be with the notification and permission of the respondent.
4. Any travel of the minors to the appellant’s home county was not permitted for now. The order could be reviewed when the circumstances changed.
5. The appellant was also cautioned that he should not make surprise visits to pick up the children but should communicate his visit in advance to the respondent.
6. Each party was to bear their own costs.

Held:

1. The Supreme Court should not down its tools as a result of the 1st appellant’s introduction at the Court of Appeal. The Court of Appeal had to consider the evidence before it. Such issues expressly referring to 1st appellant would not have been framed by the appellate court had they not emanated from theEnvironment and Land Court (ELC), the said issues were determined by the Court of Appeal and were before the Supreme Court.
2. The instant appeal emanated from a consolidated appeal before the Court of Appeal that resulted in one judgment involving other parties in the present matter whose standing is not in issue. The matter having been consolidated before the Supreme Court, the issues raised were cross cutting and were not affected by the standing of 1st appellant alone. The Supreme Court had jurisdiction to hear and determine the consolidated appeal. 1st respondent’s preliminary objection failed.
3. There were competing claims as to the ownership of the suit parcels. Therefore, it behoved a court to make a just determination on the same, procedurally. In doing so, it had to, on the basis of the law and evidence before it, decide who the owner was and thoroughly interrogate how such ownership was conferred. In the instant case a trial process involving examination, cross-examination and re- examination of the witnesses was the only way of resolving the competing allegations and counter allegations.
4. The superior courts below relied on rule 20(1)(a) of theConstitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (Mutunga Rules)to hear the matter by way of affidavit evidence. A court was required to make a special endeavour to unravel all the competing claims and in particular, by calling forviva voceevidence from witnesses, especially those who had sworn depositions, and cross-examination done. That was particularly important because its decision would have a far-reaching impact especially upon the party(ies) whose ownership may end up being nullified. The Supreme Court was fortified by rules 20 (3), (4), and (5) of theMutunga Rules which allowed a court to admit oral evidence, examine and cross-examine parties.
5. It was not prudent and judicious, considering the highly contentious nature of the claims and circumstances of each of the numerous parties involved to determine the instant matter by affidavit evidence only. The authors of the said affidavits ought to have been called and cross-examined to test the veracity of the affidavits and documentary evidence. That would have presented the best available evidence for the High Court to make its decision fairly.
6. The administrators of the estate of Mark Too were right in asserting that the appellate court adjudged him guilty of fraud without affording him a hearing. However, fraud which, depending on the circumstances was recognized as a criminal offence, must be pleaded and strictly proved. In addition, although the standard of proof of fraud in civil matters was not proof beyond reasonable doubt, it was higher than proof on a balance of probabilities as required in other civil claims.
7. The vague particulars of fraud were not proved to the required standard going by the absence of any serious attempt to table concrete evidence to prove the subject allegations to the required degree. Fraud and conspiracy to defraud were very serious allegations. The onus of prima face proof was much heavier on the appellant in this case than in an ordinary civil case. There was simply no credible evidence to prove such a serious allegation which may also attract criminal sanction. The Court of Appeal fell into error when it varied theELC’s judgment to the extent that it found the late Mark Too guilty of fraud.
8. The principle of legitimate expectation imposed a duty to act fairly and to honour reasonable expectation raised by the conduct of a public authority. If a public body had raised expectations that it would in future undertake a certain course of action, then it should ordinarily fulfil those expectations. That was important for the promotion of certainty and consistency in public administration.
9. For an individual to invoke the principle of legitimate expectation, an expectation must have been induced by some conduct of the public authority. The principle extended to any individual who was in a situation in which it appeared that the administration’s conduct had led him to entertain certain expectations.
10. The principle protected only those expectations which had arisen through the conduct of the administrative body concerned, and not those which had arisen as a result of an individual’s subjective hopes. It was concerned with upholding trust in the administration rather than protecting expectations that the individual had decided to entertain at his or her own risk. Only reasonable expectations would be afforded protection by the law. An individual must hold an expectation which was reasonable to have in light of the prevailing circumstances.Not just any promise would do; the promise must be one giving rise to a legitimate expectation. Certain requirements must also be met for a promise to generate a legitimate expectation.
11. As at the date of 1st respondent’s application and on October 28, 1998, when former President Moi endorsed the subject application with the words ‘Approved’, the suit parcels were registered as private property in the name of Lonrho Agribusiness. The evidence on record further showed that up to the year 2000, when the titles for the suit parcels were surrendered, they had at all times been held as private property. The position that the suit parcels were private property up to the year 2000 was acknowledged by the Government when it compulsorily acquired certain portions thereof for the development and construction of public utilities including the Eldoret International Airport and Moi University School of Law Annex in the year 2000. The suit parcels, being private properties at the material time, could only be alienated or transferred by the registered owner, Lonrho Agribusiness, rather than by the President under theGovernment Lands Act (repealed).
12. Under section 3 of the Government Lands Act (repealed)the President’s power to make grants or disposition in land was restricted to unalienated government land. Section 2 defined unalienated government land to mean Government land which was not for the time being leased to any other person, or in respect of which the Commissioner had not issued any letter of allotment.
13. Once an individual or entity acquired any unalienated government land, or other land for that matter, consequent upon registration of title, in accordance with the provisions of the applicable law, such land transmuted from public to private land. Such land was as a consequence, removed from the ambit and confines of theGovernment Lands Act (repealed) to the new legal regime conferring title to an entity other than the government and on such terms as shall be inscribed on the new title. The subject suit parcels, being land that was at the time private property vested in Lonrho Agribusiness did not fall within the category of unalienated government land envisaged under theGovernment Lands Act (repealed)and the former President had no legal capacity and authority to allocate or confer any legitimate interest in the subject suit parcels to members of 1st respondent or any other entity.
14. The application by 1st respondent for allocation of the suit parcels was made to the 4threspondent, the Director of Land Adjudication, who did not have the capacity or mandate to allocate government land, if any. Only the 2ndrespondent, the Commissioner of Lands, had the mandate to allocate government land.
15. There was no legitimate expectation for 1st respondent’s members to be allocated the suit parcels. In determining whether legitimate expectation had been established, primacy must always be given to the requirement of legality which flowed from the constitutional principle and value of the rule of law, as articulated in article 10(2)(a) of theConstitution. Legality dictated that an action could only be undertaken if it was authorized by the law. A representation, promise, practice, conduct or an action outside the prescription of the law or undertaken by a person or entity without competent authority was illegal and could not give rise to legitimate expectation.
16. A squatter was a person who settled on property without any legal claim or title. The 1st respondent defined itself as an amalgamation of over 500 squatter families that had a legitimate claim and interest over the suit parcels. The 1st respondent’s members were not in occupation of any of the suit parcels or the sub-divisions thereof. No member of 1st respondent ever took actual physical possession of the suit parcels. They had never occupied it. The failure to take possession and occupy the land means that 1st respondent were not squatters on the suit parcels.
17. The 1st respondent’s claim was based on heritage from their forefathers who became dispossessed of their land by the colonialists and subsequently became workers. That evidence could not support the claim by 1st respondent that they were squatters in the absence of occupation of the suit land.
18. The allegations of lineage (where no evidence was adduced) was a complex web. In the absence of evidence to show who was the child of whom, the court could not determine who exactly should be compensated and by whom. The record showed there were many proprietors as the suit parcels changed ownership severally.
19. The 1st respondent contended that upon the forceful eviction of its members’ forefathers from the suit parcels in the 1920s, the said forefathers and their lineage worked on the suit parcels as farm hands. By then the parcels had since been adjudicated and titles issued. However, the 1st respondent did not answer whose workers were they, whether the farm owner own the land in question, whether workers could turn around and invoke the right to their place of work as squatters and if so, whether they could do so over 70 years later. The 1st respondent did not state should shoulder the responsibility of compensating the claim, and neither did they note if was it a form of reparations to be paid on behalf of the colonialists. Members of 1st respondent were not squatters on the suit parcels and had no legal basis to bring a claim asserting a right to the suit parcels.
20. The consensual nature of a surrender was the cardinal ingredient of a surrender of lease. That was the essence of the proviso in section 44 of Registration of Titles Act (repealed) that proved that the endorsement shall be signed by the lessee and the lessor as evidence of the acceptance thereof.
21. Section 97(1) of the Evidence Act provided that when the terms of a contract, or of a grant, or of any other disposition of property, had been reduced to the form of a document, and in all cases in which any matter was required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence was admissible under the provisions of the Evidence Act.
22. The import of section 97(1) of the Evidence Act was that the extrinsic evidence generally excluded: where the intention of parties had been reduced to writing it was in general not permissible to adduce extrinsic evidence whether oral or contained in writing such as instructions, drafts, articles, conditions of sale or preliminary agreements either to show that intention or to contradict, vary or add to the terms of the document. Extrinsic evidence could not be received in order to prove the object with which a document was executed or that the intention of the parties was other than that appearing on the face of the document.
23. The intent or the consensual agreement between Lonrho Agribusiness and the Government of Kenya was for the conversion of the suit titles from leasehold under Registration of Titles Act (repealed) to freehold under the Registration of Land Act (repealed). The ELC and the Court of Appeal should have considered the deposition of R J Simiyu as corroborated by presentation 174 in determining the intent for the surrender. The letter from J P Hulme should not have overridden the credible testimony by R J Simiyu in the face of presentation 174 given the provisions of section 97(1) of the Evidence Act.
24. There was insufficient evidence to support the claim that Lonrho Agribusiness intended to surrender the suit properties for the allocation to 1st respondent. That was a serious question that the two superior courts below did not address their minds to. A company as a distinct legal entity from its promoters, directors or employees could only act through its organs and make decisions by resolutions. No resolution of the company’s board supporting the purported purpose for the surrender was presented in evidence.
25. The intent of surrender of the leasehold interest in the suit parcels was that the leasehold term to which the suit parcels were then held was to be surrendered and the same converted into a freehold interest with titles re-issued in the name of Lonrho Agribusiness as private property. There was nothing illegal or fraudulent in a process for surrender of a lease to enable the conversion of a title from a leasehold interest under the Registration of Titles Act (repealed) to a freehold interest under the Registered Land Act (repealed).
26. Upon the execution of the surrender instruments by both Lonrho Agribusiness and the Government of Kenya, the leasehold interest was extinguished and emerged in the freehold interest in terms of section 44 of the Registered Land Act (repealed). A surrender was the yielding up of the term of lease to the person who had the immediate estate in reversion in order that, by mutual agreement, the term may merge in the reversion. Merger was the converse of surrender. A surrender occurred where the landlord acquired the lease; merger occurs where the tenant acquired the reversion. The underlying principle was the same in both; the lease was absorbed by the reversion and destroyed.
27. The doctrine of merger as codified in section 44 of theRegistered Land Act (repealed)envisaged that as all inferior estates and interests in land were derived out of the fee simple, therefore, whenever a particular estate or limited interest in land vested in him who had the fee-simple of the same land, such particular estate or limited interest was immediately drowned in the fee. That was the essence of the principleomne majus continent in se minus, meaning the greater contains or embraces the less. Therefore, there was nothing untoward in Lonrho Agribusiness getting a freehold title in reversion under the RLA.
28. Upon the said surrender and merger, a new registration section was created which were registered in the name of Lonrho Agribusiness. Those were subsequently sub-divided and sold to third parties. It followed that the subsequent sub-divisions and sale thereof to third parties, including 1st appellant, by Lonrho Agribusiness were done legally and procedurally.
29. The impugned judgment of the Court of Appeal violated their right to property. The Supreme Court disagreed with the findings of theELCand the Court of Appeal and made a finding that the purpose of surrender of the titles of the suit properties was to enable their conversion from leasehold titles under theRegistration of Titles Act (repealed)to freehold titles under theRegistered Land Act (repealed).
30. The financial institutions which were a party to the instant cause were not purchasers but lenders. They could not possibly be described as innocent purchasers. They were financial institutions who advanced substantial sums of money to some of those parties who purchased the properties excised from the suit parcels from the registered owners on the security of their titles.

Appeal allowed.
Orders: -

1. The consolidated appeal met the constitutional threshold under article 163(4)(a) of the Constitution.
2. The superior courts below violated the appellants’ right to fair hearing under article 50(1) of the Constitution.
3. The proceedings at the trial court ought to have been conducted through taking of viva voce evidence.
4. The 1strespondent did not have a legitimate expectation to acquire and be allocated the suit parcels.
5. The 1strespondent had no right to the suit parcels as its members were not squatters on the suit parcels.
6. The intent for the surrender of the titles for the suit parcels was for conversion of their titles from leasehold interests under the Registration of Titles Act (repealed) to freehold interests under the Registered Land Act (repealed).