Ezekiah M'IKiara v Edward M'Iniu M'Kandi [1984] KECA 6 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that even if both parties agree, a court cannot hand a case over to a customary oath to decide it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court has jurisdiction to dispose of a suit by requiring a party to take an oath according to customary law, even by consent
- 2.Whether under Kimeru customary law the consequence of a customary oath cannot be implemented until six months from its administration have elapsed
- 3.Whether there was a valid consent order finally disposing of the dispute in agreed terms
- 4.Whether the trial judge erred in failing to enquire into the customary law rule on the period for the oath to take effect
Key legal issues
#Jurisdiction of the High Court to dispose of a suit by reference to a customary oath administrator
The High Court had no jurisdiction, even by consent, to refer a properly instituted suit to an oath administrator; the oath administrator is not a court or adjudicating authority established by law, and the resulting proceedings and judgment were null and void.
Section 77(9) and (10) of the Constitution guarantee determination of civil rights by an independent and impartial court or adjudicating authority established by law, with a fair hearing within a reasonable time. Oaths under sections 13 and 16 of the Oaths and Statutory Declaration Act are prelude to evidence, not a foundation for determining civil rights. The only lawful routes for consensual reference (arbitration under order XLV and the Arbitration Act) are prescribed by law, and the oath procedure did not fit them.
Whether consent can oust the jurisdiction of a court once invoked
Consent of parties to an unknown procedure cannot oust the jurisdiction of a court properly seized of a suit; parties may only leave the court's jurisdiction by a method sanctioned by an Act or the Civil Procedure Rules.
Hancox JA and Nyarangi Ag JA, following Kimomo v Musomba (Law VP and Wambuzi P), held that relegating a pending suit to oath administration and ceremonies beyond the court's control imported a separate jurisdiction into proceedings governed by the Civil Procedure Rules, producing a nullity. The proper course would have been withdrawal of the suit or recording of a clear consent order after the oath, without the court participating in or adjudicating on the oath's results.
Application versus trial by African customary law under section 3(2) of the Judicature Act
There is a confusion between applying African customary law in a regular trial and trial by African customary law; the former is lawful and required, the latter cannot be imported into proceedings already embarked upon in court.
Section 3(2) of the Judicature Act directs courts to be guided by African customary law in applicable civil cases and to do substantial justice without undue regard to technicalities. But the mode of trial is not a technicality, and the customary oath here was not the application of customary law to issues in a trial but a surrender of the dispute to a non-judicial procedure whose terms, including the six-month incubation period, were disputed and unproven.
Proof of the customary law rule governing the effect and incubation period of the oath
Given the parties' substantial divergence on when the oath would take effect, the trial court should have required proof by evidence of the applicable customary law rule, following Kimani v Muiru.
Duffus JA in Kimani v Muiru laid down that African customary law must be accurately and definitely established, with the onus on the party propounding it, ordinarily by calling evidence. Here the parties consented to a procedure whose full terms and conditions they had no knowledge of, and the judge imposed payment without establishing the customary rule on the six-month waiting period.
Existence of a valid consent order disposing of the suit
There was never a valid consent to the judgment entered by VV Patel J because the appellant did not consent to immediate payment, insisting on the six-month incubation period under Kimeru custom.
The record of September 29, 1983 showed the appellant admitted the oath was taken but insisted he would pay only after six months, when any ill effects of the oath on the respondent would have manifested. The judge refused to countenance this delay and entered judgment, which at least one condition of the supposed reference had not fulfilled; the judgment was therefore imposed rather than consented to.
Legal principles established
#- An oath administrator is not a court or adjudicating authority established by law under section 77(9) and (10) of the Constitution, and a court has no jurisdiction to refer a suit to an oath administrator, whether by consent or otherwise; such proceedings are null and void.
- Parties cannot, even by consent, oust the jurisdiction of the High Court once invoked, except by a method sanctioned by an Act or the Civil Procedure Rules.
- Consent to an unknown procedure for settlement does not oust the jurisdiction of a court properly seized of a suit.
- Parties may adopt customary law procedures alien to the civil procedure rules, provided there is consent, a court is kept out of the procedures, and a definite order on which a consent decree can be based is recorded.
- Where the content of a customary law rule is in dispute, the party propounding it must prove it by evidence, as stated in Kimani v Muiru.
Court orders
#- 1.The appeal is allowed
- 2.The judgment and decree of the High Court (VV Patel J) of September 29, 1983 are set aside
- 3.The suit is remitted to the High Court to be heard and determined according to law (by some other judge)
- 4.The Kshs 23,000 paid into court by the appellant to remain in court until the suit is decided
- 5.Each party to bear its own costs of the appeal and in the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Kneller JA delivered the lead judgment. He traced the history of resolution of civil disputes by customary oath in East Africa, held that an oath administrator is not a court or adjudicating authority established by law under section 77(9) and (10) of the Constitution, and concluded the judge had no jurisdiction to approve the reference to an oath administrator, whether by consent or otherwise. He would allow the appeal, set aside the High Court judgment, remit the suit, keep the Kshs 23,000 in court, and order each party to bear their own costs.
So the learned judge, in my respectful view, had no jurisdiction to approve of the reference, whether by consent or otherwise, to an oath administrator. The proceedings were null and void.p. 3
Wrote the judgment
Hancox JA, in a separate concurring opinion, described the reference to the oath administrator as an abdication of the High Court's responsibilities. He analysed the Kimeru oath procedure, including the six-month incubation period and the absence of valid consent to the judgment entered, distinguished the application of customary law in a regular trial from trial by customary law, relied on Kimomo v Musomba, and held that parties cannot by consent oust the jurisdiction of the High Court except by a method sanctioned by statute or the Civil Procedure Rules.
The parties cannot, in my judgment, even by consent, oust the jurisdiction of the High Court, once invoked, except by a method sanctioned by an Act or the Civil Procedure Rules.p. 4
Wrote the judgment
Nyarangi Ag JA, in a separate concurring opinion, reviewed the consent orders and the oath proceedings, held the June 29, 1983 order was not made under any procedure known to law and breached section 77(9) of the Constitution and order XLV of the Civil Procedure Rules. Relying on Kimani v Muiru on proof of customary law, he held the parties had consented to a procedure whose full terms they did not know, and that parties may adopt customary procedures only if a court is kept out of them and a definite consent order is recorded. The proceedings were a nullity.
Consent of parties to some unknown procedure for settlement of a given dispute does not oust the jurisdiction of a court properly seized of a suit.p. 7
- On appeal from
- High Court of Kenya at Meru
- CC No. 67 of 1982
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a High Court civil decision (Judicature Act); appeal against judgment of V V Patel J of September 29, 1983
Relief refused
#Declaration that the High Court result was null and void in totality without remitting for trial
The court granted substantially this relief by setting aside the judgment and remitting the suit for trial according to law; no separate declaration was issued
Costs
Each party to bear its own costs of the appeal and in the High Court
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
So the learned judge, in my respectful view, had no jurisdiction to approve of the reference, whether by consent or otherwise, to an oath administrator. The proceedings were null and void.
The parties cannot, in my judgment, even by consent, oust the jurisdiction of the High Court, once invoked, except by a method sanctioned by an Act or the Civil Procedure Rules.
Consent of parties to some unknown procedure for settlement of a given dispute does not oust the jurisdiction of a court properly seized of a suit.
In the circumstances, the proceedings between June 29, 1983 and September 29, 1983, were a nullity.
I agree that the appeal be allowed, the judgment of the High Court set aside and the suit remitted to the High Court for trial according to law by some other judge. I concur in the order proposed by Kneller JA.
I am of the view that the appeal should be allowed, the judgment of the High Court set aside and the suit remitted to the High Court to try according to law. The Kshs 23,000 paid into court by the appellant should remain there until the suit is decided. Each party should bear its own costs of the appeal and in the High Court.
Issues in the judgment
#The judgment records inconsistent names and figures for the same matters: the respondent is called both M'Ikandi and M'Ikiandi; the amount contributed by the respondent is Shs 19,000 in the consent order but 20,500 in the oath record; the amount to remain in court is stated as Kshs 23,000 by Kneller JA and Kshs 25,000 by Hancox JA; the oath administrator is described as Ag Chief Maingi Mutiga in the orders but Assistant Chief Rafael Botania administered the oath.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ezekiah M'IKiara v Edward M'Iniu M'Kandi [1984] KECA 6 (KLR)", Case Analysis (1984). Civil Appeal (High Court CC No. 67 of 1982, Meru, referred to on appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/6/eng@1984-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.