Kenya Law Weekly Issue 039/22-23

Held:

1. The issues in contention in the suit, and the purpose for which the respondents moved the trial court for the injunctive relief sought and granted in the impugned ruling, were intended to forestall the 1st appellant’s exercise of its statutory power of sale over the suit properties based on the alleged tenancy relationship with the 3rd respondent. The issues in contention between the respondents and the appellants were not matters relating to the environment, the use and occupation, and the title to land as contemplated in article 162 of the Constitution, section 13 of the Environment & Land Court Act, and section 150 of the Land Act. Such matters could only be subject to litigation between the 1st and 2nd respondents as lessees, and the 3rd respondent as lessor.
The Environment and Land Court only had jurisdiction to deal with disputes connected to “use” of land and contracts incidental to the “use” of land, which did not include mortgages, charges, collection of dues and rents which fell within the civil jurisdiction of the High Court. Moreover, a charge was a disposition that had no direct contractual relation to “use” (by a tenant or licensee) as in the instant case, of a chargor’s land. The trial court had no jurisdiction to entertain the respondents’ suit as pleaded. The validity of the 1st and 2nd respondents’ claims was entirely dependent on the nature of their interest in the suit properties. In principle, the 1st and 2nd respondents had no contractual or other legal right of claim under the charge on the basis of which the 1st appellant moved to realise its security. They did not have locus standi by virtue of section 96(3) of the Land Act, 2012 which recognized the right of the chargors’ spouses who consented to the creation of a charge to question the exercise of the chargee’s power of sale. Neither did the two have any right or interest recognised under section 24 of the Land Registration Act, 2012. Indeed, they did not fall in any of the categories of persons entitled to seek relief under section 103(1) and (2) of the Land Act, 2012. The fact that a consenting spouse had a stake in the charged property with the right to be served with the notice of the chargee’s exercise of its statutory power of sale, and to challenge the exercise of such powers in appropriate cases, did not of itself avail similar rights to tenants or licensees who were not privy to, or have any stake in, the charge. In any event, once the 1st appellant issued its statutory notice of sale to the 3rd respondent, it was under no statutory or other legal obligation thereafter to issue such notice to any third party claiming under a tenancy or other contractual relationship with the 3rd respondent to which the charge was not subject. Only the chargor could legitimately seek relief against the exercise by the charge of its power of sale. A debtor who had partly secured a loan by a charge against a third party’s property could not seek to restrain or challenge the chargee’s exercise of the statutory power of sale for want of proprietary interest in the charged property. That restricted locus was expanded vide section 103(1) of the Land Act, 2012 to include other persons who may seek relief against a chargee. However, the Land Laws (Amendment) Act, No. 28 of 2016 deleted section 103(1) (d), which had provided that lessees of the chargors were also entitled to seek relief. Statutory notices were only issued once at the point of default, and the chargee was not required to repeat or reissue the notice once it was issued and served upon the chargor, the only party with locus standi to apply for injunction to restrain the Bank from exercising its statutory power of sale. The 1st and 2nd respondents were not the first or the only ones to resist the 1st appellant’s move to realise its security. Others claiming under the same title had gone before them albeit unsuccessfully over the same subject matter and cause of action in the High Court, the ELC, and on appeal to the Court of Appeal. The multiple proceedings instituted by individuals and corporate entities not party to the charge over the suit properties to which only the 1st appellant and the 3rd respondent were privy demonstrated the spirited albeit unmerited attempts by third parties to obstruct the 1st appellant’s rightful exercise of its statutory power of sale. The multiplicity of suits, the motions for injunctive relief, and the ensuing appeals determined in favour of the 1st appellant demonstrated that the issues in contention in the respondents’ suit were res judicata, having been determined with finality on their merits by courts of competent jurisdiction, over the same subject matter, and the same cause of action. It matters not that the 1st and 2nd respondents were not party to the suits. The fact that those suits and Motions raised issues similar to those in contention between the appellants and the respondents in the instant case, and over the same subject matter, and on the same cause of action, rendered them res judicata. The impugned ruling was rendered in the face of the instant Court’s decision in Bank of Africa Limited vs. Juja Coffee Exporters Limited & 4 others [2018] eKLR; Juja Coffee Exporters Limited & 2 Others vs. Bank of Africa Limited & Another, Mombasa Civil Appeal No. 158 of 2018 (UR); the High Court decision in Osman Tahir Sheikh Said & 2 Others vs. Bank of Africa Limited, Mombasa HCC No. 86 of 2019 (UR); and the ELC decision in the case of Tahir Sheikh Investments Limited vs. Bank of Africa Limited [2020] eKLR, by which the matters in contention had been determined with finality. Yet, those were the very decisions which the impugned ruling purported to reverse. The High Court had no power to overrule the Court of Appeal; it had no jurisdiction to flout the first principles of stare decisis; and the High Court must in the end follow the decisions of the Court of Appeal, unless they could be distinguished from the case under review on some other principles. The issues raised in the suit and the Motion in issue were res judicata.

Appeal allowed.

Held:

1. Burial disputes were emotive. The Court of appeal was called upon to balance the clashing interests of parties who should ordinarily be involved in the burial in one way or another. Unlike many other civil disputes, burial issues concern people who were close to the deceased in one way or the other. Consequently, the Court desired to find some sense of legal and constitutional harmony by overcoming the dichotomies that seemed to make burial dispute jurisprudence disarrayed.
In burial disputes, the constitution could only be considered a living constitution if it also considered the customs that communities regard as crucial in death rites, but only to the extent that the death rites also promote constitutionalism. In the same breath, customary practices would only be considered progressive customs if they promoted the burial wishes of the deceased that did not flout constitutional order. Under the common law, a corpse did not constitute property. Therefore, the wishes of a deceased could be disregarded if they were contrary to the constitution or the customary practices of the particular community. The deceased wishes were subsidiary to the other considerations because no one would be harmed by the failure to enforce such wishes. Burial disputes have been complicated by the ‘no property’ rule, which prohibited individuals from leaving binding burial instructions. Since there was no property in a body, any person could claim to have the right to perform the burial rites. In addition, Kenya’s legal system did not have a hierarchy of identifying who had the most legitimate interest in a burial dispute. The courts discerned the interests of the parties from their legal proximity. The religious and cultural practices of a deceased was an important factor in burial disputes concerns. Article 11 of the Constitution recognized culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. Further, article 32 of the Constitution provided that every person had the right to freedom of conscience, religion, thought, belief, and opinion. The cultural and religious practices of the various communities and people in Kenya were therefore to be promoted if they were consonant with constitutional principles. In instances where the customs and religious practices formed part and parcel of the factual basis of a burial dispute, the same ought to be considered to the extent that they were not contrary to the constitution and other laws. However, they did not automatically attain a higher place than the burial right of the person with the most proximate legal and familial bonds with the deceased. The interest of the nuclear family ought to be respected. The Court of Appeal disapproved of customary edicts that superseded the natural and paramount unit of society, safeguarded under article 45 of the Constitution. Without family, there would not be customs and social norms. The constitution embodied the family as the natural and fundamental unit of society and the necessary basis of social order. However, a court could consider exceptions where a deceased was a known cultural leader in a community and his figure extended past the family to a communal group. That was one of the reasons the Constitution acknowledged culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. There were men and women who went before us whom by their way of life on earth were as important to family as they were to their cultural groups. The Constitution recognized that customary law was applicable in instances where one or more of the persons was subject to or affected by it. However, the customary law should not be repugnant to justice, morality, or any written law. A person who wished to rely on a custom had to adduce evidence to show how the parties were affected and its applicability. The deceased was to be buried following the Gusii customary law. The people of Gusii were buried where they set up their homestead. It need not be their paternal homestead but where they had built a home. Furthermore, it was conducted in the place where the deceased spent a considerable amount of time during his lifetime. Thus, contrary to the appellant’s lamentations, the High Court did not rely on extraneous matters when it explicitly demonstrated the exodus of the people of Gusii moving away from Kisii and Nyamira. That analysis was corroborated by the evidence of DW1, DW2 and DW3 who testified that the members of the Gusii community had indeed moved, settled and were buried in several parts of the county. From the evidence, the deceased built a home in Kamulu which was the matrimonial home and another in Kisii. Both houses were constructed with two doors. Critically, the uncontroverted evidence of PW2 disclosed that the deceased’s house in Kisii was in a bad state and as such had no intention of living in that house. Similarly, it was also established that the house in Kamulu was the deceased’s matrimonial home where his relatives visited for celebratory events with the deceased before his death. The High Court had not erred in ordering that the deceased be buried in Kamulu. The judgment of the High Court was sound. The learned judge allowed appellants the right to participate in the burial and perform the rituals under the Gusii customary law. Whereas the appellants may understandably be aggrieved and emotionally drained, the law was not on their side.
2. (Obiter) “It was important for judicial officers to inculcate therapeutic jurisprudence in determining burial disputes. The central insight of therapeutic jurisprudence was the realisation that the law itself could function as a therapeutic or anti-therapeutic agent. Legal rules, legal procedures and the roles of legal actors constituted social forces that may impact on the psychological well-being of those caught up by it. Burial disputes were emotive and whatever the outcome, some would be left in tears. The words and phrases employed in the resolution of the dispute should be sensitive to the mental and physical health of the parties involved in the burial dispute. The faction of the law considered humanness as a crucial ingredient in the crucible of justice and therefore it ought to be factored in the process of judgment-making. Nevertheless, that did not involve shelving away the tenets of due process and adherence to judicial impartiality nor did it mean the substitution of therapy with sound judicial reasoning.”

Appeals dismissed.

Orders

1. Judgment of the High Court and the order that the remains of the deceased be buried on the parcel of land No.Block 12/221, Mavoko Town, was upheld.
2. The body of the deceased shall be released to Zipporah Masese Ondieki, the respondent.
3. The appellants were at liberty to attend burial and perform the Gusii customary rites.
4. Each party ought to bear their costs. The costs of the mortuary shall be shared between the two parties as ordered by the High Court