The epitome of the battle over parentage in Kenya was no doubt in the Gilbert Deya Ministries saga.
The saga, first uncovered by the United Kingdom Police and Investigators, led to the filing of charges in a Family Division Court in the United Kingdom against Gilbert Deya, a Kenyan citizen resident in the United Kingdom.
This was in relation to a one-year-old boy allegedly claimed by Deya as his child.
After intensive investigations and submissions before a Family Division Court in the United Kingdom, Justice Ryder, the sitting umpire therein, made findings against Gilbert Deya.
The Judge in appreciating the fact that motive is one of the basic human avarices, ordered that the biological parents of the child be traced.
Kenyan courts, like the courts in all Common Law jurisprudential settings, use their judicial precedents. Also known as case law, judicial precedent refers to law pronounced by the judges and this explains the common reference to judge made laws.
Judicial precedents are usually found in law reports of the respective jurisdictions. This application of judicial precedents stems from the legal doctrine of precedent.
The principle behind the doctrine of precedent is that in each case, the judge applies existing principles of law by following the example or precedent of earlier decisions. In this way, the judge may expand and develop the law.
Pursuant to the said principle underlying this doctrine of judicial precedent, like cases should be decided in a like manner, unless the purportedly similar case has been otherwise distinguished by a party thereto.
The phrase ‘like cases’ in this sense has been used to mean similar cases, in the sense of the facts of the case, or in the sense of the cause of action therein, notwithstanding the respective parties thereto.
The principle has been widely applied in England jurisprudence, with a logical principal rationale of ensuring certainty in the legal process.
Other advantages that may be attributed to case law include but are not limited to flexibility and growth, practicability and the detailed nature of case law as deduced from many judgments on a particular legal principle.
Kenya being a former British colony, has widely applied the same principle in its courts of law, so that decisions of its higher courts are usually in principle binding on the lower courts.
The principle has characterised Kenyan jurisprudential setting so that advocates in Kenyan courts are usually expected to submit judicial authorities in support of their points of reasoning.
The umpires sometimes go as far as failing to make a determination as to certain noble issue raised by such advocates if the same are not supported by decided authorities.
This thus shows how significantly the doctrine is applied in the Kenyan legal process.
There is considerable similarity of facts and circumstances between the England trial of Pastor Deya and that of his spouse here in Kenya.
What then may be the effect of this decision of Justice Ryder of the foreign court in the Kenyan legal setting?
The general principle has been that courts do not have extraterritorial jurisdiction, meaning that a decision made by a court in one country has no application in the courts of another.
There is, however, one exception so that commonwealth countries have a common tradition, having been at one time British colonies.
The Kenyan legal system having been modelled on the English legal system, there is a similarity in the principles of law applied in these two countries.
Because of this, the decision of one commonwealth country like England, though not binding on Kenya, is of persuasive authority.
In the premise, Justice Ryder’s ruling in the almost similar case could be of persuasive authority in the pending Kenyan case to the extent that the court in Kenya may consider it when making its final determination.
But it must, however, be appreciated that the said decision is not binding on the Kenyan court but only of persuasive authority in trying to reach a just determination in the Kenyan case.