Legal Personality
In ordinary language the term person connotes the idea of a human person. In law the term ‘person’ is used in a wider sense to include not only human beings but certain non-human entities. In its legal sense the term ‘person’ thus includes:
- natural persons and
- artificial persons.
Natural persons are human beings who are capable of exercising rights and are subject to obligations. In Kenya, like anywhere else legal peronality attaches to a human being on birth and ends with death.
Corporations.
Corporations are artificial persons created by law to fulfill certain functions. Some corporations have only one member and are known as corporations sole, whilst others have a number of members and are known as corporations aggregate.
A corporation sole is an official post that is filled by a natural person who changes from time to time. Examples include the President of Republic of Kenya a bishop, and the Public Trustee. The property that belongs to a corporation sole is never without an owner when the holder of the post dies, since property belongs to an artificial person which cannot die, and it will be available to the next occupant of the post.
Corporations aggregate fall into one of two classes; corporation created by a statute (known as statutory corporation), usually connected with the state in some way such as the Kenya Meet Commission, and corporations created under the Companies Act, known as registered companies.
The essential features of a corporation is that it is a legal entity able to hold property and carry on business in its own name, separate and distinct from the members who compose it and act on its behalf.
Secondly, a corporation continues in existence irrespective of the death, retire¬ment or bankruptcy of any of its members. Once a corporation has been created it has perpetual succession.
Ultra Vires Rule. Corporations may carry on activities, such as trading, as come within their powers. Any act done by a corporation in excess of powers which are expressly or impliedly authorized by the Parent Act (in case of statutory corporation) and in the objects clause of the memorandum of associatation (in case of registered company) is ultra vires and void. Thus if a company is formed for manufacturing and dealing in railway machinery may do ail things necessary to achieve this purpose. But it could not undertake to make a railway line.
Unincorporated Associations
Unincorporated associations do not have a distinct legal entity of their own separate from the members themselves. In the eyes of law they are group of individuals, and the law disregards their existence as a separate entity. Thus, if five men form an unincorporated association (partnership) and the association is sued for debt, the individual men who comprise the association‘will be jointly and sever¬ally (separately) liable for its debts.
There is wide variety of unincorporated associations. Many traders form them¬selves into an association without going through the formalities of becoming a registered company. A football club and a trade union are examples of unincorpo¬rated associations.
In Brown v Lewis 1896 the committee who had authorised the work was held liable instead of all the members of the club.
Partnerships.
A partnership is ` the relationship which subsists between persons carrying on a business in common with a view of profit’. Unlike the formation
of a registered company it may come into existence without any formal agreement. The relationship between partners may be created orally or in writing, and it may also arise from the conduct of the parties concerned. However, it is always advisable to draw a partnership deed, defining the rights and obligations of the partners.
Although a partnership is not a legal person all partners are taken to be the agents of the partnership. The partnership may sue and be sued. The number of persons associating in a partnership may not exceed twenty.
Formation of registered companies. Section 4 of the Kenya Companies Act, provides that any seven or more persons, or where the company to be formed
is a private company, any two or more persons, associated for any lawful purpose may by subscribing their names to a memorandum of association form an incorporated company. The promoters of a company must produce to the Registrar of Companies the following documents:
- The memorandum of association.
- The articles; of association.
- A statement of the nominal capital of the comany.
- A list of directors with their written and signed consent to act as directors, and to pay for qualification shares, if any.
- A statutory declaration by the proposed secreatary or director that all the requirements of the Comapnies Act have been complied with.
Nationality
A person’s nationality is his status as a citizen or member of a particular state
to which he owes allegiance. In return for the duty to pay taxes and give support, he is entitled to the protection of that state. Some people have no nationality and are said to be ‘stateless’. Others have more than one nationality; a position which might arise, for example, where parents are of different nationalities. The law of Kenya, however, does not recognize the concept of dual nationality.
Domicile.
A person’s domicile is the country which he regards as his permanent home, and two elements have to be considered, namely actual residence in a country and intention of remaining there.Domicile differs from nationality
in that every person must possess a domicile but no person can possess more than one. Domicile may be either of origin which is acquired at birth, dependent domicile possessed by infants and married women, or domicile of choice, where a person has changed his domicile of his own volition.
Citizenship of kenya may be acquired in the following ways:
- By birth. Any child born in Kenya acquires Kenyan nationality provided one of his parents is a Kenyan citizen.
- By descent. Any person born anywhere outside Kenya on after 11th December, 1963 becomes a Kenya citizen, if at the time of his birth his father is citizen of Kenya.
- Any woman who has been married to a Kenya citizen becomes entitled upon making an application to the Minister responsible, to be registered as a citizen of Kenya.
- By naturalisation. The applicant must be of full age (ie. 21 years) and capacity, of good character, have sufficient knowledge of Swahili language , and have been resident in Kenya for five out of the previous seven years.
The loss of nationality.
The Minster of Home Affairs may deprive a naturalised person of his nationality if his conduct shows that he is disloyal to Kenya or during any war in which Kenya was engaged, he unlawfully traded or communicated with an enemy.
Adoption. Adoption creates a legal relationship between adopter and child almost equivalent to that of parent and legitimate child. Adoption is governed by Kenya Adoption Act. The Act provides that a minor or an infant may be adopted by one person (male or female) or jointly by a married couple. Before the adoption order is allowed, the court must be satisfied that the following requirements are fulfilled:
- The consent of the child has been obtained if he is of sufficient age, and in case he is too young, the consent of his parents or guardian is required.
- If the parents or guardian have ill-treated or neglected the child, the High Court may dispense with their consent.
- The applicant and the infant or minor are both domiciled in Kenya.
- The applicant or joint applicants must be at least 25 years and at least 21 years older than the infant.
- The father or mother of the infant can apply for adoption irrespective of age.
Legitimation.
The law of legitimation is contained in the Legitimacy Act (Cap. 145) and under this Act, a child born illegitimate may become legitimate on the subsequent marriage of his parents.
Guardianship. The law of guardianship has been intended to offer protection to the person and the property of the infant. The Guardianship of Infants Act (Cap. 144) provides that a guardian is responsible for the care of the infant until he reaches full age. The High Court under the Act, has the power to remove any existing guardian for any justified reasons or to appoint another guardian in substitution for, or together with an existing guardian.
Guardian ad litem. A guardian ad litem is a person appointed by the court to defend an action or other proceedings on behalf of an infant or person under disability. The duties of such guardian are:
- To interview the applicants and obtain from them all relevant infomation about their home conditions, means and health.
- To interview the natural parents and anyone who has taken part in arranging the adoption.
- To obtain a report from the local authority and adoption society.
- To ensure that all consents given to the making of order have been freely given.
Marriage and Divorce.
Marriage and divorce are the most important areas in which customary law is still widely applicable. Basically, there are three kinds of marriage recognised :
- Marriage under the Marriage Act, normally in the Magistrates Court or the office of the District Commissioner;
- Marriage under African custom; and
- Marriage under religious law, such as Hindu and Islamic marriages.
A christian marriage is covered by the Marriage Act, in that ordained priests and Ministers are declared marriage officers under the Act.
Statutory marriage is monogamous, it is therefore an offence under the Marriage Act for anyone to contract a statutory marriage under African Customary law. Again, the Act specifies that it is an offence for anyone already married under customary law to contract a marriage to any other person under the Act.
Marriages under African customary law are potentially polygamous. It is inter-esting to note that the offence under the Marriage Act is not the crime of bigamy as it would be In England. This is an instance of the effect that the existence of customary law has had on the general law. It is a statutory offence for which the penalty is a maximum fine of Shs. 1,000.
The majority of marriages in Kenya are still under the customary law. The salient characteristics of African marriage in its traditional form are:
- that polygamy is allowed;
- that the transfer of what is commonly called ‘bride-price’ is normally an indispensable part of the transaction; and
- that a customary marriage is usually capable of being dissolved withoutapplication to a court of law and without the limitations imposed by being compelled to prove grounds for divorce.
The opportunity of contracting a marriage under the general law, i.e. under the Marriage Act is available to Africans and may avail themselves of this; the marriage is thereby a monogamous one. There has, however, been no attempt to legislate for the suppression of polygamy.
Capacity to marriage.
Any person can celebrate a marriage under the Marriage Act. The marriage can be celebrated either in the Office of Registrar of Marriages or in a licensed place of worship. Both parties must have reached the age of 16 years, otherwise the marriage is void. A person under the age of 18 years requires the consent of his parents(or guardian) before he can marry.
An African Christain can marry under the provisions of the African Christain Marriage and Divorce Act, or convert his marriage under customary law to one under the aforesaid Act. In either case, the marriage will be a monogamous one as opposed to the pologamous one under the customary law.
Void marriages.
A marriage will be void if either party lacks capacity to con¬tract or if the ceremony is formally defective. The following are the examples of void marriages:
- The parties are related within the prohibited degrees.
- Either of the parties is under 16.
- Either of the parties is already married.
Marriage under native law or custom.
Any person who is married under the Marriage Act, or otherwise marriage is declared by this Act to be valid, shall be incapable during the continuance of such marriage of contracting a valid marriage under any native or customary law. But nothing in this Act contained shall affect the validity of any marriage contracted under any native law or custom.