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THE LAW ON FAIR HEARING IN CIVIL CASES IN KENYA

BY DANIEL CHEGE LLB(HONS)

Article 50 of the constitution of Kenya provides for that every person is entiled to a Fair hearing,which  is an ingreadient to Natural justice.The principles of natural justice have been developed and followed by the judiciary to protect the right of the public against the arbitrariness of the administrative authorities. Natural Justice implies fairness, reasonableness, equity and equality. In Roman law the concept of natural justice consists of two essential rules:

1.      audi alteram partem,- the person, who has to be effected by a decision has a right to be heard; and

2.      nemo judex in re sua – the authority deciding the matter should be free from bias.

In the case of Ridge v. Baldwin⁸ , the applicability of natural justice to the quasi-judicial bodies took place. Ridge v. Baldwin is regarded as the Magna Carta of natural justice. The judgment of LORD REID widened the ambit of natural justice.Whenever this requirements are violated, the aggrieved party can apply for judicial review.

THE  KENYAN  POSITION

Fair hearing as an ingredient of Natural Justice is Provided for Under Article 50 of the constitution and Whenever Natural justice is denied, the aggrieved party can apply for judicial review provided under ORDER 53 of civil procedure rules 2010.Fair Hearing is operationalized by various laws, most importantly  the civil procedure rules 2010 under the following provisions;   

RULE OF FAIR HEARING.

The maxim audi alteram partem accentuates the rule of fair hearing. It lays down that no one should be condemned unheard. It is the first principle of the civilised jurisprudence that a person facing the charges must be given an opportunity to be heard, before any decision is taken against him. Hearing means ‘fair hearing’.The norms of reasonableness of opportunity of hearing vary from body to body and even case to case relating to the same body. In Cooper v. Wandsworth Board of Works¹⁷ , BYLES J. observed that the laws of God and man both give the party an opportunity to defend himself. Even God did not pass a sentence upon Adam before he was called upon to make his defence.

COMPONENTS OF RIGHT TO FAIR HEARING.

·         Right to notice

·         Right to know the evidence against him

·         Right to present case and evidence

·         Right to counsel.

1.      Right to notice. The term ‘Notice’ originated from the Latin word ‘Notitia’ which means ‘being known’. Thus it connotes the sense of information, intelligence or knowledge. Notice embodies the rule of fairness and must precede an adverse order. It should be clear enough to give the party enough information of the case he has to meet. There should be adequate time for the party, so that he can prepare for his defence. It is the sine qua non of the right of hearing. If the notice is a statutory requirement, then it must be given in a manner provided by law. Thus notice is the starting point in the hearing. Unless a person knows about the subjects and issues involved in the case, he cannot be in the position to defend himself.

The notice must be adequate also. Its adequacy depends upon the case. But generally, a notice, in order to be adequate must contain following elements:

·         Time, place and nature of hearing.

·         Legal authority under which hearing is to be held.

·         Statements of specific charges which the person has to meet.

This component is operationalized in Kenya by the following provisions of the civil procedure rules 2010

ü       ORDER 1 rule 15 provides for notice to third parties( third party proceedings)

ü       ORDER 3 rule 2(d) formal requirements  which presupposes notice that is a Demand letter.

ü       ORDER6  provides for appearance of parties

ü       ORDER 22rule 57 provides for the notification n of sale

ü       ORDER 53 provides for the application for Judicial  review

2.Right to know the evidence against him. Every person before an administrative authority, exercising adjudicatory powers has right to know the evidence to be used against him.. A person may be allowed to inspect the file and take notes. This component is operationalized  by

ü       ORDER 11 and1 of the civil procedure rules2010,Which provides for pre-trial conferences. 

3 Right to present case and evidence. The adjudicatory authority must provide the party a reasonable opportunity to present his case. This can be done either orally or in written. The requirement of natural justice is not met if the party is not given the opportunity to represent in view of the proposed action.

This component is operationalized  by

ü       ORDER 18 provides for hearing of suit and examination of witnesses.

3 Right to counsel. For sometime the thinking had been that the lawyers should be kept away from the administrative adjudication, as it saves time and expense. But the right to be heard would be of little avail if the counsel were not allowed to appear, as everyone is not articulate enough to present his case. In India few statutes like the Industrial Disputes Act, 1947, specifically bar the legal practitioners from appearing before the administrative bodies.

This component is operationalized  by

ü       ORDER 9 and1 for representation by an advocate or in person.

CONCLUSION

The rule of fair hearing must be followed to prevent  miscarriage of justice. If an accused is punished unheard, the purpose of law is defeated. The adjudicatory authority does not know whether the accused is innocent or not. What if the accused is punished unheard and later he turns out to be an innocent?

HOW TO LEGALLY BUY LAND IN KENYA

Hallo Wakili,

My name is Koech kindly advise me on the process entailed on the disposition of land.

Thank you Bwana for your question Koech well  i wish to advice you as follows;

1.      When  purchasing land a principle known as Caveat Emptor which literally means buyer be aware is applicable, as such before buying land an investigation on the title must be conducted this search is two fold namely; official search on the title and physical visit on the property. The search is critical so as to avoid buying property which is defective in terms of title and quality.

2.      The law provides that any disposition of land that is; purchase or sale of land must be in writing failure of which such transaction becomes void. It therefore follows that any purchase or sale of Land must be reduced into a written sale agreement. This was not the case prior 2003 as then the law provided that any disposition in land may be evidenced in writing or by possession.

3.      Once a search is conducted and the title verified the parties should agree and execute a sale agreement, normally the purchaser pays a deposit of 10 per cent and the balance on completion of the sale.

4.      On completion the purchaser should provide the balance and the vendor should provide the following documents;

a)      Original Title Deed.

b)     Executed but undated instrument of transfer of the property in favour of the Purchasers.

c)      Consent to transfer from the relevant Land Control Board(if the land is agricultural)

d)     Rates Clearance Certificate valid for at least 30 days from the date of its delivery to the purchasers.

e)      Vendor’s passport size photographs, copies of Pin Certificate and I/D cards

f)       Any other document necessary or as may be required by the Purchasers’ Advocate for the effectual completion of the transaction.

Once the completion is complete, then the purchaser should proceed to effect the transfer so that the title can come out in his names.

I hope you find this helpful

OWNERSHIP OF LAND IN KENYA BY FOREIGNERS

Article 65 of the Constitution provides that a non citizen cannot own a freehold estate but can own a leasehold estate for a period of 99 years. The Kenyan Constitution and the Lands Act (Act No. 6 of 2012) and the Land Registration Act (Act No. 3 of 2012) provide that foreigners or non-citizens can only own land under a leasehold tenure not exceeding ninety nine (99) years.  In other words, it is only Kenyan citizens who can hold land on freehold tenure basis. 

Further the drafters of the constitution realized that foreigners can incorporate companies and trusts and own land through these entities and therefore Article65(3) (a) and (b) of the constitution provides that for  a company to own a freehold it must be a company wholly owned by Kenyans and for a trust  the trustees must hold the land for people who are citizens.

It is important to note that, under the Land Control Act (Chapter 302 of the Laws) of Kenya, a non-citizen can only own agricultural land if it is an initial grant from the Government or after obtaining a presidential exemption to acquire the land. This is because the Land Control Act provides that agricultural land can only be purchased after consent has been granted and this consent cannot be granted to foreigners or private companies purchasing land.

From the above provisions of the law it follows that a foreigner cannot purchase a freehold in Kenya but can purchase a leasehold for a period not exceeding 99years and if he purchases a freehold, then the law presumes that the freehold has been converted into a leasehold, which conversion cannot be reversed even when the land is now sold to a citizen.

It therefore follows that a foreigner cannot purchase a freehold but he can have his interests in a freehold protected in the following ways;

1. By registering a company owned by Kenyans and become one of the directors and thereafter the company should buy the freehold and since he is a director it cannot be sold without his consent.

2. By becoming a debenture holder in a company where the security offered to him is the freehold, that is; gets into a lending agreement (debenture) with a new or existing company, and the money lent is used to purchase the freehold and thereafter the freehold is used as a security in favor of the foreigner as a debenture holder.   

How to Remove A Stubborn Company Director Legally

Dear Chege Kamau,

My name is SETH, in the course of my business I registered a company and included my friend  MWANGI, as a shareholder and director, since registration my friend has never contributed anything and now he is causing problems in the coming and always pulling my company down.

Please advise me on how to remove him?

ADVISE
Thank you Mr Seth for your question.

Well it is important to note that a stubborn director can bring down a company, by causing wrangles and friction in the board. This might eventually cause the Winding Up of The Company ie legally killing the company, on grounds of deadlock in the management  

When you are in total disagreement, such a director can also claim a share of the company as such he should be removed as early as yesterday.

Mr  Seth, you however need not worry as Kenya is a rule of law country, which provides legal solutions to our problems. Thus when you want to remove a director from your company this is how to go about it legally.

1.First and foremost you need to understand that   a director of a company is an
officer of the company as such he must be removed with due regard to
the law, he therefore can be removed as follows;
a)     Serve the director with a special notice of at least 28 days.
b)    Convene a meeting.
c)     Give the director an opportunity to be heard or explain himself.
d)    Pass a resolution to remove him, if the majority supports the
resolution then he is validly removed.
e)     After removal, the registrar must be informed of the changes by
filling FORM 203A.
f)      If he does not attend the meeting and there is evidence of
service, then you pass resolution.
2.      Please remember that the removed director can challenge the removal in court,
but the majority rule will always prevail unless he proves fraud or
oppression.
3.   Lastly kindly note that in the  alternative if the directors of a company are in good
relations then the directors and or shareholders can execute transfer form, affidavit and a letter indicating that there are no longer interested to be shareholders or directors of the company, then the same should be filled with the registrar. This should be done by your Advocate.

From the foregoing it is clear that the company will in most cases require at least three persons, so that majority can dominate in the board as such if the company has two directors or shareholders, then you should bring one or two shareholders or directors into the company by transferring part of the shares to the new persons, this can also be done by your advocate.

I hope you will find this advice helpful and I wish you all the best.