Introduction
1. The petition dated 17th October 2023 is supported by the petitioner’s affidavit in support.
2. The petition challenges the constitutionality of Section 29 (c) of the Law of Succession Act which requires a husband to a deceased wife to prove dependency on his wife prior to her demise to be considered a beneficiary of the estate of his late wife. The Petitioner argues that this condition is a violation of Article 27 of the Constitution because it does not apply on the wife in case the departed is the husband.
3. The petitioner thus seeks the following reliefs against the respondent:
a) A declaration be issued that in so far as Section 29 (c) of the Law of Succession Act places preconditions on widowers to prove dependency on their late wives as a condition to be deemed as dependents worthy of benefiting from succession, it infringes on the petitioner’s constitutional guarantee of equality before the law and matrimonial equality as guaranteed under Articles 27 & 45(3) of the Constitution.
b) A declaration be issued that Section 29 (c) of the Law of Succession Act is unconstitutional, null and void to the extent that it places preconditions on widowers to prove dependence on their late wives as a condition to be deemed as dependents worthy of benefiting from succession.
c) A mandatory injunction be y issued directing the respondent to take the necessary measures & steps to ensure the requisite legislative reforms are enacted to amend and/ or repeal the Law of Succession Act to purge the above provisions of the Act in order to bring conformity of the Act with the Constitution.
d) Costs of this petition be provided with interests at the Court's rate.
e) Any other order that this court deems fit and just in the circumstances.
Petitioner’s Case
4. The petitioner deponed that he was the husband of the late Caroline Wawira Njagi. Their marriage was contracted under the Kiembu Customary Law in April 2002.
5. They were blessed with two children I.M. aged 14 years and C.M. aged 13 years.
6. They later on separated in 2022 but they maintained a cordial relationship and jointly took care of their two children.
7. Unfortunately, Caroline Wawira passed away on 24th July 2023.
8. The deceased’s partner began the burial preparation without involving the Petitioner. The said partner planned to bury the deceased in Meru notwithstanding the deceased had during her lifetime requested the petitioner to burry her at their matrimonial home in Njakairi Village, Gaturi South, Embu.
9. The petitioner was disturbed as it meant that together that with their children, they could not attend the funeral or visit the deceased’s grave site or pay homage as such arrangement might be opposed by the deceased’s partner. The Petitioner accordingly filed a suit at Mavoko Law Courts where he obtained orders allowing him to bury the deceased wife being her legitimate husband.
10. He assails the provisions of Section 29 (c) of the Law of Succession Act for being prejudicial to his interests as the husband as it requires him to prove that he was a dependent of his late wife prior to her death to be considered a beneficiary yet there is no corresponding a similar requirement for wives when their husbands die. Consequently, he contends that Section 29 (c) of the Law of Succession is discriminatory against husbands in that regard and is therefore unconstitutional.
11. Further, he points out that the Act which was enacted in 1981 and ought to be aligned to the current Constitution.
Respondent’s Case
12. The respondent in rejoinder to the petition filed grounds of opposition dated 28th May 2024 on the basis that:
i. The respondent has been wrongfully joined in this petition. The respondent has no mandate in enacting and amending legislation. Moreover, repealing a law does not fall in the purview of the functions of the Attorney General and that a petition to sue him as a party when it comes to challenging the constitutionality of a legislative authority is misconceived.
ii. In as much as the petition alleges that section 29(c) of the Law of Succession Act is unconstitutional, the source of the instant dispute relates to the administration of the estate of the deceased, one Caroline Wawira Njagi, which puts the dispute squarely in the purview of the Family Division of the High Court.
iii. The disposition of the instant petition will require an interrogation into the nature of petitioner’s relationship with the deceased, which jurisdictions can be duly exercised by the Family Division of the High Court.
iv. The petitioner has failed to state with precision and demonstrate how the alleged rights were infringed by the Respondent as required in law as the holding in Anarita Karimi Njeru v Republic (1979) KLR 1.
v. There is a general presumption that every Act of Parliament is constitutional and the burden of proof lies on everyone who alleges otherwise.
vi. The power to make laws including amendment thereof lie with Parliament under Article 109(1) of the Constitution that “Parliament shall exercise its legislative power through Bills passed by Parliament and assented to by the President.”
vii. The role of the respondent is defined in Article 156 (1) (4) of the Constitution and, as “the principal legal adviser to the government” is limited in legislative matters. It would be wrong to require the Attorney-General to take steps and report on progress towards enactment or amendment of law a process he has little control over and there is no basis for compelling the Attorney General to ensure legislation is enacted as was held in Ripples International v Attorney General & another; FIDA (Interested Party) (Constitutional Petition E017 of 2021) [2022] KEHC 13210 (KLR).
viii. Every person is empowered by Article 119(1) of the Constitution to petition Parliament to enact, amend or repeal any legislation. There is an established statutory procedure to ventilate the issues brought out in the petition.
ix. The petitioner has totally failed to tender sufficient evidence necessary to substantiate their allegations of infringement of their constitutional rights by the respondent.
x. The petition is otherwise incompetent, misconceived, frivolous, misinterprets the application of Customary Law and an abuse of the court process as the petitioner’s rights and the orders sought therein are untenable and it ought to be dismissed with costs to the petitioner.
Petitioner’s Submissions
13. The petitioner through Wambui Shadrack and Associate Advocates filed submissions dated 28th May 2024. Counsel submitted that Section 29 (c) of the Law of Succession Act defines a dependent to among others as:
‘Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death’.
14. Counsel submitted that this provision requires a husband to prove that he was being maintained by his wife prior to her death yet the same precondition is not placed on the wife where the deceased is the husband. Counsel contended that this differentiation is discriminatory and denies husbands equal benefit of the law as envisaged under Article 27 of the Constitution.
15. Reliance was placed in Andrews v Law Society of British Columbia [1989] 1 SCR 143 where the Supreme Court of Canada held that:
“Discrimination is a distinction which, whether intentional or not (is) based on grounds relating to personal characteristics of the individual or group, (and) has effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.”
16. Like dependence was placed in Rose Wangui Mambo & 2 others vs. Limuru County Club & 17 others (2014) eKLR.
17. Consequently, Counsel stressed that this provision perpetrates an unconstitutional differentiation which is archaic and with no legal justification. Considering this, Counsel urged the Court to adopt an interpretation that includes husbands or former husbands as beneficiaries, whether or not they were being provided by their wives.
Respondent’s Submissions
18. On 10th July 2024, State Counsel, Jackline Kiramana filed submissions for the respondent.
19. Counsel submitted that the issue raised herein relates to intestate succession which is a preserve of the Family Court, a division of the High Court which is competent to hear and determine the questions raised in this matter. As a result, Counsel argued that the petition violates the principle of constitutional avoidance.
20. Reliance was placed in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR where the Supreme Court held that:
“[105]. We shall now turn to the Constitutional-Avoidance Doctrine. The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as:
“The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion”
[106]. The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition. The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR held:
[256]..The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.”
21. Like dependence was placed in Brookside Dairy Limited v Mohamed & another [2022] KEHC 13627 (KLR).
22. On the constitutionality of the impugned section, Counsel submitted that the petition offends presumption of constitutionality as discussed by the Supreme Court of India in Hamdarddawa Khana vs Union of India Air [1960], the Court stated as follows:
“In examining the Constitutionality of a statute, it must be assumed that the legislature understands and appreciates the need of the people and the law it enacts are directed to problems which are made manifest by experience and the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the Constitutionality of an enactment.”
23. Furthermore, Counsel argued that the constitutionality of the impugned section was litigated upon in Beatrice Ciamutua Rugamba v Fredrick Nkari Mutegi & 5 others [2016] eKLR where the Court referring to sub-section (b) and (c) underscored that primarily a dependant must prove that he or she was being maintained by the deceased prior to his death. As such, Counsel reasoned that it is not the mere relationship that matters but proof of dependance. Considering this, Counsel asserted that the provision cannot be said to be discriminatory.
24. Counsel in addition submitted that the petition as drafted is flawed as the petitioner failed to enjoin the Parliament on the proceedings being the body mandated to amend the law as held in Ripples International (supra). Counsel as well pointed out that the petitioner had failed to petition the Parliament as provided under Article 119 of the Constitution.
Analysis and Determination
25. It is my humble view that the issues that arise for determination in this matter are:
i. Whether the petition offends the doctrine of constitutional avoidance.
ii. Whether the petitioner ought to have petitioned the Parliament.
iii. Whether Section 29 (c) of the Law of Succession Act is inconsistent with the Constitution.
iv. Whether the petitioner is entitled to the relief sought
Whether the petition offends the doctrine of constitutional avoidance.
26. The Respondent contended that source of the instant dispute is the administration of the estate of the deceased, one Caroline Wawira Njagi, and the determination of the same will also delve into inquiring the nature of petitioner’s relationship with the deceased, which is a jurisdiction to be exercised by the Family Division of the High Court. It was thus argued by the Respondent that the Petition offends the doctrine of Constitutional avoidance.
27. The doctrine of Constitutional avoidance underscores that the Constitution should not be invoked to resolve ordinary disputes whose remedies are available either under the common law or statutes or other applicable legal principles. Black’s Law Dictionary Tenth Edition defines ‘Constitutional avoidance rule’ as follows:
“The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion”
28. In Faraj & 3 others v Police & 2 others [2022] KEHC 287 (KLR) the Court observed as follows:
“Constitutional avoidance has been defined as a preference of deciding a case on any other basis other than one which involves a constitutional issue being resolved. 9 As a principle, constitutional avoidance has been linked to the doctrine of justiciability. In broad terms, justiciability governs the limitations on the constitutional arguments that the courts will entertain. It encompasses three main principles which are standing, ripeness and mootness.11 The doctrine of avoidance was fortified in Sports and Recreation Commission v Sagittarius Wrestling Club and Anor in which Ebrahim JA said the following: -
…Courts will not normally consider a constitutional question unless the existence of a remedy depends upon it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of Rights…”
26. Also relevant is the decision in S v Mhlungu14 which laid out constitutional avoidance as a general principle in the following terms: -
I would lay it down as a general principle that where it is possible to decide any case, criminal or civil, without reaching a constitutional issue, that is the course which should be followed.”
29. Similarly, in C O D & another vs Nairobi City Water & Sewerage Co. Ltd (2015) eKLR the Court held as follows:
“13. It was further observed in the case of Minister of Home Affairs vs Bickle & Others (1985) LRC Const (per (Georges C.J);
“Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a Court will usually decline to determine whether there has been in addition a breach of the Declaration of Rights.”
30. The Court thus concluded:
“15. The Constitution cannot be used as a general substitute for the normal procedures. The mere allegation that a human right has been contravened is not itself sufficient to entitle the applicant to invoke the jurisdiction of the High Court under Article 165 of the Constitution: See Harrikissoon v A-G [1979] 3 WLR 62. Where it is possible to decide any case or dispute, civil or criminal, without reading a constitutional issue then that is the course that should be followed. The court sitting as a constitutional court must through the doctrine of avoidance steer clear of determining such disputes as if there were constitutional questions being raised: see S v Mhlungu [1995] 3 SA 867 (CC) and also Ashwander v Tennessee 297 US 288.”
31. The Respondent’s contention is that this matter is grounded on facts relating administration of the estate of the deceased is should offends the doctrine of Constitutional avoidance as it ought to have been determined in the Family Division.
32. From the way the Petition is framed, the issue before me is not a dispute over the distribution of property. If it were so, I would have agreed that the cause to follow is application of the provisions of the Law of Succession Act.
33. The Petitioner herein is questioning the Constitutionality of Section 29 (c) of the Law of Succession Act. That is the essence of the Petition, not the distribution of Estate of the deceased which is only pleaded for purposes of laying a background of the Petition. In the prayers, the Petitioner has only limited himself to the Constitutional question on unconstitutionality of Section 29 (c) of the Law of Succession Act. The Petitioner has not made any prayers in regard to the distribution of the Estate of the deceased which is governed under the Law of Succession Act, he only questions the Constitutionality of Section 29 (c) of the Act.
34. The constitutionality of a legislation cannot be determined without reference to the Constitution hence this is not a matter whose remedy only lies in the Statute. It raises a constitutional question hence the doctrine of Constitutional avoidance does not apply. This Court has jurisdiction to determine the matter under Article 165 (3) (d) (i) of the Constitution which gives it authority to determine the question of whether any law is inconsistent with or in contravention of the Constitution.
35. The respondent’s contention that the dispute offends the doctrine of Constitutional avoidance inescapably fails.
Whether the petitioner ought to have petitioned the Parliament
36. Article 119 of the Constitution provides as follows:
(1) Every person has a right to petition Parliament to consider any matter within its authority, including to enact, amend or repeal any legislation.
(2) Parliament shall make provision for the procedure for the exercise of this right.
37. The Petitions to Parliament (Procedure) Act provides under Section 4 and 5 as follows:
Procedure for presenting petition
(1) A petition to the National Assembly or the Senate shall be—
(a) submitted to the Clerk of the relevant House by the petitioner; or
(b) presented by a member of the National Assembly or the Senate on behalf of a petitioner, with the consent of the relevant Speaker.
(2) Notwithstanding section 4(1)(b), a member of the National Assembly or the Senate shall not be eligible to present a petition on his own behalf.
(3) The Clerk of the relevant House shall, within seven days of the date of receipt of the petition, review the petition to ascertain whether the petition meets the requirements of this Act.
(4) Where the Clerk of the relevant House of Parliament considers that a petition does not comply with section 3, the Clerk may give such directions as are necessary to ensure that the petition is amended to comply with that section.
(5) A petition shall not be rejected merely because it is not addressed to the Clerk of the relevant House of Parliament, and where a petition is addressed to the Clerk of a House that has no authority to deal with the matter; the Clerk of that House shall refer the petition to the Clerk of the other House.
Consideration of petition
(1) The Clerk shall, if satisfied that the petition meets the requirements of this Act, forward the petition to the Speaker of the relevant House for tabling in the House.
(2) A petition that is tabled in Parliament under this Act shall be considered in accordance with the Standing Orders of the relevant House.
(3) The Clerk of the relevant House of Parliament shall, within fifteen days of the decision of the relevant House, in writing, notify the petitioner of the decision of the House.
38. Discussing the implication of this Article in Pharmaceutical Society of Kenya & another v Attorney General & 3 others [2021] KEHC 85 (KLR) the Court determined as follows:
“38.The High Court has on a number of occasions pronounced itself on the right to petition Parliament under the article 119 of the Constitution. In the case of Katiba Institute & another v Attorney General & another [2017] eKLR the Court held that:
“103.We emphasize that under article 2(4) of the Constitution, any law, including customary law, that is inconsistent with the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid. Under article 165(3)(d)(i) and (ii) the High Court is clothed with the jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of the question whether any law is inconsistent with or in contravention of the Constitution; and, the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution.
104. Therefore, whereas the legislative authority vests in Parliament and the County Assemblies, where a question arises as to whether an enactment is inconsistent with the Constitution or is passed in contravention of the Constitution, the High Court is the institution constitutionally empowered to determine the issue. This is of course subject to the appellate jurisdiction given to the Court of Appeal and the Supreme Court. There is nothing like supremacy of the legislative assembly outside the Constitution…
115. It is therefore clear that the mere fact that Parliament has the power pursuant to a petition under article 119 of the Constitution to enact, amend or repeal legislation, does not bar this Court from carrying out its constitutional mandate; or, to fashion out an appropriate remedy.”
39. Likewise, in the case of Council of Governors & 3 others v Senate & 53 others [2015] eKLR it was held that:
“71. It is useful, however, in closing on jurisdictional questions, to address ourselves to the provisions of article 119(1) of the Constitution. The AG submits that the petitioners ought to have approached Parliament in accordance with the provisions of article 119(1) prior to filing its petition. Article 119(1) and (2) are in the following terms:
“Every person has a right to petition Parliament to consider any matter within its authority, including to enact, amend or repeal legislation.
2. Parliament shall make provision for the procedure for the exercise of this right.”
72. The question is whether this provision is intended to take away the right of a party to question the constitutionality of an Act of Parliament, or indeed any action taken by the legislature, guaranteed under articles 22 and 258. Further, whether it can also be taken as ousting the jurisdiction of the Court under article 165(3)(d) to determine any question respecting the interpretation of the Constitution, including “the question whether any law is inconsistent with or in contravention of” the Constitution,….
73. In our view, the answer must be in the negative. Doubtless, article 119(i) will serve a useful purpose in allowing citizens to petition Parliament to consider matters of concern to them that are within the purview of Parliament, including the repeal or amendment of legislation. It appears to us, however, that article 119 is not intended to cover situations such as is presently before this Court. The question of the constitutionality of the impugned CGAA was raised with Parliament prior to its enactment. As deposed by Mr Charles Nyachae, the Chairman of CIC, in his affidavit sworn on September 19, 2014, the issue had been brought to the attention of Parliament through CIC’s Advisory Opinion in the month of August 2014, prior to the enactment of the CGAA. Parliament, nonetheless, appears to have disregarded the concerns raised regarding its conformity with the Constitution and proceeded to enact the legislation.
74. It would therefore be, in our view, for the Court to abdicate its responsibility under the Constitution to hold that a party who considers that legislation enacted by Parliament in any way violates the Constitution is bound to first petition Parliament with respect to the said legislation. The constitutional mandate to consider the constitutionality of legislation is vested in the High Court, and articles 2(4) and 165(3(d)(i) mandate this Court to invalidate any law, act or omission that is inconsistent with the Constitution. This is in harmony with the mandate of the courts to be the final custodian of the Constitution.”
40… The authority of Parliament includes the enactment, amendment and repeal of legislation. That is one avenue for rectifying unconstitutional legislations that may have genuinely slipped through the keen eyes of parliamentarians. This remedy does not, however, oust the constitutional authority of this Court to determine the constitutionality of any enactment by the legislature. While the Court appreciates that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or statute, that procedure should be followed, the court takes note of the fact that the right to petition the court is a fundamental constitutional prescription which cannot be deemed to be of lesser effect than the right to petition Parliament. It is upon the parties to opt for what they deem to be the most effective and efficient remedy. I therefore find no merit in the assertion by the 1st and 2nd respondents that the petitioners failed to exhaust a statutory remedy…”
39. The Respondent’s argument that failure by the Petitioner to take the option of petitioning Parliament to consider amending the law prior to filing this Petition that challenges it constitutionality cannot thus hold in the light of the above precedents which assert that the provision relating to petitioning of Parliament does not oust the jurisdiction of the Court or take away the right of a party to petition the Court to declare a law that is inconsistent with the Constitution unconstitutional as the Court is the ultimate authority on Constitutional interpretation.
Whether Section 29 (c) of the Law of Succession Act is inconsistent with the Constitution.
40. The principles for constitutional interpretation were emphasized by the Supreme Court in the Matter of the Interim Independent Electoral Commission [2011] KESC 1 (KLR) as follows:
“(86)” …..The rules of constitutional interpretation do not favour formalistic or positivistic approaches (Articles 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction. The Constitution has a most modern Bill of Rights, that envisions a human-rights based, and social-justice oriented State and society. The values and principles articulated in the Preamble, in Article 10, in Chapter 6, and in various other provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the Courts.
[87] In Article 259(1) the Constitution lays down the rule of interpretation as follows: “This Constitution shall be interpreted in a manner that – (a) promotes its purposes, values and principles; (b) advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance.” Article 20 requires the Courts, in interpreting the Bill of Rights, to promote: (a) the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and (b) the spirit, purport and objects of the Bill of Rights.
[88] These constitutional imperatives must be implemented in interpreting the provisions of Article 163(6) and (7), on Advisory Opinions. Article 10 states clearly the values and principles of the Constitution, and these include: patriotism, national unity, sharing and devolution of power, the rule of law, democracy, participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized, good governance, integrity, transparency and accountability, and sustainable development.
[89] It is for these reasons that the Supreme Court, while observing the importance of certainty of the law, has to nurture the development of the law in a manner that eschews formalism, in favour of the purposive approach. Interpreting the Constitution, is a task distinct from interpreting the ordinary law. The very style of the Constitution compels a broad and flexible approach to interpretation.”
41. Equally, the Court of Appeal in Center for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012] KECA 249 (KLR) determined as follows:
“a. It should be interpreted in a manner that promotes its purposes, values and principles; advances rule of law, human rights and fundamental freedoms and permits development of the law and contributes to good governance as provided by Article 259.
b. The spirit and tenor of the Constitution must preside and permeate the process of judicial interpretation and judicial discretion.
c. It must be interpreted broadly, liberally and purposively so as to avoid “the austerity of tabulated legalism.”
d. The entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other as to effectuate the great purpose of the instrument (the harmonization principle).”
42. On the other hand, there are a number of well-established principles employed in the interpretation of an Act of Parliament. The first is that there is a general presumption that every Act of Parliament is constitutional. This principle was captured by the Court of Appeal of Tanzania in Ndyanabo vs. Attorney General [2001] EA 495 being a restatement of the law in the English case of Pearlberg vs. Varty [1972] 1 WLR 534 that:
“Until the contrary is proved, legislation is presumed to be constitutional. It is a sound principle of constitutional construction that, if possible, legislation should receive such a construction as will make it operative and not inoperative”
43. Secondly, in R vs Big M Drug Mart Ltd 1985 CR 295 as cited with approval in the case of Geoffrey Andare v Att
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1. The petition dated 17th October 2023 is supported by the petitioner’s affidavit in support.
2. The petition challenges the constitutionality of Section 29 (c) of the Law of Succession Act which requires a husband to a deceased wife to prove dependency on his wife prior to her demise to be considered a beneficiary of the estate of his late wife. The Petitioner argues that this condition is a violation of Article 27 of the Constitution because it does not apply on the wife in case the departed is the husband.
3. The petitioner thus seeks the following reliefs against the respondent:
a) A declaration be issued that in so far as Section 29 (c) of the Law of Succession Act places preconditions on widowers to prove dependency on their late wives as a condition to be deemed as dependents worthy of benefiting from succession, it infringes on the petitioner’s constitutional guarantee of equality before the law and matrimonial equality as guaranteed under Articles 27 & 45(3) of the Constitution.
b) A declaration be issued that Section 29 (c) of the Law of Succession Act is unconstitutional, null and void to the extent that it places preconditions on widowers to prove dependence on their late wives as a condition to be deemed as dependents worthy of benefiting from succession.
c) A mandatory injunction be y issued directing the respondent to take the necessary measures & steps to ensure the requisite legislative reforms are enacted to amend and/ or repeal the Law of Succession Act to purge the above provisions of the Act in order to bring conformity of the Act with the Constitution.
d) Costs of this petition be provided with interests at the Court's rate.
e) Any other order that this court deems fit and just in the circumstances.
Petitioner’s Case
4. The petitioner deponed that he was the husband of the late Caroline Wawira Njagi. Their marriage was contracted under the Kiembu Customary Law in April 2002.
5. They were blessed with two children I.M. aged 14 years and C.M. aged 13 years.
6. They later on separated in 2022 but they maintained a cordial relationship and jointly took care of their two children.
7. Unfortunately, Caroline Wawira passed away on 24th July 2023.
8. The deceased’s partner began the burial preparation without involving the Petitioner. The said partner planned to bury the deceased in Meru notwithstanding the deceased had during her lifetime requested the petitioner to burry her at their matrimonial home in Njakairi Village, Gaturi South, Embu.
9. The petitioner was disturbed as it meant that together that with their children, they could not attend the funeral or visit the deceased’s grave site or pay homage as such arrangement might be opposed by the deceased’s partner. The Petitioner accordingly filed a suit at Mavoko Law Courts where he obtained orders allowing him to bury the deceased wife being her legitimate husband.
10. He assails the provisions of Section 29 (c) of the Law of Succession Act for being prejudicial to his interests as the husband as it requires him to prove that he was a dependent of his late wife prior to her death to be considered a beneficiary yet there is no corresponding a similar requirement for wives when their husbands die. Consequently, he contends that Section 29 (c) of the Law of Succession is discriminatory against husbands in that regard and is therefore unconstitutional.
11. Further, he points out that the Act which was enacted in 1981 and ought to be aligned to the current Constitution.
Respondent’s Case
12. The respondent in rejoinder to the petition filed grounds of opposition dated 28th May 2024 on the basis that:
i. The respondent has been wrongfully joined in this petition. The respondent has no mandate in enacting and amending legislation. Moreover, repealing a law does not fall in the purview of the functions of the Attorney General and that a petition to sue him as a party when it comes to challenging the constitutionality of a legislative authority is misconceived.
ii. In as much as the petition alleges that section 29(c) of the Law of Succession Act is unconstitutional, the source of the instant dispute relates to the administration of the estate of the deceased, one Caroline Wawira Njagi, which puts the dispute squarely in the purview of the Family Division of the High Court.
iii. The disposition of the instant petition will require an interrogation into the nature of petitioner’s relationship with the deceased, which jurisdictions can be duly exercised by the Family Division of the High Court.
iv. The petitioner has failed to state with precision and demonstrate how the alleged rights were infringed by the Respondent as required in law as the holding in Anarita Karimi Njeru v Republic (1979) KLR 1.
v. There is a general presumption that every Act of Parliament is constitutional and the burden of proof lies on everyone who alleges otherwise.
vi. The power to make laws including amendment thereof lie with Parliament under Article 109(1) of the Constitution that “Parliament shall exercise its legislative power through Bills passed by Parliament and assented to by the President.”
vii. The role of the respondent is defined in Article 156 (1) (4) of the Constitution and, as “the principal legal adviser to the government” is limited in legislative matters. It would be wrong to require the Attorney-General to take steps and report on progress towards enactment or amendment of law a process he has little control over and there is no basis for compelling the Attorney General to ensure legislation is enacted as was held in Ripples International v Attorney General & another; FIDA (Interested Party) (Constitutional Petition E017 of 2021) [2022] KEHC 13210 (KLR).
viii. Every person is empowered by Article 119(1) of the Constitution to petition Parliament to enact, amend or repeal any legislation. There is an established statutory procedure to ventilate the issues brought out in the petition.
ix. The petitioner has totally failed to tender sufficient evidence necessary to substantiate their allegations of infringement of their constitutional rights by the respondent.
x. The petition is otherwise incompetent, misconceived, frivolous, misinterprets the application of Customary Law and an abuse of the court process as the petitioner’s rights and the orders sought therein are untenable and it ought to be dismissed with costs to the petitioner.
Petitioner’s Submissions
13. The petitioner through Wambui Shadrack and Associate Advocates filed submissions dated 28th May 2024. Counsel submitted that Section 29 (c) of the Law of Succession Act defines a dependent to among others as:
‘Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death’.
14. Counsel submitted that this provision requires a husband to prove that he was being maintained by his wife prior to her death yet the same precondition is not placed on the wife where the deceased is the husband. Counsel contended that this differentiation is discriminatory and denies husbands equal benefit of the law as envisaged under Article 27 of the Constitution.
15. Reliance was placed in Andrews v Law Society of British Columbia [1989] 1 SCR 143 where the Supreme Court of Canada held that:
“Discrimination is a distinction which, whether intentional or not (is) based on grounds relating to personal characteristics of the individual or group, (and) has effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.”
16. Like dependence was placed in Rose Wangui Mambo & 2 others vs. Limuru County Club & 17 others (2014) eKLR.
17. Consequently, Counsel stressed that this provision perpetrates an unconstitutional differentiation which is archaic and with no legal justification. Considering this, Counsel urged the Court to adopt an interpretation that includes husbands or former husbands as beneficiaries, whether or not they were being provided by their wives.
Respondent’s Submissions
18. On 10th July 2024, State Counsel, Jackline Kiramana filed submissions for the respondent.
19. Counsel submitted that the issue raised herein relates to intestate succession which is a preserve of the Family Court, a division of the High Court which is competent to hear and determine the questions raised in this matter. As a result, Counsel argued that the petition violates the principle of constitutional avoidance.
20. Reliance was placed in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR where the Supreme Court held that:
“[105]. We shall now turn to the Constitutional-Avoidance Doctrine. The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as:
“The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion”
[106]. The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition. The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR held:
[256]..The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.”
21. Like dependence was placed in Brookside Dairy Limited v Mohamed & another [2022] KEHC 13627 (KLR).
22. On the constitutionality of the impugned section, Counsel submitted that the petition offends presumption of constitutionality as discussed by the Supreme Court of India in Hamdarddawa Khana vs Union of India Air [1960], the Court stated as follows:
“In examining the Constitutionality of a statute, it must be assumed that the legislature understands and appreciates the need of the people and the law it enacts are directed to problems which are made manifest by experience and the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the Constitutionality of an enactment.”
23. Furthermore, Counsel argued that the constitutionality of the impugned section was litigated upon in Beatrice Ciamutua Rugamba v Fredrick Nkari Mutegi & 5 others [2016] eKLR where the Court referring to sub-section (b) and (c) underscored that primarily a dependant must prove that he or she was being maintained by the deceased prior to his death. As such, Counsel reasoned that it is not the mere relationship that matters but proof of dependance. Considering this, Counsel asserted that the provision cannot be said to be discriminatory.
24. Counsel in addition submitted that the petition as drafted is flawed as the petitioner failed to enjoin the Parliament on the proceedings being the body mandated to amend the law as held in Ripples International (supra). Counsel as well pointed out that the petitioner had failed to petition the Parliament as provided under Article 119 of the Constitution.
Analysis and Determination
25. It is my humble view that the issues that arise for determination in this matter are:
i. Whether the petition offends the doctrine of constitutional avoidance.
ii. Whether the petitioner ought to have petitioned the Parliament.
iii. Whether Section 29 (c) of the Law of Succession Act is inconsistent with the Constitution.
iv. Whether the petitioner is entitled to the relief sought
Whether the petition offends the doctrine of constitutional avoidance.
26. The Respondent contended that source of the instant dispute is the administration of the estate of the deceased, one Caroline Wawira Njagi, and the determination of the same will also delve into inquiring the nature of petitioner’s relationship with the deceased, which is a jurisdiction to be exercised by the Family Division of the High Court. It was thus argued by the Respondent that the Petition offends the doctrine of Constitutional avoidance.
27. The doctrine of Constitutional avoidance underscores that the Constitution should not be invoked to resolve ordinary disputes whose remedies are available either under the common law or statutes or other applicable legal principles. Black’s Law Dictionary Tenth Edition defines ‘Constitutional avoidance rule’ as follows:
“The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion”
28. In Faraj & 3 others v Police & 2 others [2022] KEHC 287 (KLR) the Court observed as follows:
“Constitutional avoidance has been defined as a preference of deciding a case on any other basis other than one which involves a constitutional issue being resolved. 9 As a principle, constitutional avoidance has been linked to the doctrine of justiciability. In broad terms, justiciability governs the limitations on the constitutional arguments that the courts will entertain. It encompasses three main principles which are standing, ripeness and mootness.11 The doctrine of avoidance was fortified in Sports and Recreation Commission v Sagittarius Wrestling Club and Anor in which Ebrahim JA said the following: -
…Courts will not normally consider a constitutional question unless the existence of a remedy depends upon it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of Rights…”
26. Also relevant is the decision in S v Mhlungu14 which laid out constitutional avoidance as a general principle in the following terms: -
I would lay it down as a general principle that where it is possible to decide any case, criminal or civil, without reaching a constitutional issue, that is the course which should be followed.”
29. Similarly, in C O D & another vs Nairobi City Water & Sewerage Co. Ltd (2015) eKLR the Court held as follows:
“13. It was further observed in the case of Minister of Home Affairs vs Bickle & Others (1985) LRC Const (per (Georges C.J);
“Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a Court will usually decline to determine whether there has been in addition a breach of the Declaration of Rights.”
30. The Court thus concluded:
“15. The Constitution cannot be used as a general substitute for the normal procedures. The mere allegation that a human right has been contravened is not itself sufficient to entitle the applicant to invoke the jurisdiction of the High Court under Article 165 of the Constitution: See Harrikissoon v A-G [1979] 3 WLR 62. Where it is possible to decide any case or dispute, civil or criminal, without reading a constitutional issue then that is the course that should be followed. The court sitting as a constitutional court must through the doctrine of avoidance steer clear of determining such disputes as if there were constitutional questions being raised: see S v Mhlungu [1995] 3 SA 867 (CC) and also Ashwander v Tennessee 297 US 288.”
31. The Respondent’s contention is that this matter is grounded on facts relating administration of the estate of the deceased is should offends the doctrine of Constitutional avoidance as it ought to have been determined in the Family Division.
32. From the way the Petition is framed, the issue before me is not a dispute over the distribution of property. If it were so, I would have agreed that the cause to follow is application of the provisions of the Law of Succession Act.
33. The Petitioner herein is questioning the Constitutionality of Section 29 (c) of the Law of Succession Act. That is the essence of the Petition, not the distribution of Estate of the deceased which is only pleaded for purposes of laying a background of the Petition. In the prayers, the Petitioner has only limited himself to the Constitutional question on unconstitutionality of Section 29 (c) of the Law of Succession Act. The Petitioner has not made any prayers in regard to the distribution of the Estate of the deceased which is governed under the Law of Succession Act, he only questions the Constitutionality of Section 29 (c) of the Act.
34. The constitutionality of a legislation cannot be determined without reference to the Constitution hence this is not a matter whose remedy only lies in the Statute. It raises a constitutional question hence the doctrine of Constitutional avoidance does not apply. This Court has jurisdiction to determine the matter under Article 165 (3) (d) (i) of the Constitution which gives it authority to determine the question of whether any law is inconsistent with or in contravention of the Constitution.
35. The respondent’s contention that the dispute offends the doctrine of Constitutional avoidance inescapably fails.
Whether the petitioner ought to have petitioned the Parliament
36. Article 119 of the Constitution provides as follows:
(1) Every person has a right to petition Parliament to consider any matter within its authority, including to enact, amend or repeal any legislation.
(2) Parliament shall make provision for the procedure for the exercise of this right.
37. The Petitions to Parliament (Procedure) Act provides under Section 4 and 5 as follows:
Procedure for presenting petition
(1) A petition to the National Assembly or the Senate shall be—
(a) submitted to the Clerk of the relevant House by the petitioner; or
(b) presented by a member of the National Assembly or the Senate on behalf of a petitioner, with the consent of the relevant Speaker.
(2) Notwithstanding section 4(1)(b), a member of the National Assembly or the Senate shall not be eligible to present a petition on his own behalf.
(3) The Clerk of the relevant House shall, within seven days of the date of receipt of the petition, review the petition to ascertain whether the petition meets the requirements of this Act.
(4) Where the Clerk of the relevant House of Parliament considers that a petition does not comply with section 3, the Clerk may give such directions as are necessary to ensure that the petition is amended to comply with that section.
(5) A petition shall not be rejected merely because it is not addressed to the Clerk of the relevant House of Parliament, and where a petition is addressed to the Clerk of a House that has no authority to deal with the matter; the Clerk of that House shall refer the petition to the Clerk of the other House.
Consideration of petition
(1) The Clerk shall, if satisfied that the petition meets the requirements of this Act, forward the petition to the Speaker of the relevant House for tabling in the House.
(2) A petition that is tabled in Parliament under this Act shall be considered in accordance with the Standing Orders of the relevant House.
(3) The Clerk of the relevant House of Parliament shall, within fifteen days of the decision of the relevant House, in writing, notify the petitioner of the decision of the House.
38. Discussing the implication of this Article in Pharmaceutical Society of Kenya & another v Attorney General & 3 others [2021] KEHC 85 (KLR) the Court determined as follows:
“38.The High Court has on a number of occasions pronounced itself on the right to petition Parliament under the article 119 of the Constitution. In the case of Katiba Institute & another v Attorney General & another [2017] eKLR the Court held that:
“103.We emphasize that under article 2(4) of the Constitution, any law, including customary law, that is inconsistent with the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid. Under article 165(3)(d)(i) and (ii) the High Court is clothed with the jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of the question whether any law is inconsistent with or in contravention of the Constitution; and, the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution.
104. Therefore, whereas the legislative authority vests in Parliament and the County Assemblies, where a question arises as to whether an enactment is inconsistent with the Constitution or is passed in contravention of the Constitution, the High Court is the institution constitutionally empowered to determine the issue. This is of course subject to the appellate jurisdiction given to the Court of Appeal and the Supreme Court. There is nothing like supremacy of the legislative assembly outside the Constitution…
115. It is therefore clear that the mere fact that Parliament has the power pursuant to a petition under article 119 of the Constitution to enact, amend or repeal legislation, does not bar this Court from carrying out its constitutional mandate; or, to fashion out an appropriate remedy.”
39. Likewise, in the case of Council of Governors & 3 others v Senate & 53 others [2015] eKLR it was held that:
“71. It is useful, however, in closing on jurisdictional questions, to address ourselves to the provisions of article 119(1) of the Constitution. The AG submits that the petitioners ought to have approached Parliament in accordance with the provisions of article 119(1) prior to filing its petition. Article 119(1) and (2) are in the following terms:
“Every person has a right to petition Parliament to consider any matter within its authority, including to enact, amend or repeal legislation.
2. Parliament shall make provision for the procedure for the exercise of this right.”
72. The question is whether this provision is intended to take away the right of a party to question the constitutionality of an Act of Parliament, or indeed any action taken by the legislature, guaranteed under articles 22 and 258. Further, whether it can also be taken as ousting the jurisdiction of the Court under article 165(3)(d) to determine any question respecting the interpretation of the Constitution, including “the question whether any law is inconsistent with or in contravention of” the Constitution,….
73. In our view, the answer must be in the negative. Doubtless, article 119(i) will serve a useful purpose in allowing citizens to petition Parliament to consider matters of concern to them that are within the purview of Parliament, including the repeal or amendment of legislation. It appears to us, however, that article 119 is not intended to cover situations such as is presently before this Court. The question of the constitutionality of the impugned CGAA was raised with Parliament prior to its enactment. As deposed by Mr Charles Nyachae, the Chairman of CIC, in his affidavit sworn on September 19, 2014, the issue had been brought to the attention of Parliament through CIC’s Advisory Opinion in the month of August 2014, prior to the enactment of the CGAA. Parliament, nonetheless, appears to have disregarded the concerns raised regarding its conformity with the Constitution and proceeded to enact the legislation.
74. It would therefore be, in our view, for the Court to abdicate its responsibility under the Constitution to hold that a party who considers that legislation enacted by Parliament in any way violates the Constitution is bound to first petition Parliament with respect to the said legislation. The constitutional mandate to consider the constitutionality of legislation is vested in the High Court, and articles 2(4) and 165(3(d)(i) mandate this Court to invalidate any law, act or omission that is inconsistent with the Constitution. This is in harmony with the mandate of the courts to be the final custodian of the Constitution.”
40… The authority of Parliament includes the enactment, amendment and repeal of legislation. That is one avenue for rectifying unconstitutional legislations that may have genuinely slipped through the keen eyes of parliamentarians. This remedy does not, however, oust the constitutional authority of this Court to determine the constitutionality of any enactment by the legislature. While the Court appreciates that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or statute, that procedure should be followed, the court takes note of the fact that the right to petition the court is a fundamental constitutional prescription which cannot be deemed to be of lesser effect than the right to petition Parliament. It is upon the parties to opt for what they deem to be the most effective and efficient remedy. I therefore find no merit in the assertion by the 1st and 2nd respondents that the petitioners failed to exhaust a statutory remedy…”
39. The Respondent’s argument that failure by the Petitioner to take the option of petitioning Parliament to consider amending the law prior to filing this Petition that challenges it constitutionality cannot thus hold in the light of the above precedents which assert that the provision relating to petitioning of Parliament does not oust the jurisdiction of the Court or take away the right of a party to petition the Court to declare a law that is inconsistent with the Constitution unconstitutional as the Court is the ultimate authority on Constitutional interpretation.
Whether Section 29 (c) of the Law of Succession Act is inconsistent with the Constitution.
40. The principles for constitutional interpretation were emphasized by the Supreme Court in the Matter of the Interim Independent Electoral Commission [2011] KESC 1 (KLR) as follows:
“(86)” …..The rules of constitutional interpretation do not favour formalistic or positivistic approaches (Articles 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction. The Constitution has a most modern Bill of Rights, that envisions a human-rights based, and social-justice oriented State and society. The values and principles articulated in the Preamble, in Article 10, in Chapter 6, and in various other provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the Courts.
[87] In Article 259(1) the Constitution lays down the rule of interpretation as follows: “This Constitution shall be interpreted in a manner that – (a) promotes its purposes, values and principles; (b) advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance.” Article 20 requires the Courts, in interpreting the Bill of Rights, to promote: (a) the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and (b) the spirit, purport and objects of the Bill of Rights.
[88] These constitutional imperatives must be implemented in interpreting the provisions of Article 163(6) and (7), on Advisory Opinions. Article 10 states clearly the values and principles of the Constitution, and these include: patriotism, national unity, sharing and devolution of power, the rule of law, democracy, participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized, good governance, integrity, transparency and accountability, and sustainable development.
[89] It is for these reasons that the Supreme Court, while observing the importance of certainty of the law, has to nurture the development of the law in a manner that eschews formalism, in favour of the purposive approach. Interpreting the Constitution, is a task distinct from interpreting the ordinary law. The very style of the Constitution compels a broad and flexible approach to interpretation.”
41. Equally, the Court of Appeal in Center for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012] KECA 249 (KLR) determined as follows:
“a. It should be interpreted in a manner that promotes its purposes, values and principles; advances rule of law, human rights and fundamental freedoms and permits development of the law and contributes to good governance as provided by Article 259.
b. The spirit and tenor of the Constitution must preside and permeate the process of judicial interpretation and judicial discretion.
c. It must be interpreted broadly, liberally and purposively so as to avoid “the austerity of tabulated legalism.”
d. The entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other as to effectuate the great purpose of the instrument (the harmonization principle).”
42. On the other hand, there are a number of well-established principles employed in the interpretation of an Act of Parliament. The first is that there is a general presumption that every Act of Parliament is constitutional. This principle was captured by the Court of Appeal of Tanzania in Ndyanabo vs. Attorney General [2001] EA 495 being a restatement of the law in the English case of Pearlberg vs. Varty [1972] 1 WLR 534 that:
“Until the contrary is proved, legislation is presumed to be constitutional. It is a sound principle of constitutional construction that, if possible, legislation should receive such a construction as will make it operative and not inoperative”
43. Secondly, in R vs Big M Drug Mart Ltd 1985 CR 295 as cited with approval in the case of Geoffrey Andare v Att
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