2.1 Introduction
A person is defined is defined as an entity or being which is recognized by law as having certain defined rights and obligations. Such an entity or being has said to be a legal person. Legal persons are divided into two namely;
- Artificial persons
- Natural persons
An entity which` is recognized as a person is said to have a legal personality. i.e. it has attributes which are recognized by law as constituting a person. Examples include human beings (natural persons) and corporations (artificial persons) .These have legal personality to the extent that they each have their own rights and obligations recognized by law
2.2 Artificial Persons
Artificial persons may be corporations or unincorporated associations.
2.2.1 Corporations
A corporation may be defined as an association of persons binded together for sole particular object, usually carry on business with a few of profit. If other words a corporation is an artificial person created with by law with capital divided into transferable shares and with limited or unlimited liability possessing a common seal and perpetual succession. The corporation has, therefore, ` legal personality of its own distinct from that of its members. The individual members have rights and liabilities of their own apart from those of the corporation. The corporate body is different in that it has perpetual succession, it never dies and has a common seal by which to authenticate its acts. The members may change, but the corporate body does not.
Types of Corporation
There are basically two types of corporation: corporation sole and corporation aggregate. The two differ both in the manner of their creation as well as their membership and also in their operation
- Corporation sole
corporation sole is one which consists of one human member at a time, such member being the holder of an office which is held in succession by one person at a time. Some corporations sole are creatures of the common law, e.g. the office of a bishop. There cannot be more than one bishop in a `diocese at the same time and when a particular bishop dies as an individual, his office never dies and continues in existence with another bishop as a successor. Other corporation sole are created by constitution or any Act of Parliament e.g. the Office of the President or the Office of the Pubic Trustee. - Corporation Aggregate
Most corporations are corporations aggregate. These consist of two or more members at the same tire. Basically, there are two types of corporation aggregate operating in Kenya. These are statutory corporations and registered companies.
Creation of Corporations
A corporation can be created in the following to ways:
- By act of parliament
The corporations can be created by the Act of Parliament in Kenya. The state corporations are% created by this method. The main examples of such corporations are: Kenya railways, Kenya airways, Kenya Meat Commission, Pyrethrum Board of Kenya, Coffee Board of Kenya e.g. Such corporations owe their legal existence to a statue. A statue creating the corporation gives it a name, stipulates its composition, and prescribes its powers and duties. The powers of these corporations are limited to those which are expressly conferred by the acts. The powers of statutory corporation can be extended or limited by statutes. These can be also dissolved by statutes. The statutory corporations are legal persons. They can sue and be sued. They can buy and sell property. - By registration under companies act
The registered companies are created by registration under the companies act. These are also know as limited company comes into existence by complying with the provision of the companies act (cap 486) a limited company may either be private or public limited company. A private limited company can be registered by two or more persons but it is not allowed to call upon the public for funds in the form of shares or debentures. A public limited company can be registered by seven or more persons and it can offer its shares to the general public freely. In Kenya, the limited companies are formed according to the companies act (Chapter 486). This act is based on companies act 1948 of UK.
2.2.2 Unincorporated Associations
An incorporated association is one which has no corporate status is one which has no corporate status i.e. it has no legal personality and cannot , therefore, own property or enter or enter into contracts or sue or be sued in its own name. Such associations include clubs, societies, trade unions, partnerships e.t.c. These associations consist of groups of individuals. The property owned by such associations is regarded as the joint property of all members although this property is held on the behalf of all members by trustees. Any contract entered into by a member on behalf of the association is regarded as the contract of that member. If a committee has
committed a tort then the committee members are responsible.
1. Partnerships
Partnerships are incorporated associations. In Kenya all partnership are formed in accordance with partnership act (Cap 29). Section 3(1) of this act defines partnership as the relationship which subsists between in common with a view of profit. In a partnership business, two or more persons jointly run a business. The liability of the individual partner is unlimited unless the partnership agreement provides for any limitation. A partnership consists of not more than twenty persons except in certain cases e.g. practicing solicitors, professions accountant and members of the stock exchange where this figure may be exceeded. Normally, the number of partners in a partnership business varies from two to five. In the case of banking business, the number of partners is limited to ten.
The name of partnership must be registered first under the Registration of Business Names Act (Cap. 499). The formation of a partnership is not very complicated. The partners may sue and be sued in the name of their firm, but if they sue in the firm’s name they can be compelled to disclose the name and address of every members of the firm. If sued in the firm’s name they must enter an appearance in their own name individually but subsequently proceeding continues in the name of the firm.
2. Trade Unions
A trade union is the association of laborers. It has been defined by Prof. Web in the words, “A trade union is a continuous association of wage earners for the purpose of maintaining and improving the conditions of their employment. Trade unions are also unincorporated associations. All the trade unions in Kenya are established according to the provisions of Trade Unions Act (Cap 233). This Act defines a trade union as “an association or combination, whether temporary or permanent, of more than six persons, the principal objects of which are under its constitution the regulation of the relations between employees and employers, or between employees and employees.”
Although a trade union is an unincorporated association but it may sue and be sued and be prosecuted under its registered name. This gives the trade union a form of corporate personality. It is done so as to facilitate any criminal and civil proceeding. Section 27 of the Act provides that:
(1) A registered trade union may sue and be sued and be prosecuted under its registered name.
(2) An unregistered trade union may sue and be sued and be prosecuted under the name by which it has been operating or its generally known.
Section 25 of the Act provides that every trade union shall be liable on any contract entered into by it or by an agent acting on its behalf. This discussion proves that the trade unions have been given certain rights and privileges which are not given to other unincorporated associations. In spite of this fact, they are not separate legal entities of their own and cannot be treated as corporations.
2.3 Natural Persons
Discussed below are the provisions of the law of persons on various natural persons.
- Minors
A minor is also known as an infant. He is a person who is below the age of majority. A person who has attained the age of majority is a major or an adult. The Age of Majority Act (Cap 33) provides that a person shall be of full age and cease to be under any disability by reason of age on attaining the age of eighteen years. The infants can sue and be sued in tort. The age of criminal responsibility is at the age of eight years. An infant is not eligible to vote until he has attained the age of eighteen years and whose name appears on the register of voters (Section 43(1). Constitution of Kenya). An infant can own personal property. As regards the immovable property, an infant’s name can be entered in the register as the owner of registered land (Section 113(1) of the registered Land Act (Cap 300). With exception of this right, an infant can not own immovable property. Minority is a disability in the sense that there are certain things which a minor can not do or be made liable for e.g. a minor cannot get a driving license. Special rules governing the minors in respect of contracts, property, succession, liability in torts and other areas of law, will be dealt with in their respective places in the chapters that follow. - Legitimation
A legitimate child is a child who is born within the wedlock (lawfully married) of the parents. On the other hand, an illegitimate child is a child who is born outside wedlock. Legitimation is the process by which an illegitimate child becomes legitimated. It is brought by the subsequent marriage of the parents of a child who was born illegitimate. Thus, if A and B, being unmarried, beget a child C, C is an illegitimate child; but if A and B subsequently get married, C is said to be legitimated and he thereby becomes a legitimate child. The Legitimacy Act (Cap 145) provides that an illegitimate child can be legitimated by the subsequent marriage of his parents. Section 5 of this Act provides that an illegitimate person after becoming legitimate is entitled to take any interest:
- In the state of an intestate dying after the date of legitimation, or
- Under any dispution coming into operation after the date of legitimation; or
- By descent under an entailed interest created after the date of legitimation
He is treated as legitimate person as he had been legitimate. There is only one limit to this right i.e, when property devolves on children and the question of seniority arises, a legitimated person is deemed to have been born on the date of his legitimation.
Under the Law of Succession (Cap 160), the term child also includes an illegitimate child. This in effect gives an illegitimate child the same claim on his father’s estate as a legitimate child. Under the customary law, an illegitimate child has the same rights as a legitimate child.
- Adoption
Adoption is the process by which parental rights are transferred from the natural parents of a child to other persons authorized by law. An infant can be adopted so that the relationship between the child and the adopter is similar to that of the parent and child. The adoption is governed in Kenya by the Adoption Act (Cap 143) An adoption order has the effect of vesting in the adopter all rights, duties, obligations and liabilities which were previously vested in the parent(s) or guardian(s) of the adopted child. And after adoption, the adopter becomes responsible for the custody, maintenance and education of the adopted child, and he has a right to consent or dissent to the marriage of the adopted child. Indeed, the adopted child is much in the same position as a child born to the adopter in lawful wedlock even in matters of family settlements and inheritance. The infant who is adopted will have also the same rights to the adopter’s property as if he were his real child. A resident magistrate’s Court has the jurisdiction to hear and issue adoption orders where all the consents required, have been given and where the adoption case is straight-forward. In other cases, the High Court makes Adoption Orders. Any person aggrieved by the making or refusal of an adoption order can appeal to the Court of Appeal. - Guardianship
An infant’s interests are normally protected by his parents. Where an infant has no parent there is need for a guardian to play this role. An infant whose interests are looked after by a guardian is known as a ward. The law relating to the guardianship and custody of infants is contained in the Guardianship of Infants Act (Cap 144).
Section 3 of the Act provides that:
(1) On the death of the father of an infant, the mother shall be the guardian of the infant, either alone or jointly with any guardian appointed by the father. When no guardian has been appointed, the court may appoint a guardian to act jointly with the mother.
(2) On the death of the mother of an infant, the father shall be the guardian of the infant, either alone or jointly with ant guardian appointed by the mother. When no guardian has been appointed, the court may appoint a guardian to act jointly with the father.
(3) Where an infant has no parent, no guardian of the person and no other person having parental rights with respect to it, the court, on the application of any person may appoint the applicant to be the guardian of the infant. The court may remove guardians, if it is deemed to be in the welfare of the infants. The court has the supervisory powers of control over a guardian. A guardian exercises control over an infant and is responsible for his education, maintenance and welfare. For example, before an infant between the ages of sixteen and eighteen years can marry, the consent of the guardian is required. A guardian has power over the estate and the person. The guardian must have regard to the welfare of his ward.
- Mentally Disordered Persons
A mentally disordered person is also known as a person of unsound mind. Like a minor, he lacks capacity to do certain things. The insanity affects a person’s legal capacity on many ways. The law recognizes that such persons may be exploited or taken advantage of and that some measure of protection is required. The mental Treatment Act (Cap 248) provides some measure of protection, treatment, care of mentally disordered persons and the custody and the management of the property of such
persons.
A mentally disordered person is subject to certain disabilities. These are as under:
- He does not have the right to vote.
- A marriage contracted by any person of unsound mind is not valid [Matrimonial Causes Act Chapter 152, Section 14(1) (f)].
- Insanity is a defense to a prosecution for any crime, although the accused must prove that he was insane at the time the crime was committed.
- The contracts of mentally disordered persons are voidable at the option of the mentally disordered persons.
The mental Treatment Act (Cap 248) requires that a person of unsound mind must be admitted to a mental hospital. Any such person may be received as a voluntary patient into a mental hospital if he has attained the age of sixteen years. Any person under that age can be received as a voluntary patient if a parent or guardian is so desirous. A magistrate can also make a reception order to admit a person of unsound mind into a mental hospital. This order is made if it is proved that the person is of unsound mind. It also requires the report of a medical practitioner. Under this Act, the court may also make orders for the management of the estate of any mentally disordered person and for the guardianship of such person by any near relative or by any other suitable person.
2.4 Provisions of the law of persons on Marriage
Marriage is said to be a contractual relationship. It is viewed as a contract between a man and his wife. It gives rise to certain rights and duties.
The Law of Kenya recognizes the following four systems of marriage:
- Statutory Marriage
- Customary marriage.
- Hindu marriage
- Islamic marriage
The parties to a statutory marriage must each have capacity to marry. This capacity is determined by their age, sex and marital status. Except in the case of a widower or a widow, marriage age is generally 21 years. A person below this age can only contract a marriage with the consent of his father, or the mother in case the father is dead or of unsound mind or absent from Kenya. As regards sex, the parties to the marriage must be male and female. The persons of same sex have no capacity to marry. Regarding marital status, each of the parties to the intended marriage must be single. A marriage is null and void if it is celebrated while the former husband or wife of either party is still alive and the previous marriage is till in force. It makes no difference that the previous marriage was celebrated under customary law. Finally, a marriage is null and void if the parties to it are within the prohibited degrees of consanguinity or affinity. This means that the close relatives, such as brothers and sisters have no capacity to marry each other. The persons of unsound mind, i.e. lunatics and idiots, have no capacity to marry.
Citizen or Nationality
Nationality or citizenship refers to a person’s political allegiances to some state in return for which he is afforded protection by the state. Each independent state has right who are the nationals or citizen. The law relating to citizenship and the nationality of Kenya is contained in the constitution of Kenya and the Kenya citizenship Act (Cap. 170)
2.5 Provisions of the law of persons on Acquisition of Citizenship
Citizen of Kenya may be acquired in four different ways. These are 1) by birth, 2) by descent, 3) by registration, 4) by nationalization
These are explained below
- By Birth
Citizen by birth is determined by the fact of being born in Kenya and also by citizenship of a person’s parents or grandparents. All persons born in Kenya who on 11th December 1963 were either citizens of the United Kingdom or British protected persons automatically became Kenyan citizens on Independence Day (12th December 1963) if either of their parents had been born in Kenya. A person born in Kenya after 11th December 1963 shall become citizens of Kenya. - By descent
A person born outside Kenya after 11th Kenya after 11th December 1963 becomes a citizen of Kenya on the day of his birth if on that day his father is a Kenya citizen. This citizenship is by descent only if at that time of his birth his father was Kenya citizens other than a citizen by descent born outside Kenya do not acquire the country’s citizenship from him or his father. Thus paternity is given prominence in the determination of citizenship by descent. - By registration
Any woman who marries a citizen of Kenya may apply for registration and be granted citizenship. Similarly, a person of full age who is a citizen of a commonwealth country or a specified African country who has been ordinarily resident in Kenya for five years may be registered as a Kenya citizen upon making an application for this purpose. - By naturalization
Section 93 of the Kenya constitution Act provides that an alien may apply to be a citizen and he may be granted with a certificate of naturalization if:
- He is of full age
- He has resided in Kenya for one year before the application
- He has resided in Kenya four a total of four years during the seven years before the one year in paragraph (b)
- He is of good character;
- He has an adequate knowledge of the Swahili language; and
- He intends to remain a resident, if naturalized
Note: The grant of citizenship by naturalization is purely discretionary
2.6 Loss of Citizenship
There is two ways in which citizenship can be lost. These are explained under
1. By Renunciation
A citizen of Kenya who is also a citizen of some other country, is free to renounce his Kenya citizenship but he may do so only if he is of full age and capacity. For renunciation citizenship, he is required to make a declaration in prescribed manner. He ceases to be a citizen of Kenya upon registration of the declaration. A person who is a citizen of Kenya and also some other countries at the age of twenty one ceases to be a citizen of Kenya at the age of twenty three unless he has renounced the citizenship of that country.
2. By deprivation
The Kenyan citizenship also may be lost by deprivation. But the deprivation applies only to those citizens who acquire Kenya citizenship by registration or naturalization. A person may be deprived from citizenships in following cases:
- Has shown himself to be disloyal towards or disaffected towards Kenya;
- Has during the war in which the country was engaged, traded with or otherwise assisted the enemy.
- Has, within five years of registration or nationalization been sentenced for more than twelve months imprisonment.
- Has resided continuously abroad for seven years and has neither been in service of Kenya or an international organization which county is a member, nor registered annually at a Kenya consulate his intention to retain the citizenship or
- Has obtained his registration or naturalization by fraud, false representation or concealment of a material fact.
2.7 Provisions of the law of persons on Domicile and Residence
A person’s domicile is the place where he permanently resides with an intension to remain. Mere residence is not sufficient. Animus manedi i.e. an intention to permanently remain must be established. In order to establish the domicile of a person, the following two elements are taken to consideration.
- Actual residence
- ‘Animus Manedi’ i.e. the intention to remain in that place or country Where these two elements co-exist, a person is said to have a domicile in that country. For example, a Ugandan citizen may decided= to live permanently in Kenya. In that case Ugandans acquires a domicile in Kenya. The law relating to domicile in Kenya is contained in the “The laws of Domicile Act (cap. 37).”
There are three types of domicile: origin, choice and dependence. These are explained as under:
1. Domicile of Origin
A person acquires his domicile of origin at birth. A legitimate child inherits its father’s domicile (S.3), an illegitimate child inherits its mother’s (S.3) and under common law a founding (i.e. an abandoned child) has its domicile of origin continuous until he acquires a new one (S.4)
2. Domicile of Choice
‘A man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin.’ (S.8) He is then said to have acquired a domicile of choice, where upon the domicile of origin is relinquished. He may however later resume his domicile of origin. A domicile of choice continuous until the former domicile is resumed or until another domicile is acquired. It is important to note that the only person of full age and capacity may acquire the domicile of choice. For example a Kenyan may decide to live in Tanzania permanently. In this case, he acquires Tanzania domicile though he remains a Kenyan citizen.
3. Domicile of Dependence
Domicile of dependence is also sometimes described as dependent domicile. A person is said to have this kind of domicile if his domicile necessarily changes with that of another person on whom he is dependant. A woman acquires the domicile of the husband on marriage. An infant acquires the domicile of the father.
Domicile and Residence
A place where a person lives, whether permanently or temporarily, is his residence. A person’s residence determines his liability of taxation, i.e. he is subject to the place where he resides; it also determined his status in war time-a person who is resident in a country with Kenya is engaged in war is automatically an enemy. Residence as such must be distinguished from domicile. A mere temporary stay is sufficient to constitute one a resident of a particular area but to be domiciled in a place one must intend to permanently remain there; residence is just one of the two elements required to prove domicile. There are two reasons which make it important to draw a distinction between the two; first to determine the law applicable and secondly to determine whether the court has jurisdiction in a
particular case. As already seen, a person’s family relations and movable property are determined by the law of his domicile; they are not determined by the law of the place where he might be temporarily resident. Thus, if a domiciled Englishman takes up residence in Kenya dies in Kenya living movable property succession to the property will be governed by the government of England and not the law of Kenya. Regarding jurisdiction, courts usually have jurisdiction over persons who are resident within their territorial jurisdiction.
Domicile and Nationality
Domicile must be distinguished from nationality. While nationality is referable to as political system in the sense that a person owes his allegiance to the state that he is a national domicile on the other hand is referable to as a legal system: a person’s family relations in these matters like marriage and divorce, legitimacy etc, and also his movable property are governed by the laws of his domicile. Secondly, it is possible for a person to have a no nationality at all e.g. where he is rendered stateless upon being deprived of his citizenship; but every person must have a domicile at any one time. Thirdly, it is possible for a person to have dual citizenship, i.e. to be a citizen of more than one country at the same time but no one can have more than one domicile at the same time.
2.8 Provisions of the law of persons on proceedings against the State
The government may commit a civil wrong, just like an ordinary individual. The law relating to proceedings against the state is governed by the Kenya Government proceedings act (Cap.40). An aggrieved person has a right to sue the government for the act and defaults of its servants and agents. The government is liable for its own wrongful acts as well as those committed by its servants if the servant himself would have been liable in the first place.
Section 4(1) of this Act provides that the state may be sued in tort in the following cases:
- In respect of the torts committed by it servants or agent.
- In respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and
- In respect of any breach of the duties attaching at common law of the ownership, occupation, possession and control of property:
Summary for the topic
- Definition of legal personality
- Natural and artificial persons
- Rights and obligations of artificial and natural persons as provided by the law of persons
- Acquisition and loss of citizenship
