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ELCPartially AllowedHigh Court Constitutional Petition No. 20 of 2013· [2018] KEELC 175 (KLR)

Washington Oduor Onwayo v Kenya Commercial Bank & another [2018] KEELC 175 (KLR)

High Court of Kenya
23 May 2014
Isaac LenaolaIsaac Lenaola
1,181 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled that fundamental rights survive death, so estates can sue to enforce them under the 2010 Constitution.

What this practically means

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Executive summary

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This was a notice of motion dated 13 November 2017 brought by the plaintiff/applicant under Order 40 Rules 1 and 2 of the Civil Procedure Rules, 2010 and Sections 1, 1A, 3, 3A and 63(e) of the Civil Procedure Act, Cap 21, against the 1st and 2nd defendants/respondents. The applicant sought an interlocutory injunction restraining the 1st respondent from selling by public auction, on 16 November 2017, land parcel LR No. KAMAGAMBO/KABUORO/4323 (the suit property), an order of inhibition preserving the property, and costs. The application was supported by the applicant's affidavit and a newspaper advertisement of the intended auction, and was premised on grounds that the suit property was matrimonial property protected by sections 24, 25 and 28 of the Land Registration Act, 2012, that it was undervalued, and that the applicant was willing to clear arrears. The applicant, a hardware businessman, had charged the suit property to the 1st respondent to secure a loan facility of Kshs. 500,000; his business collapsed and he defaulted. He contended he had repaid Kshs. 480,000 and that the repayment period had not lapsed. The application was opposed by the 1st respondent, who asserted its statutory power of sale, with counsel relying on Giella v Cassman Brown on injunction principles, and on Paul Kamau Maina v Kenya Civil Aviation Authority and Palmy Co. Ltd v Consolidated Bank of Kenya. The court framed the three Giella principles as sequential hurdles. Applying the Mrao Ltd definition of a prima facie case, it held the applicant had not demonstrated infringement of any right: the charge and arrears were common cause, there was no evidence of payments towards clearing arrears, and the applicant failed to show the property was matrimonial property. The court held the charged property had become a commodity for sale and declined to clog the chargee's statutory power of sale, citing the Palmy case. The applicant failed to meet the Giella threshold and the application was disallowed, with costs in the cause.

Key legal issues

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01

Locus standi of an administrator to enforce the rights of a deceased person

Holding

An administrator of a deceased person's estate has locus standi to institute proceedings for enforcement of the deceased's fundamental rights under Article 22(1) and 258 of the Constitution

Reasoning

The court noted that a fundamental right attaches to the person of the right holder and does not die with him. Adopting comparative jurisprudence from the United States, India and South Africa, the court held that the words 'any person' in Articles 22(1) and 258(1) include persons acting for deceased persons. The purpose of Chapter Four is to protect rights, and the Constitution does not expressly exclude enforcement of rights of deceased persons.

02

Whether enforcement of fundamental rights is limited to living persons

Holding

The enforcement of fundamental rights and freedoms under the Constitution of Kenya, 2010 is not limited to living persons

Reasoning

The court reasoned that the Interpretation and General Provisions Act, read with Article 259(1) of the Constitution, leads to the conclusion that the words 'any person' under Articles 22(1) and 258(1) should be construed to include persons acting on behalf of deceased persons. Had the drafters intended to restrict enforcement to living persons, they would have stated so expressly.

03

Enforceability of pre-2010 violations under the Constitution of 2010

Holding

Persons who died before the promulgation of the Constitution of 2010 retain the rights and fundamental freedoms in the Bill of Rights which may be enforced by their personal representatives

Reasoning

Article 2 of the transitional and consequential provisions provides that the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State. The court found no reason in law or logic to conclude that a person who died before the promulgation of the Constitution is precluded from having his or her rights enforced by a personal representative.

04

Propriety of seeking declaratory relief on a standalone issue of locus standi

Holding

The court is empowered to issue declarations on the proper interpretation of the Constitution on a standalone basis where parties have legitimately invoked the court's jurisdiction

Reasoning

The petitioner deliberately limited his petition to the single issue of locus standi to unlock the court's jurisdiction. The respondents argued that a petition requires full factual substratum on the violations alleged and that a declaration on a standalone issue of standing is undesirable. The court nonetheless found jurisdiction to grant the declarations sought.

Legal principles established

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  • A right under the Bill of Rights does not die with the person in whom it is vested; the right attaches to and follows the person of the deceased
  • The Constitution of Kenya, 2010 does not limit enforcement of fundamental rights to living persons
  • Persons who died before 27 August 2010 retain the rights and fundamental freedoms in the Bill of Rights and may have them enforced by their representatives

Court orders

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  1. 1.A declaration is hereby issued that the Petitioner has locus standi to file proceedings for the enforcement of the Bill of Rights on behalf of the late Sylvanus Onyango Oucho pursuant to Article 22(1) of the Constitution of Kenya, 2010
  2. 2.A declaration is hereby issued that the jurisdiction of this court to hear and determine the enforcement of rights Petition includes the jurisdiction to hear and determine enforcement of rights of deceased persons who died prior to the promulgation of the Constitution of Kenya, 2010
  3. 3.A declaration is hereby issued that the Petitioner can file a Petition for the enforcement of the fundamental rights and freedoms of the late Sylvanus Onyango Oucho who died before the promulgation of the Constitution of Kenya, 2010
  4. 4.As the Petitioner has limited his Petition to the issue of locus standi, this court directs that the main Petition be listed for pre-trial directions and for hearing on priority basis before a Judge of the Constitutional and Judicial Review Division
  5. 5.The Deputy Registrar of the Constitutional and Judicial Review Division of this court does allocate this matter a fresh hearing date within 30 days of the date of delivery of this ruling
  6. 6.As this is a matter of public interest and the matter touches on the Bill of Rights, each party shall bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 10, 19, 20, 22(1), 22(2)(c), 23, 24, 28, 47, 165(1), 165(3)(b), 226(3), 236, 249, 258(1), 258(2)(a), 259(1); Chapter Four
  • Interpretation and General Provisions Act (Cap 2)Section 5
  • Law of Succession Act (Cap 160)General
  • Judiciary (Leave Applications) RulesGeneral
Jurisdiction invoked
Articles 22(1), 22(2)(c), 258(1) and 258(2)(a) of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Washington Oduor Onwayo v Kenya Commercial Bank & another [2018] KEELC 175 (KLR)", Case Analysis (2014). High Court Constitutional Petition No. 20 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/175/eng@2018-11-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.