Kenya Law Weekly Issue 012/24-25

Held:

1. An applicant seeking to be enjoined as amicus curiae had to satisfy the court that he or she had satisfied the legal requirements for such an application. In that context, rule 19 of the Supreme Court Rules, 2020 provided that, before admitting a person as a friend of the court, the court had to consider;
   1. the proven expertise of the person;
   2. independence and impartiality of the person; or
   3. the public interest involved.
2. The role of an amicus curiae in any proceedings was to aid a court in arriving at a legal, pragmatic and legitimate decision, anchored on the tenets of judicial duty. The guiding principles for admission of an amicus curiae were:
   1. An amicus brief should be limited to legal arguments.
   2. The relationship between amicus curiae, the principal parties and the principal arguments in an appeal, and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law.
   3. An amicus brief ought to be made timeously, and presented within reasonable time. Dilatory filing of such briefs tended to compromise their essence as well as the terms of the Constitution’s call for resolution of disputes without undue delay. The court may therefore, and on a case- by- case basis, reject amicus briefs that did not comply with that principle.
   4. An amicus brief should address point(s) of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law.
3. The applicant had, with the necessary precision, set out germane points of law that he intended to address the court on and they resonated with the issues in dispute in the consolidated appeal. The amicus brief would be of valuable assistance to the court in addressing the issues raised in the consolidated appeal and the applicant had demonstrated expertise in the field of comparative constitutional law which was relevant to the appeal. None of the parties to the appeal had raised any issue of bias in the intended brief and there was none on the court’s part and should any arise, the court was quite capable of identifying and rejecting it made its final decision on the appeal.

Application allowed.

Orders

1. The amicus brief attached to the application was deemed as filed and the applicant shall not make oral submissions at the hearing of the petitions.
2. No orders as to costs.

Held:

1. Order 42 rules 2 of the Civil Procedure Rules provided that where no certified copy of the decree or order appealed against was filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such a time as the court may order. The court need not consider whether to reject the appeal summarily under section 79B until a copy was filed. A decree was defined under section 2 of the Civil Procedure Act as the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determined the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final; it included the striking out of a plaint and the determination of any question within section 34 or section 91 but did not include any adjudication from which an appeal lay as an appeal from an order; or any order of dismissal for default; provided that, for the purposes of appeal, decree included judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up.
2. The proviso to section 2 of the civil procedure Act was to the effect that for purposes of appeal a copy of the judgment was as good as a decree. Order 42 rule 2 was by way of subsidiary legislation, which in no way could override the provisions of the statute. A decree was “a narrowed – down” definition of a judgment. The purpose of a decree was to inform the appellate court of what the trial court decided, in the matter under appeal. The judgment did that, and more. It was unnecessary and drastic to strike out an appeal on the basis of lack of a document, whose contents or import was ascertainable from another document, available on record. There was no prejudice occasioned to the respondent by failure to file the decree. Striking out the appeal would simply be to punish the appellant for her indolence, and nothing more. That was not to downplay the place of procedural law, but where procedure got in the way of substantive justice and only did so for the sake of it, then procedure must give way.
3. In Kenya, to resolve burial disputes, the courts had variously resorted to customary law, common law, marriage law, succession law, human rights law, land law and other areas of personal law. Customary law was applied by dint of section 3(2) of the Judicature Act. The Constitution under article 11 recognized culture as the foundation of the Nation and as the cumulative civilization of the Kenyan people and Nation.
4. Burial disputes had traditionally been governed by customary law. However, it was not enough to plead custom, it must be proved. Customary law, unlike statute or case law, was treated as a fact rather than a law. It was not codified or was in written form. It had to be established through evidence. It was absolutely necessary that experts versed in the customs be summoned to testify so as to assist the court reach a fair verdict since the court itself was not well versed in those customs and traditions. There was no evidence of an expert in Luhya customary law.
5. The expertise of the two witnesses was not established. A detailed account of their expertise in Luhya customs ought to have been laid before they could be presented to court as expert witnesses. Custom could not be assumed.
6. PW3 told the court he was 92 years old but he was never led in evidence to establish his expertise in Luhya customary law of burials. The age of a person was not necessarily a reflection of his expertise in the customs and practices of his people. The expertise of PW4 was not also established before giving evidence. The requirement that a Luhya man must be buried in his ancestral land was proved.
7. Nevertheless, whether the deceased had left instructions on where to be buried and whether the will can allow for one to decide his burial place, there could be no property in a dead body. A person could not dispose of his body at will. After death the custody and possession of the body belonged to the executors until it was buried. If the deceased had left directions as to the disposal of his body, though these were not legally binding on his personal representative, effect should be given to his wishes as far as that was possible, the duty of disposing the body fell primarily on the executor.
8. There was no indication of when the wishes were expressed, for the court to determine whether the said declarations met the criteria of an oral will. The appellant tabled sufficient evidence, that proved the deceased’s wishes on the preferred place of Burial.
9. The doctrine of legal proximity was based on the assumption that the decision as to the determination of the place of burial was based upon proof by the parties in the dispute of their proximity to the deceased. The right to bury a dead body could only be conferred to the person who was able to demonstrate the closest proximity to the deceased.
10. In the social context prevailing in Kenya, the person, who was in the first line of duty in relation to the burial of any deceased person, was the one who was closest to the deceased in legal terms. Generally, the marital union would be found to be the focus of the closest chain of relationships touching on the deceased. It was only natural that the one who could prove that fundamental proximity in law to the deceased, had the colour of right of burial, ahead of any other claimant.
11. The wife was the closest in proximity to the husband, and therefore had the right to bury the deceased husband. The fact that both parties were the wives of the deceased was not contested and therefore one could argue that in terms of legal proximity, both parties herein qualified as the most approximate people.
12. Customary law was dynamic. It was not codified. Its application was left to the good sense of the courts that were called upon to apply it. There was ample evidence showing that at least for the last 8 years of his life, the deceased spent his time mostly with his second wife, the appellant. The fact that she was the one who took care of him during his last days in hospital was not rebutted. The respondent’s own son testified about the fact that the respondent never visited the deceased in hospital and that testimony was not contested.
13. The relationship of the deceased and the respondent was quite strained. Some feuds related to land made the deceased leave kabras and made his abode in Kitale. The respondent and the deceased had a land related dispute that was, at some point, going on in courts. The relationship was far from being cordial. Compared to the appellant, the respondent could not claim to have been the person at close proximity to the deceased at the time of his demise. The doctrine of legal proximity favoured the appellant.

Appeal allowed. The Judgment of the trial court was set aside and substituted with an order dismissing the plaintiff’s suit, with costs.