Exclusion Order Under the Law of Succession: What Does It Mean for A Litigant?

The Statute Law (Miscellaneous amendments) Bill 2018 proposes to amend the Law of Succession Act to give the Court handling a succession dispute the option to exclude persons who are not members of the Court or not parties to the case relating to administration of a deceased person’s estate. It also seeks to give the Court the discretion to prohibit publication of any matter arising in case in respect of which an exclusion order is made.

The context of that order is such that some succession cases are likely to attract a lot of public interest or curiosity owing to perhaps the status of the deceased person at the time of his/her death or the high value of the estate of the deceased or dramatic feuds between the intended beneficiaries.  Such scenes are not unusual in high profile succession disputes especially in instances where the deceased died intestate - that is died without leaving behind a valid last will and testament.

These proposed amendments come in the wake of a number of cases that have been publicized in various media platforms over the years regarding ongoing succession disputes in Court. One such highly reported case being that of events relating to the Estate of Mbiu Koinange (deceased), whose  court battle has been protracted for the last 36 years.

Of interest is that publication bans in other jurisdictions are most commonly issued when the safety or reputation of a victim or witness may be hindered by having their identity openly broadcasted in the press. Also, in certain instances, vulnerable beneficiaries (perhaps minors or persons with disabilities) need protection from individuals who are prying on the affairs of the deceased’s estate with the view to perhaps disenfranchise them, extort or squander the estate of the deceased.   

With the above in mind, it would be prudent to highlight some of the possible motivations behind the above proposals to the Law of Succession Act.

Safeguarding Court processes

In family law, one of the underlying principles is that a family is the basic unit of any society and thus is entitled to the protection of the law.  Pursuant to Article 159 (2) (c) of the Constitution of Kenya 2010, in exercising judicial authority the Courts are mandated to use alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.  It has become apparent that in most instances where a succession dispute is publicized, it is likely to fuel hostility between the feuding parties as opposed to aiding an amicable/reasonable and timely settlement of the matter.

In a bid to expeditiously and harmoniously determine various disputes the Judiciary implemented    the court-annexed mediation within the High Courts at the Family and Commercial divisions for certain cases which will have been screened as suitable for mediation. It is instructive however that for mediation or amicable settlement to be achieved there has to be a goodwill between the parties. It therefore goes that the presence of unconnected third parties or the media in certain probate matters is more likely to spark controversies or scandals rather than assist the Court in positively resolving the matter, hence the need for provision of an exclusion order to preserve/if not to salvage the relationship between the parties.

Right of privacy

Article 31(c) of the Constitution of Kenya provides that every person has a right to privacy which includes the right not to have information relating to their family or private affairs unnecessarily required or revealed. In the spirit of that provision a party in a probate matter shall be at liberty to apply for such protection of privacy as the situation may demand and which further demonstrates the need for an express provision of exclusion order in the Law of Succession Act.

Protection of Children

Pursuant to section 76 (5) of the Children’s Act, any proceedings concerning a child, whether instituted under that Act  or under any written law, a child’s name, identity, home or last place of residence or school shall not, nor shall the particulars of the child’s parents or relatives, any photograph or any depiction or caricature of the child, be published or revealed, whether in any publication or report (including any law report) or otherwise. In light of the above provision, one would also appreciate that succession proceedings may also concern minors and thus the court’s express discretion to exclude certain persons from such proceedings or certain publications shall be aligned with the above provision of the Children’s Act.

Having taken the above issues into consideration wouldn’t it therefore mean that any party is entitled to an exclusion order? We think not. The general practice in the probate court is that all matters are dealt with in an open court. However, there are certain instances which would certainly require exclusion orders hence a criteria would be necessary for grant of such order. A case in point is the celebrated Canadian Supreme Court case of Dagenais v Canadian Broadcasting Corp, [1994] 3 S.C.R. 835 in which the Court set out a test (Dagenais/Mentuck test) for a publication ban to be granted as follows:

“…A publication ban should only be ordered when:

(a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and

(b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.”[1]

If the above proposed amendment becomes law, it shall be incumbent upon the Presiding judge granting such an order to take into consideration the rights of the publishing entity and also adopt/establish a suitable criterion, in line with the Kenyan Constitution. Of concern is the likelihood of the Right of Freedom of Expression as enshrined under Article 34 and the Right to information under Article 35 of the Constitution of Kenya maybe violated, as public access to the conduct of proceedings is a fundamental pillar in safeguarding rights and preventing constitutional violations.  However, given that these two rights can be limited under Article 24 of the Constitution, the court shall be compelled to interrogate each case separately prior to granting such an order.

Should you have any enquiries regarding this article or any general queries on the subject matter, kindly contact Jomo Nyaribo,  Partner and Angela Cherono, Senior Associate  MMAN Advocates.

Disclaimer: This article has been prepared for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Nothing on this article is intended to guaranty, warranty, or predict the outcome of a particular case and should not be construed as such a guaranty, warranty, or prediction. The authors are not responsible for any actions (or lack thereof) taken as a result of relying on or in any way using information contained in this article and in no event shall be liable for any damages resulting from reliance on or use of this information. Readers should take specific advice from a qualified professional when dealing with specific situations.

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