kenyan legal magazine

8/13/2019 Kenyan Legal Magazine

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main feature:

DO WOMEN HAVE A PLACE IN

KENYAS JUDICIARY?

Breach of promise to Marry: Its Legality

November 2013 Issue #1

Also inside

Why Rail

and KibakGovernmen

was

SuccessfuJudiciary

watch:

Word from

the Chief

Justice


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Kenyan Legal 2013 Page 2

heres all kinds of Brilliance in the

world; some will give you trophies,

some will fill your bank accounts but

theres a bigger kind of brilliance, that

which is nurtured and practiced constantly to

near perfection, and makes a difference not only

to oneself but to the world abode. By what I mean

not only individually but also in terms of the

whole legal industry as a whole, the Kenyan legal

system is at its prime and the best way to keep

this going is to involve in particular the coming

generation of legal minds, and sometimes its not

until we compare our current achievements with

how things were in the past that we fully

appreciate just how much progress has been

made, and progress, believe me, is what KENYAN

LEGAL is here to make.

I also wish to be particular in appreciating

the committed individuals that contributed

towards this publication; its in not question that

this is your success, and for those who never got

the chance, here it is! Am really thankful, Keep up

you great work! As once stated: The size of your

success is measured by the strength of your

desire; the size of your dream; and how you

handle disappointment along the way this is the

dream and were headed towards Success.

That said, as well as with great happiness

and humility, itsalso with a sense of pride that I

welcome you to the newest success in town, the

very first publication of the KENYAN LEGAL

magazine.

REGARDS,MichaelMichael Opondo O.

Managing Editor,

KENYAN LEGAL


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CONTRIBUTORS

Sheila Mokaya, K.U.S.O.L

Otieno Arnold O., K.U.S.O.L

Caren Kerubo, K.U.S.O.LVictor Kiamba, Advocate of the High Court

Gabriel Pelu, JKUAT

Kenneth Kimathi, K.U.S.O.L

Sylvia Anne A., U.o.N

Henry Omukubi, K.U.S.O.L

Nelson Otieno, K.U.S.O.L

Michael Opondo O., K.U.S.O.L

Whilst every effort has been made to ensure the accuracy of the information in this magazine, the

authors, publisher and editor accepts no responsibility for any loss, financial or otherwise by any

person using this publication

Copyright 2013 by Kenyan Legal

All rights reserved. No part of this publication may be reproduced, distributed, or transmitted inany form or by any means, including photocopying, recording, or other electronic or mechanical

methods, without the prior written permission of the publisher, except in the case of briefquotations embodied in critical reviews and certain other noncommercial uses permitted by

copyright law. For permission requests, write to the publisher, addressed Attention: Permissions

Coordinator, at the address [email protected]

Copyright protected by:

Creative Commons 2013

Cover photo by:Patricia Ngare,

Model/Law Student,

[email protected]

Kenyatta University.


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nside this issueCase Of The Month............................................................................................................5

Third Party Rights In Marriage?.........................................................................................7

The Rule Of Law In Kenya ..................................................................................................9

The Law On Third Party Proceedings ...............................................................................11

Sausage Machines? .........................................................................................................14

Criminal Responsibility For Omissions: Negligence In Scope...........................................16

Do Women Really Have A Place In Kenyas Judiciary?....................................................19

Why Raila And Kibaki Government Was Successful ........................................................21

Where Is Kenya Headed To .............................................................................................23

Legality Of Breach Of Promise To Marry .........................................................................24

Carlas Diaries..................................................................................................................26

The New Constitution And The Youths ...........................................................................27

Legal Positivism: Is It Or Not In Kenya? ...........................................................................29

Tyranny Of The Urgent? ..................................................................................................32

The Law Of Contract: An Introduction.............................................................................33

Criminal Justice And Human Rights: Death Penalty ........................................................36

Judiciary Watch ...............................................................................................................38

Our New Brand IdentityA New Promise To The Mwananchi ........................38

We Dont Take Public Support For The Judiciary For Granted..........................40
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Case of the monthREPUBLIC OF KENZA

IN THE COURT OF APPEAL OF KENZA

AT NAIRI (NAIRI LAW COURTS)

CONSTITUTIONAL APPLICATION No. 20 OF 2012

BETWEEN

MUNGA.APPLICANT

AND

THE HON. ATTORNEY GENERALRESPONDENT

AND

IN THE MATTER OF ARTICLES 10, 20, 22, 29(d), 39, 50, 258(l) and 259 of the

CONSTITUTION OF KENZA

The appellant Joel Munga was 20 years ago arrested, processed, charged and convicted of

murder contrary to section 203 of the penal code, Cap. 63 of the Laws of Kenza. He was

sentenced to death pursuant to section 204 of the said legislation. After ten years of service of

his sentence was mutated to life imprisonment through a presidential decree.

After 19 years of service, new and compelling evidence exonerating the appellant was

discovered. The accused petitioned the court for his release. The prosecution did not raise any

objections against the petition. The Director of Public prosecution observed that a great

injustice had occurred. The appellant is seeking damages to the tune of Kshs. 76 million, for

a lost life.

The High Court rejected the argument that his rights had been violated arguing that there

was no evidence to the effect that the trial was anything but fair and that at the time of his

conviction, the prosecution had diligently demonstrated its case beyond any reasonable

doubt, solely relying on the evidence available.

He appeals to the Court of Appeal inter alia on the following grounds:-

1. THAT the High Court erred in Law in failing to provide remedy for the loss sufferedduring detention.

2. THAT the Court of Appeal declares that monetary compensation in addition to any otherremedies be granted to the appellant.

(The Legal system of Kenza is similar if not same to that of Kenya; this includes the

legislation and rules of procedures before the courts. Also, applicable case law in the Kenyan

Legal system carries the same weight in the Kenza legal system.)


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CONSIDER:

- Maxims of Equity.- D.P.Ps Statement.- Constitutional provisions.- The Evidence Act.

Dear Reader, this column calls for and will appreciate your feedback and thoughts on

the issue(s) raised for discussion. The comments, answers and thoughts will be published in

the next issue of the magazine kindly send them to [email protected] or visit

www.kenyanlegal.blogspot.com

You are also invited to send your case for discussion before 19th

November 2013 for

discussion in this forum.

www.facebook.com/kenyanlegal

www.linkedin.com/kenyanlegal


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LEGAL DISCOURSEWith Michael Opondo O.

The power of the Lawyer is in the uncertainty of the Law

THIRD PARTY RIGHTS IN MARRIAGE?To commence with; the first blush of this legal discourse is theres absolutely no Law in Kenya

that prohibits non-adults (child) of age under 18 from entering into a marital union. As embodied in the

spirit of Article 45(1) of the Kenyan constitution, The family is the natural and fundamental unit of

society and the necessary basis of social order, and shall enjoy the recognition and protection of the

State.And further in Article 45(2), Every adult has the right to marry a person of the opposite sex,

based on the free consent of the parties, emphasis on the word EVERY; the word EVERY leaves a

room for exceptions not unless the word ONLY adults can Marry was instead used which on the

otherwise leaves absolutely no room for exceptions, as it is, every person who is an adult can marry(or

get married), but not only adults can get married.So far here, its no brainer to understand that the

parties to a matrimonial union must not be adults, and adult, just so we are clear, is but a concept and

thus relative from one person to the next, allow me to demonstrate.

As regards to law of Succession, Child is a person born of another, that is, 80 year old Michael

Oduor born of Opondo is but a Child to the later mentioned and thus in reverse, a six day old Michael

Oduor is Adult enough to be included in Opondos will and consequently inherit, as clear as your

understanding. Moving on to the Laws of the Land that form basis in matrimonial unions, an adult is aperson who has attained a majority age of 18 years, as per the constitution, the Sexual offences Act and

the Marriage Act. The rationale behind capacity of 18 years of age is to ensure the parties are able to

make rational decisions and handle responsibility; a view expressed by Pearce J. in Pugh vs. Pugh (1951):

According to modern thought, it is considered socially wrong that a person of age, at which

we now believe them to be immature and provide for their education, should have the stresses,

responsibilities and sexual freedom of marriage and the physical strain of Child birth

Marriage is a contract under statutory Law between two equal parties of Man and Woman, as

husband and wife, in exclusion of all others (Hyde vs. Hyde); and consequently, rules of contract apply

from the onset. Theres Offer and Acceptance, that is, the initial seduction and courtship period

stretching to Engagement-one offered on his knees and the other accepted the ring-, theres

Consideration, that is, the duties and obligations whilst in marriage; consortium, maintenance and the

matrimonial confidence in spouses-dirty linen should remain in the laundry basket-, theres Capacity to

the contract that is the majority age as aforementioned and if things dont work out, theres termination

in Divorce.


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Privity of this Contract has however to be questioned as per section 19(1) of the Marriage Act

which purports that for marriages of parties between the ages of 16 to 21 years old require consent of

parent or guardian. So question is, from the onset that the Parent/guardian is a third party to the

matrimonial contract, i.e. in willfully giving consent of which otherwise no contract would be formed in

the first place, does this mean they remain party to the contract forever and therefore has to be

constantly consulted until death do us part or its termination? Or does the third party lose the position

soon as the two married attain majority age?

So heres the Legal Discourse, whats your course of thought?



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THE RULE OF LAW IN KENYA

By Henry Omukubi

he rule of Law means that

government and its officials,

together with private citizens must

act under the law. The rationale

behind it is the control of the exercise of public

power is by the state by ensuring that it is

exercised within legal limits. The concept of rule

of law is recognized in the constitution of Kenya

2010 under article 10(2b) which lists the national

values and principles of governance as patriotism,

national unity, sharing and devolution of power,

the rule of law, democracy and participation of

the people.

The rule of law is both a legal and a

procedural mechanism and as such it has its

elements which ensure its effectiveness. First and

foremost, it provides for equality before the law

as A.V. Dicey stated:

With us no man is above the Law, but that

here every man, whatever be his rank or

condition, is subject to the ordinary lawlaw ofthe realm

Also provided for by article 27 of our

constitution that:

Every person is equal before the law and

has the right to equal protection and equal

benefit of the Law.

Secondly, the rule of Law requires no man

punished or to be lawfully made to suffer in

bodily or goods except for a distinct breach of the

law established in the ordinary legal manner

before the ordinary courts of the land.

Punishment can only be imposed on someone

who has violated the law. Article 50 (2n) of the

constitution provides:

Every accused person has the right to a fair

trial which includes the right not to be convicted

for an act or omission that at the time it was

committed or omitted was not an offence in

Kenya or a crime under international Law.

Open Laws is another element of the rule of

Law. This means that the Laws should be open so

that individuals are able to access them. They

should not be secret or difficult to locate as this

would not enable the individual be guided by

Law. This is enshrined in the Constitution where it

is provided that the state shall publish and

publicize any important information affecting the

nation [article 35(3)]

The rule of Law further requires that the

courts be accessible to the citizens. This is to

enable the citizens to access justice easily

without any delays evident by virtue of article 48

which states that:

The state shall ensure access to justice for

all persons and if any fee is required, it shall be

reasonable and shall not impede access to

justice

Judicial independence is yet another element

of the Rule of Law. This requires that disputes asto the legality of acts of government are to be

decided by judges who are independent of the

executive. It is provided under article 160(1) that

in the exercise of judicial authority, the judiciary,

as constituted by article 161 shall be subject only

to the Constitution and the Law, and shall not be

T


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[email protected]

Second year, school of Law,

Kenyatta University

subject to the control or direction of any person

or authority, and in article 160(5) that a member

of the Judiciary is not liable in any action or suit in

respect of anything done or omitted to be done

in good faith in the lawful performance of a

judicial function.

The rule of Law also guarantees the

observance of the principles of natural justice

which comprises of the right to a fair hearing and

the rule against bias. This is also clearly enshrined

in the Constitution of Kenya under article 50(1)

which provides that every person has the right to

have any dispute that can be resolved by the

application of Law decided in a fair and public

hearing before a court, or, if appropriate, another

independent and impartial tribunal or body.

To Comment follow link:



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THE LAW ON THIRD PARTYPROCEEDINGS

By Victor Kiamba

n any given civil proceedings, there aretwo parties involved; the plaintiff who

is also the claimant and the defendant.

We may have several litigants in either

part whether several plaintiffs or several

defendants.

The Third Party

In other given circumstances, the Defendant

may wish to claim against any other person who

is not already a party to the suit against theDefendant by the Plaintiff where the said person

is said to have been involved in the said Cause of

Action and is intricately linked to the Plaintiffs

claim. This person is the Third Party.

Order 1 Rule 15 (1) of the Civil Procedure

Rules, 2010, a Defendant may claim against any

other person not already party to the suit where;

1. He is entitled to Contribution orIndemnity

2. He is entitled to any relief or remedyrelating to or connected with theoriginal subject matter of the suit and

substantially the same as some relief or

remedy claimed by the Plaintiff.

3. Any question arising or issue related toor connected with the said subject

matter is substantially the same

question or issue arising between thePlaintiff and The Defendant and should

be determined as between the Plaintiff

and Defendant and Third Party or

between either of them.

Proceedings against a Third Party

These are provided for under Order 1 Rules

15 to 23.

1. The Third Party NoticeThis is the Defendants claim against the

Third Party and is served upon the Third

Party after leave of the court to issue

the notice is granted. It is addressed to

the Third Party.

The Third Party Notice adopts the original

case citation and the Third Party is cited as a

party to the suit below the Defendant. It states

the nature of the claim. That is, the Plaintiffs

claim against the Defendant as well as the

Defendants claim against the Third Party. The

Notice also states the date that leave to issue the

Notice was granted by the court and the time

within which the Third Party must enter

appearance.

2. Issuing of a Third Party NoticeWithin 14 days after close of

pleadings, any Defendant may apply for

leave of the court to issue a Third Party

Notice. This Application is by way of an

Ex Parte Chamber Summons which is

supported by an Affidavit. A draft Third

Party Notice is also annexed to the

Supporting Affidavit.

The Defendant may apply for an

enlargement of time within which to

issue a Third Party Notice if the 14 days

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within which he must apply for leave

expire. This Application is by way of a

Notice of Motion.

Leave to issue a Third Party Notice

for service on the Government is only

granted when the court is satisfied that

the Government is in possession of all

such information as it reasonably

requires as to the circumstances in

which it is alleged that the liability of

the Government has arisen and as to

the departments and officers of the

Government concerned.

Once leave to issue a Third Party

Notice is granted, the Third Party Notice

is then filed and served upon the Third

Party in accordance to the rules under

Order 5 on Service of Sermons. An

Affidavit of Service must be filed with

the court as evidence of service upon

the Third Party.

3. Appearance of Third Party and DefenceWhen a Third Party has been served

with the Third Party Notice, The Third

Party shall file his appearance within

the time prescribed in the Third Party

Notice. As noted earlier, a Third Party

Notice must state the time within which

the Third Party must enter appearance.

This is unless the court orders

otherwise.

Appearance is by a Memorandum

of Appearance which shall state the

address of service of the Third Party

being either his residence or place of

business and his postal address if he is

appearing in person or his Advocates

address of service being the place of

business within Kenya and their postal

address. The Memorandum of

Appearance is the stamped and filed in

the court registry and a copy served

upon the Plaintiff and the Defendant.

4. Default of Appearance by Third PartyUnder Order 1 Rule 17, in the event

that a Third Party desires to dispute the

Plaintiffs claim as against the

Defendant on whose behalf the notice

has been given, or his own liability to

the Defendant, the Third Party must

enter an appearance in the suit on or

before the day specified in the notice;

and in default of his so doing he shall be

deemed to admit the validity of the

decree obtained by such Defendant and

his own liability to contribute or

indemnify, as the case may be, to the

extent claimed by the Third Party

Notice.

In the case of Joram Were &

Another vs- Transpares (k) LTD & 3

Others [2005] eKLR , Warsame J noted

that since the Third Parties therein

failed to contest an order enjoining

them as Third Parties their Application

seeking to dismiss the suit against them

was misconceived.

Where a Third Party is in default of

appearance in the suit and the suit is

tried and judgment entered in favour of

the Plaintiff against the Defendant, the

courts may either at the trial or after

the trial enter such judgment against

the Third Party. This is after giving

notice to the Third Party of the

intended Judgment. Execution of such

Judgment shall only be with the leave of

the court and only if the Defendant has

satisfied the Decree against him.

Order 17 does not apply on Default

of Appearance by the Government as

Third Party unless the court so orders


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[email protected]

LL.B Hons. (CUEA)

Post Graduate Dip. In Law (KSL)

Advocate of the High Court of Kenya

upon an application by the Defendant

which is by Chamber Summons.

5. Third Party DirectionsAfter appearance of the Third Party,

the Defendant must apply to the court

for directions by way of chamber

summons. If the court is satisfied that

there is a proper question to be tried as

to the liability of the Third Party, it may

order that such question be tried during

the trial or after the trial. The court may

also direct that the Judgment entered

against the Defendant in favour of the

Plaintiff be entered against the Third

Party in favour of the Defendant.

The court will also determine the

question of costs between the Third

arty and other parties to the suit and

may make orders to costs as the justice

of the case may require.




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SAUSAGE MACHINES?octor Stockman is pitted in the book of An Enemy of the Peopleas an extremist but ofmajor concern today is his quote that a party is like a sausage machine that smashes all

sorts of fatheads and blockheads and the rest is a long story for another day.

Kenya before 1992 is not the Kenya we see and live in today. Political appointments were made in the

roadsides and ones destiny and achievement of power was determined by his allegiance to KANU- the

then chama cha baba na mama. These times were severe; no one would stay in the streets for a whole

day in the name of mass action without taking a bite of his own medicine. Furthermore it was near to

impossibility as allegiance to Kanu simply meant belief in the dogmatic ideas based on the party leaders

personal interests thanks to Railas newly launched book Flames Of Freedomwhich explains more of

the traumatizing experiences .

These days we enjoy political rights especially those of multi-partism. Our heroes fought for the latter

but what must disturb a patriotic mind is whether the set objectives of the church clerics, politicians,

some now dead, have been achieved .Political parties have come from avenues for fighting human for

rights to ladders for selfishly rising to power. Take for instance, upon the death of Saitoti, Gideon

Konchela took over the PNU leadership and within a span of one day made coalition agreement with TNA

shortly before making another with URP party.

Our political leaders do not take it upon themselves to show respect to our heroes since they are not

led by the party manifestos but by their personal interests. When an m.p enjoys good meals at the ICC

restaurants, accompanying an ICC suspect, devil knows who, hiding under the umbrella of solidaritywhile the parliamentary proceedings are in session , and planning to jet back to the country to introduce

a bill in the parliament to remove himself from the list of public officers not forgetting the VAT bill that he

supported before taking the expensive flight to the Dutch court , something must be wrong politically and

I have nothing to lose because am losing anyway to the infamous tyranny of numbers.

One is left to wonder how political polygamy has taken root in our country. To the MPs, party hopping

is a custom and Kenyans vote for parties rather than individuals irrespective of how transformative their

ideas or plans may be. When politicians were buying certificates from smaller parties like Muungano party

in the eve of party nominations it just shows how the Kenyan definition of a party conforms to Henrick

Ibsens.

For a politician to successfully vie for a position in Kenya, he must pledge his loyalty to the political

kingpin. The effect of this is twofold, first it necessitates that the kingpins to form their political parties

that consequently become tribal .The political system in Kenya is thus destabilized due to the tribal

divisions. This explains why however transformative someones plans may be, he may not succeed in any

D

OPEN SPEAK

With Nelson Otieno


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political ambition outside ODM and TNA in Siaya and Kiambu counties respectively. The multi partys

fighters did not however envisage such sharp tribal divisions. This political idea has led to certain tribal

sayings such as mundu wa nyumba, a kikuyu saying meaning a man of our own. It further reflects the

attitude that different tribes has toward any person trying to achieve his political ambitions who hails

from a rival or a different tribe.

Secondly, any person hailing from any minor tribe in Kenya will never realize his political dreams. Our

politicians should be woken up to be rational, cease party sycophancy and serve the people of Kenya. It is

only through this that we are able to achieve the envisaged political freedom to all Kenyans.



[email protected]

Second year, School of Law,

Kenyatta University


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CRIMINAL RESPONSIBILITY FOROMISSIONS: NEGLIGENCE IN SCOPE

By Sylvia Anne A.

n common language, negligence would

simply refer to carelessness or non-

obervantness to facts/issues at hand.

Well, this isnt as much far from what Law

considers as Negligence; as in Law, Negligence

is a breach of a duty caused by the omission to do

something which a reasonable person, guided by

those considerations which ordinarily regulate

human conduct, would have known to cause

harm. In essence you are negligent if you

unintentionally cause injury to someone in a

situation where you should have known your

action could cause harm. This far it sounds much

like Accident, I mean, a person knows

reasonably that the harm could occur but still it

happened, cant that person plead that it was all

by accident? This is where the doctrine of Res

Ipsa Loquitur comes in, that is, Accident talks or

thing speaks for itself.

Res Ipsa Loquitur

It is sufficient for the plaintiff to prove the

accident and nothing more as there are many

cases to that effect; the landmark case to its

explanation being in Scott vs. London and St.

Katherine Docks Co. [1865] 3H&C 596 by the

Court of Exchequer, where the thing is shown

to be under the management of the defendant

or his servants, and the accident is such as in theordinary course of things does not happen, it

affords reasonable evidence in the absence of

explanation by the defendants that the accident

arose from want of care. This doctrine of res

Ipsa Loquitur only shifts the onus/burden of

proof in that a prima facie case is assumed to be

made out, throwing on the defendant the task of

proving he was not negligent. However, essential

requisites for the application of this doctrine are:

i) The thing which causes the harmmust be under the defendants

control.

ii) The defendant offers no explanation;and

iii) While under his control, an accidenthappens, which would not in the

ordinary course of things happen,

without negligence?

Does this then mean that any negligent

act or omission a person does is unlawful?

Ingredients of negligence.

Its not just unlawful every negligent omission

or act a person does is; three requisites must

prevail for liability to arise:

i) That the defendant owed the plaintiffa duty of care. A person can be as

negligent as he pleases towards thewhole world if such person owes no

duty of care to it. A duty of care is the

obligation to avoid careless action

that could cause harm to one or

more persons. In Donogue vs.

Stevenson[1932], Lord Atkin

redefined the concept of Duty of

care, he observed, You must take

reasonable care to avoid such acts or

omissions which you can reasonably

see would be likely to injure yourneighbor. Who the n in Law is your

neighbor? Persons who are so

closely and directly affected by my

act that I ought to have them in my

contemplation as being affected so

when am directing my mind to the

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acts or omissions in question, This is

theNeighbor Principle.

ii) That the defendant failed to provideproper standard of care that a

reasonable person would have

provided in a similar situation. The

standard of care is a way of

measuring how much care a person

owes another. It is the conduct of a

reasonable man in a particular

situation. The degree of care which a

person is required to use in a

particular situation varies/depends

on the obviousness of the risk; if the

danger of causing injury to the

person/property of another is great,

then great care is necessary, and vice

versa.iii) The third requisite is, that the action

of the defendant was the cause of

injury to the plaintiff. The

determining cause often done by

applying the But for test, that is, an

injury would not have happened but

for the defendants action. In Cork

vs. Kirby, Lord Denning said, if the

damage would not have happened

but for a particular fault, then that

fault is the cause of the damage. If itwould have happened, just the same

fault or not fault, then the fault is

not the cause of the damage.

Quite clear there but a question arises

why then is it a crime for being negligent as

not stopping a crime in action you are

capable of stopping but owe no duty of care

to stop?-This is the general feeling of the

Kenyan populace.

Criminal responsibility and duty of care

The Kenya Penal Code criminalizes

omission on part of the respondent for not

stopping a crime in action he would

otherwise been able to stop. This brings back

the element, Duty of care. The Law on duty of

care is non-static in the sense that something

was not a privilege yesterday and is today,

however, the courts have previously

considered duty that as laid down by

precedent by now; this is to widen the area

of application for better protection of public

interest. Laid down in the case of Caparo vs.

Dickman [1990], the three stage test on

establishing duty of care is:

1. Was the harm or loss causedreasonably foreseeable?

2. Sufficient Proximity between theparties. The act complained of must

directly affect whom the defendant

would know would be directly

affected by his careless act. Proximity

does not refer to

geographical/physical closeness but

is a legal term; legal closeness.Sometimes it is used in a different

sense as indicating not the

relationship between the parties but

the relationship between the

defendant and the source of harm, as

illustrated in the case of Hill vs. Chief

Constable West Yorkshire.

3. The situation must be one which thecourt considers it fair, just and

reasonable. Even if there is the

requisite degree of proximity, like forinstance a sufficiently close

relationship of love and affection, a

duty may still be denied if in the

courts view the imposition of liability

would be unfair, unjust and

unreasonable. In conclusion

therefore, dear reader, next time you

are witnessing a crime in action being

committed of which reasonably you

are able to stop, three things, one, do

you have any type of relationship,

professional, fiduciary or any other

control over the person causing the

harm? {proximity} ; two, would it be

reasonable, fair and just for you to

stop the crime considering the

circumstances?-dont go to a gun

fight with a knife-, and three, was it

reasonably foreseeable on your part


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[email protected]

Third Year, School of Law,

University of Nairobi

that such crime action could have

happened yet you took no actions to

stop it?

If not, you are free to walk away-we have

the police, dont we?

Have a crime free Endeavour

To comment follow link:



19/42

In this Issue:

DO WOMEN REALLY HAVE A PLACE IN KENYASJUDICIARY?WHY RAILA AND KIBAKI GOVERNMENT WAS SUCCESSFULWHERE IS KENYA HEADED TO?

DO WOMEN REALLY HAVE A PLACEIN KENYAS JUDICIARY?

hat is it with women who tend to

exemplify a sign of profound

strength or rather power in the

judiciary? From the abintio of this

entire Shollei saga I thought to

myself and posed this

query to myself, could

this be another

scenario like the one

Nancy Barasa faced?

From this it is lucid or

rather elucidate that

the feminine gender is

always at risk in the

judiciary. Nancy Baraza

was almost beingcrucified when she

merely pointed a gun at

the face of the

egocentric Kerubo, To

me all she did was just

try to educate an

ignorant Kenyan in a

harsh way that they should rather be keen in

their common knowledge and not deem as

minute things that may seem simple and of no

great importance.

When it came to the one great Willy

Mutunga, he made a

judgement on the March 4th

elections without validated

arguments in making his

decisions based on a bogus

claim of rather looking at the

time wasted than

presentations by the advocates

who handled the cases. Any

reasonable prudent individual

who watched the proceedingssaw that George Oraro and

Kethi Kilonzo rather presented

a strong case and if not all but

one of their prayers was to be

allowed. But what happened?

All of them were thrown out.

This raised questions by a

W

PL YPower, Politics &Governance

With Otieno Arnold Odiemb

Second Year; School of Law,Kenyatta University,www.otienoarnold.wordpress.com

Women in the Judiciary


20/42


number of questions on the reliability of the

judiciary in handling matters. This was not

questioned by the judicial service commission.

Let me leave that aside as I would be termed

political but trust me that if you are not a

vacuous vessel of ignorance and a

manifestation of emptiness you will agree with

me without a qualm. Recently, Lawyer

Ahmednassir Abdulahi was faced with

allegations against him being in participation

with the influence of the high court in the

decision where National Cereals and Produce

Board (NCPB)was ordered to pay Sh564 million

to Erad Suppliers and Contractors Company

over supply of maize . On the other hand one

chief registrar of the judiciary Shollei was

suspended pending investigations against her

pertaining corruption. If this is so the questionto ask oneself is does gender equality really

apply in the judiciary? And if the judiciary has

the role to interpret the law as is its role where

are we headed if that body we all look at to be

the abintio of ensuring equality has not

exemplified it?

I still feel and strongly believe that if Shollei is

suspended from office then one Ahmednassir

Abdulahi should be suspended leave alone be in

the committee that is yet to determine the fate

of one Mrs. Shollei.

I strongly believe that women have played quiet

a great role in ensuring the betterment of the

judiciary and legal field at large and thus as

most of us are fighting for the protection of

Raila who is a kernel figure in this great nation

so should we also ensure

the protection of the women in the judiciary as

they are almost becoming the white rhino.

Look at personalities like Martha Karua, the

Hon. Lady Justice Kalpana Hasmukhrai Rawal

susanna, the Hon. Lady justice Mary A. Angawa

amongst others. If these individuals are not

protected then trust me we are headed forsomewhere dark and a Rubicon.

PROTECT WOMEN IN THE JUDICIARY IS MY PLEA

TO ALL.

To Comment Follow Link:

www.otienoarnold.wordpress.com

Picture courtesy of Caren Kerubo


21/42


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wow that it blinded the Kenyan people and they

did not focus on the unemployment we faced

during its construction. Few years after its

completion we now remain with the terror of

ensuring that the road is maintained and also

paying yearly fees to the Chinese government

whereas as a country we cannot even pay our

teachers adequately. This is lucidly a loss to us

as a nation. Normally, I have always been a

proud guy who would at no point ask for money

from a lady due to the mindset I have always

had that it is to be vice-verse . A day came when

I had only two options ask my girlfriend for

economic assistance or rather face war by some

thugs. This but just an example to illustrate that

we have to at times undertake some decisions

against our pride and also accept our

weaknesses as a nation.

I believe that it is time we accept that as a

nation we are weak and clearly need help from

all angles. Hon Uhuru Kenyatta should work out

a way to ensure that he is not only close to the

eastern nation but also the western nation. We

must be proud as a nation yes but when one is

weak he/she needs to put away any pride

within to ensure we resort our problems before

regaining the normal pride as a nation.




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WHERE IS KENYA HEADED TOrom the first time I heard about the

burning of JKIA, it ran through my

head that this was the beginning of

Kenyas problems. JKIA to the best of

my knowledge has one of the most titled security

detail in Kenya. If this is the case and still was

vulnerable to it being burnt and up to now we the

Kenya people have not gotten lucid explanation

of what exactly happened and caused the

situation as it occurred this then is like to state

that the security situation in Kenya is at its worst.

Some may not understand the great loss this

situation brought to the country apart from thedistraction of property. But trust me there is

much to that. As it is self explanatory that

tourism is one of the most valuable source of

income to this superlative state. As a result of the

fire at JKIA questions were posed to the heads of

tourists concerning the security status as it was in

our heads. This for sure reduced the number of

incoming tourists in the country. LOSS TO US

In the last twenty four or so hours, the

instances that have covered the news and havebrought melancholic feelings to most Kenyans

clearly back the statement We are headed

nowhere closet vision 2030 if we cannot stiffen

our security. At times I always think of what

Nancy Baraza says when she watches the TV and

sees the security issues we face as a country. I

think she rejoices saying Now they thought

frisking everyone would help maintain security,

and its getting worse.

The scenario at west-gate lucidly showed ourvision for vision 2030 in context of movie acting.

The incident yesterday is one that I have only

seen in movies. Where on earth have terrorists

learnt the art of holding hostages? And how did

they plan all this and subdued the west-gate mall

if there were security officers at the entrance

who are believed to frisk people at their entrance

to the mall? What really do the security

personnel do in the name of frisking individuals in

the entrance to such malls and other building?

What is the government doing about this?

Auxiliary there was a fire at Kenyatta National

Hospital today morning. Is this an illustration that

we do not know what to expect and where to

expect it? Is there a nexus to the instance that

occurred yesterday and today morning?

Some weeks ago there was a committee set

to look into the main cause of the fire at JKIA. It

has been weeks now since and no adequateanswer has been given back to the people. This

again is what we are to expect in the west-gate

issue. This time it would be rather appropriate for

the government to ensure they give the Kenyan

people answers. This is the least they can do to

those injured and the families of those who lost

their lives in the gunfire instance at west-gate.

I think it is time to ensure the security of all

Kenyans and make it the brim of Kenyas agenda

rather than other puerile things. It is time that wesee the main impact that the so called police

reforms brought into office. It is time that the

government proves its worth in ensuring that

criminals are brought to justice and punished

accordingly for the lack of ensconced they bring

to Kenyans.

The Kenyan people are watching and you will

be judged accordingly.

R.I.P to all that lost their lives and I would like

to wish all that were injured in the whirlwindquick recovery.

To Comment follow Link:


F


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Where the

parents are the

ones making the

marriage

agreement,

neither party tothe intended

marriage can

bring an order

for breach of

promise to

LEGALITY OF BREACH OF PROMISETO MARRY

By Gabriel Pelu.

arriage under the MatrimonialCauses Act cap 150 means the

voluntary union of one man and

one woman for life to the

exclusion of all others. Legally, marriage is a

voluntary act that should be legally able to

accommodate free consent and thought for a

valid and responsible decision to be reached by

marriage capable parties. Under legal thought,

breach of promise to marry is legal in its entire

entirety unless proven illegal and unlawfulwhereby persons on breach stand to be charged

for the damage caused and the injury incurred.

Under law, many factors are taken into account

in regard to the legality of breach of promise to

marry. Such factors may be who, the cause of the

breach of promise, reason for the breach of

promise and time of the breach of promise to

main lay terms, a breach of promise to marry is

all about second thought where the heart feels

unsatisfied with the person of promise thus the

break out.

Just as consent to marry is required, so

should a second thought of whether to see to a

promise of marriage or not basically out of

personal decisions because marriage is a life

commitment and no one would like to walk that

journey half minded of his/her better half.

Under civil law, breach of promise to marry is

acceptable where the legal position depends on

who is at fault for the breach. Where the man is

at fault, the promise breaks without any returns

whatsoever of any gifts given in anticipation of

the marriage while if its the girl who breaks the

promise, she is obliged to return any anticipatory

gifts that she got from the man or his family.

Where mutual consent to the breach occurs, both

parties to the

contemplated marriage ought to return any

gifts that were exchanged or given.

Where the parents are the ones making the

marriage agreement such as in Hindu and Islamic

cultures, neither party to the intended marriage

M


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Carlas diaries is a diary of a law student sharing her hostel life experiences

Today I woke up hating one thing: the sound of my alarm clock snoozing. I mean, couldnt my alarm

just wait for just one minute? Yawning, I reached for my phone, immediately realizing I had a text

message;

Hello comrade, be informed that the intended lecture for jurisprudence that was to take place this

morning at 0830hours has been postponed to next week Wednesday...Otieno

I couldnt help chuckling. Our class representative surely had a way with words, did he just say

0830hours? Couldnthe just use the standard student language 8.30am full stop?!Hehe. Pulling my covers

closer, I thanked my lucky stars about the class that had bounced. This was surely divine intervention!

I turned in bed and faced the wall, thinking of nothing but sleep. In that moment, Henry Barlows

poem Building the nationcrossed my mind. Mmph, building the nation huh?

Carla! someone called at the corridor, followed by Cynthia barging into my room with, Carla, I

need my dissertation course outline copy. Just that and I was up immediately, Take it from the table

Cynthy,I said yawning at a thankful Cynthia leaving the room with her course outline. I thought of my

undone dissertation research and jumped out of bed.

Talk of a ruined promising morning! Agrrrh!

By Caren Kerubo

[email protected]

K.U.S.O.L

CARLAS DIARIES


27/42


THE NEW CONSTITUTION AND THE

YOUTHSBy Kenneth Kimathi

The constitutional referendum in Kenya on 4th

August 2010 in which the citizens overwhelmingly

approved it paved way to the promulgation of

the second constitution which refigured the

Kenyan youths. For the first time youths have

their rights enshrined in the Supreme Law of the

Land.

Since its promulgation, consequently, in

the spirit of Article 55 of the constitution, we as

the youths should never be threatened into

taking particular political stands just so as our

grievances can be addressed. Any government

that gets to power has the mandate to cater for

and satisfy the requirements of the said article as

A breach of this should lead to a judicial action

for constitutional breach. Besides that, neither

the government nor the legislature that takes

over has the power to re-enact a law that is

inconsistent with this article.

This article provides that the state shall

take measure, including affirmative action

programmes to ensure that the youth shall:

a) Access relevant education and training.Therefore its our obligation as the

youths to utilize the opportunity

irrespective of our social or economic

backgrounds. Our academic

backgrounds also dont have to limit usfrom reaching the epitome. The

government should also respond to this

particular clause by playing an equal

opposite role by ensuring education is

accessible to all youths. It should ensure

that all youths attain higher education;

college, university or technical levels.

b) This part gives the youths a chance toassociate, be represented and

participate in political, social, economic

and other spheres of life. The state

therefore should go an extra mile to

abolish and deter organizations from

coming up with legislations that

contravene this part of the article.

Organizations should be stopped from

discriminating the youths when it comes to

offering loans and grants that would otherwise

allow them to participate in the economic

sphere. The parliament should also enact

legislation that provides for affirmative action to

the youths so that they can participate in the

political sphere without paying any fee to

electoral commission as required by the elections

Act.

The last part of this article provides that

the state should protect the youth from harmful

cultural practices and exploitations. Its therefore

upon the state to use its representatives and

organs to ensure that the youth are protected at

the village levels because this is where the centre

stage of cultural practices, if any, takes place. It

should ensure that all the barbaric and harmful

practices that affect the youth are abolished and

any person found in practice of the same to face

the full wrath of the Law.

Youths in the past have been exploited

mostly when it came to employment and other

opportunities that the youths seemed to have

interest in. they were asked to part with huge

amounts of money in order to get access to such

opportunities. Any individual found to be


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involved in such unscrupulous practice of

exploitation must also be dealt with accordingly.

All in all, as a youth I see this as a rare

opportunity that we have and therefore ought to

fully utilize it.

t

To comment follow Link:


[email protected]

Second Year School of Law,

Kenyatta University


29/42


LEGAL POSITIVISM: IS IT OR NOT INKENYA?

By Michael Opondo O.

n contrast with the general idea, the

essence of legal

positivism is not a

denial of Natural

Law theory claim that Law

and morality are heavily

interlinked, but rather that

the identification of the law

is not solely dependent on

moral argument, but that it

depends on social facts

alone. In my view Rather,

Kenyas Law application is

solely built on Legal

positivism as natural law

sources are slowly but sure

seeing their demise, take

for example, Customary

Law. Legal positivism,

therefore, is a school of Jurisprudence whose

conventional nature of law is socially constructed

with legitimate source from written rules and

regulations. It was largely developed by legal

thinkers in the nineteenth-century.

The doctrine, that law can be identified by

reference to social facts alone without engaging

moral argument is called The sources thesis by

Prof. Joseph Raz. He states that, in The

Authority of Law (1979), that the legal positivist

thesis is that what is law and what is not is a

matter of social fact. He further postulates that a

jurisprudential theory is only acceptable only if itstest for identifying the content of Law and

determining its existence depends exclusively on

facts of human behavior.

Back home in Kenya, Law is

sewed on Social dynamics

and not the other way

round-law follows social

change-thus social facts

constitutes what is and

what is not law of the land.This has however not been

conclusive as theres no

exact test to be used to

identify Law.

Prof. Ronald Dworkin

comes in to attack the

sources thesis in his

Magnum opus on legal

theory, Laws Empire

(1986) arguing that legalpositivism cannot properly account for legal

argumentation by lawyers and legal decisions by

appellate judges in so called hard cases. He

further says that law consists not merely of the

settled legal rules but also legal principles which

are not identified from the sources thesis but

ILaw is to bring

pleasure and avoid

pain, with pain and

pleasure as the

ultimate standards

on which Law is to

be judged


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TYRANNY OF THE URGENTo we ever feel one day flow into the next, one week flow into the next and one

year flow into the next? There is always one more task, one more assignment, one

more item to check off your to do list. The tyranny of urgent consumes our

lives. We rush from one task to another. One may wonder, is it really worth it all, will it make

any lasting difference? That the things which are most important get pushed out of our lives by

the things which are most immediately demanding?

Our homes which were a place of comfort and rest have been reduced to a place of

convenience; a place to eat and sleep. The modern world never whispers. Our cities are like

arcades without exits. Urgent voices, flashing signs and an endless stream of media images

surround: Adapted from When God Said Remember.

Did God intend for us to live such miserable lives; our minds always overcrowded? Truth is

that He had a better plan for us. The wisest man on earth admits that everything under the sun is

meaningless and vanity. That there is no remembrance of men of old, and even those who are yet

to come will not be remembered by those who follow- Ecclesiastes 1:11 he questions: without

God who can eat or find enjoyment?

Psalms 127: 1-2, unless the Lord builds the house, its builders labor in vain. Unless the Lord

watches over the city, the watchmen stand guard in vain. In vain you rise early and stay up late,

toiling for food to eat-for He grants sleep to those He loves.

Let us go back to the source, to the one who created us, the one who determines our destiny,

and the one who gives us rest. He gives us an easy solution; is anyone of you in trouble? Heshould pray. For the fight is not ours, but the Lords.

D

Moment with Self

With Sheila Mokaya

[email protected]

Second year, School of Law,

Kenyatta University


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THE LAW OF CONTRACT: ANINTRODUCTION

By Gabriel Pelu

contract is an agreement entered

into voluntarily by two parties or

more with the intention of creating

a legal obligation, which may have

elements in writing, though contracts can be

made orally. The remedy for breach of contract

can be "damages" or compensation of money. In

equity, the remedy can be specific performance

of the contract or an injunction. The parties may

be natural persons or juristic persons. A contract

is a legally enforceable promise or undertaking

that something will or will not occur. The wordpromise can be used as a legal synonym for

contract, although care is required as a promise

may not have the full standing of a contract, as

when it is an agreement without consideration.

At common law, mutual assent is typically

reached through offer and acceptance, that is,

when an offer is met with an acceptance that is

unqualified and that does not vary the offer's

terms. The latter requirement is known as the

"mirror image" rule. If a purported acceptance

does vary the terms of an offer, it is not anacceptance but a counteroffer and, therefore,

simultaneously a rejection of the original offer.

Offer and acceptance

The most important feature of a contract is

that one party makes an offer for an arrangement

that another accepts. This can be called a

concurrence of wills or consensus ad idem

(meeting of the minds) of two or more parties.

The concept is somewhat contested. The obvious

objection is that a court cannot read minds and

the existence or otherwise of agreement is

judged objectively, with only limited room for

questioning subjective intention: Smith v.

Hughes. Richard Austen-Baker has suggested that

the perpetuation of the idea of 'meeting of

minds' may come from a misunderstanding of the

Latin term 'consensus ad idem', which actually

means 'agreement to the [same] thing'. Theremust be evidence that the parties had each, from

an objective perspective, engaged in conduct

manifesting their assent, and a contract will be

formed when the parties have met such a

requirement. An objective perspective means

that it is only necessary that somebody gives the

impression of offering or accepting contractual

terms in the eyes of a reasonable person, not

that they actually did want to form a contract.

The case of Carlill v Carbolic Smoke Ball

Companyis an example of a 'unilateral contract'.InAustralian Mills v The Commonwealth, the High

Court of Australia considered the term

"unscientific and misleading". Obligations are

only imposed upon one party upon acceptance

by performance of a condition.

Offer and acceptance does not always need

to be expressed orally or in writing. An implied

A


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contract is one in which some of the terms are

not expressed in words. This can take two forms.

A contract which is implied in fact is one in which

the circumstances imply that parties have

reached an agreement even though they have

not done so expressly. For example, by going to a

doctor for a checkup, a patient agrees that he will

pay a fair price for the service. If one refuses to

pay after being examined, the patient has

breached a contract implied in fact. A contract

which is implied in law is also called a quasi-

contract, because it is not in fact a contract;

rather, it is a means for the courts to remedy

situations in which one party would be unjustly

enriched were he or she not required to

compensate the other. For example, a plumber

accidentally installs a sprinkler system in the lawn

of the wrong house. The owner of the house hadlearned the previous day that his neighbor was

getting new sprinklers. That morning, he sees the

plumber installing them in his lawn. Pleased at

the mistake, he says nothing, and then refuses to

pay when the plumber delivers the bill. Will the

man be held liable for payment? Yes, if it could

be proven that the man knew that the sprinklers

were being installed mistakenly, the court would

make him pay because of a quasi-contract. If that

knowledge could not be proven, he would not be

liable. Such a claim is also referred to as"quantum meruit".

Consideration

Consideration is something of value given by

a promissor to a promisee in exchange for

something of value given by a promisee to a

promissor. Typically, the thing of value is a

payment, although it may be an act, or

forbearance to act, when one is privileged to do

so, such as an adult refraining from smoking.

Consideration consists of a legal detriment

and a bargain. A legal detriment is a promise to

do something or refrain from doing something

that you have the legal right to do, or voluntarily

doing or refraining from doing something, in the

context of an agreement. A bargain is something

the promissor wants, usually being one of the

legal detriments. The legal detriment and bargain

principles come together in consideration and

create an exchange relationship, where both

parties agree to exchange something that the

other wishes to have.

The purpose of consideration is to ensure

that there is a present bargain, that the promises

of the parties are reciprocally induced. The classic

theory of consideration required that a promise

be of detriment to the promissor or benefit to

the promisee. The emphasis is on the bargaining

process, not an inquiry into the relative value of

consideration. This principle was articulated in

Hamer v. Sidway. Yet in cases of ambiguity,

courts will occasionally turn to the common law

benefit/detriment analysis to aid in the

determination of the enforceability of a contract.

Sufficiency

Consideration must be sufficient, but courtswill not weight the adequacy of consideration.

For instance, agreeing to sell a car for a penny

may constitute a binding contract. All that must

be shown is that the seller actually wanted the

penny. This is known as the peppercorn rule.

Otherwise, the penny would constitute nominal

consideration, which is insufficient. Parties may

do this for tax purposes, attempting to disguise

gift transactions as contracts.

Past consideration is not sufficient. In

Eastwood v. Kenyon

the guardian of a young girlobtained a loan to educate the girl and to

improve her marriage prospects. After her

marriage, her husband promised to pay off the

loan. It was held that the guardian could not

enforce the promise because taking out the loan

to raise and educate the girl was past

considerationit was completed before the

husband promised to repay it.

Stilk v. Myrick, in which a captain's promise to

divide the wages of two deserters among the

remaining crew if they would sail home from the

Baltic short-handed, was found unenforceable on

the grounds that the crew were already

contracted to sail the ship through all perils of the

sea.

Consideration must move from the promisee.

For instance, it is good consideration for person A

to pay person C in return for services rendered by

person B. If there are joint promisees, then


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[email protected]

Second year, School of Law

J.K.U.A.T

consideration need only to move from one of the

promisees.

In addition to the elements of a contract:

a party must have capacity to contract; the purpose of the contract must be

lawful;

the form of the contract must be legal; the parties must intend to create a legal

relationship; and

the parties must consent.As a result, there are a variety of affirmative

defenses that a party may assert to avoid his

obligation.

Affirmative defenses

Vitiating factors constituting defenses to

purported contract formation include: mistake; incapacity, including mental

incompetence and infancy/minority;

duress; undue influence; Unconscionability misrepresentation/fraud; and Frustration of purpose.

Freedom to contract and Hurley v.

Eddingfield

In most systems of law, parties have freedom

to choose whether or not they wish to enter into

a contract. Hurley v. Eddingfield(1901), in which

the Supreme Court of Indiana ruled in favor of a

physician who voluntarily decided not to help a

patient whom the physician had treated on past

occasions, despite the lack of other available

medical assistance and the patient's subsequent

death.

Reference

Ewan McKendrick, Contract Law - Text,Cases and Materials (2005) Oxford

University Press ISBN 0-19-927480-0

P.S. Atiyah, The Rise and Fall ofFreedom of Contract (1979) Clarendon

Press ISBN 0-19-825342-7

Randy E. Barnett, Contracts (2003)Aspen Publishers ISBN 0-7355-6525-2




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CRIMINAL JUSTICE AND HUMANRIGHTS: DEATH PENALTY

By Michael Opondo O.

Criminal Justice

Criminal Justice, or rather in Kenyan context

Criminal Procedure refers to the procedure of

bringing a criminal suspect to justice in

entirety from investigation, through arrest,

charges, trials, sentences and punishment. By

virtue of section 3(1) of the Criminal

Procedure Code, which states:

All offences under the Penal Code

shal l be inquired into, tr ied and otherwise

dealt with according to this code

And section 3(2) which states that:

Al l of fences under any other L aw

shal l be inquired into, tr ied and otherwise

dealt with according to this code subject to

any enactment f or the time being in force

regulati ng the manner or place of

inquir ing into, trying or otherwise dealingwith those offences

It can be deduced that Procedural Criminal

Law has the purpose of administering the

Substantive Law and to bring certainty as to

process to be followed when a person has

committed a crime, all in all, pursuing the

essential object of Criminal Law which is

primarily to protect the society from

Criminals and Law breakers; however, if

applied in extreme, human rights might be

violated irreparable.

Human Rights

The question of what really Human rights are

is a mammoth one as such and would only

imperfect its definition in attempt to pigeonhole it in one summary, however, an attempt

would do. Human Rights are what every

person/individual shall have by virtue of

birth as human being; they are and remain

inherent and inalienable. In the formation of

a society, however, from a positivist view,

individuals surrender some of their rights to

the government for protection and to

maintain social order, for example, right to

life-you have no absolute right over your life

making suicide a crime. Human rights are

premised under the following assumptions:

Human rights transcend territory andtime. They are universal.

Human rights represent legal andmoral limits of the governments

power.

Human rights are ancient in origin. Human rights are more sacred than

ordinary legal rights.

Human rights are supra-legal. Theydo not depend on existence of

government or constitution.


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[email protected] year; School of Law,

Kenyatta University,


Human rights are essential conditionsfor a free and democratic society.

Fundamental human rights belong tohuman beings as individuals as well

as to human groups as collective

entities.

The Kenyan Penal system is highly built on

the Highly Punitive strategy in

administering justice, that is, the attitude that

offenders should be dealt with severely as

possible, taking of Shoot to Kill and such

measures, rather that the Managerialist

strategy which rather seeks to protect and

uphold the human rights of offenders,

victims and potential victims of crime, never

neglecting any.

Death penalty

Talking of neglected, the Hangmans Noose

seems to be feeling so; maybe its justified,

or maybe not. Quoting one Stuart Banner:

Whether phrased in Philosophical,

poli tical or economic terms, the argumentshave been rooted in a basic moral question:

Are there Crimes so grave or any Criminals

so evil that death i s the onl y just

puni shment? Is it ri ght for the state, acting

in our name, to put criminals to death?

Blood defiles the Land, and its not about

being morally blinded or uptight on this, but

any reasonable man-whoever he is-should

feel the same and it therefore beats logicwhy we still have the death penalty at the

disposal of our Law courts.

May plea, Kenyan Penal System, lets spare

lives both in bold, black and white; and in

practice.

Have a lively Endeavour.




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JUDICIARY WATCH

Our new brand identity A newpromise to the Mwananchi

Source: www.kenyalaw.org(PUBLIC DOMAIN ISSUE)

October 11, 2013

The Hon. Dr. Willy M. Mutunga, D.Jur, S.C., E.G.H.

Chief Justice & President, Supreme Court of Kenya

Chairman,

October 2013

Nairobi, Kenya

e are making a bold promise. Understanding our role as the agency through which Kenyas

robust, indigenous, patriotic and progressive jurisprudence will be monitored, reported and

also packaged as a product for export to other jurisdictions, and acknowledging our socialjustice obligation to provide public legal information that is open and accessible, we will be the gold

standard by which law reporting and access to public legal information is measured. The people of Kenya,

from whom our mandate is derived, the letter and spirit of the Constitution of Kenya, 2010 and the

Judiciary Transformation Framework requires nothing less of us.

The essence of our renewed sense of obligation is captured in our new slogan Where Legal

Information is Public Knowledge. We have come to an enlightened understanding of our mandate and

W


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make a commitment to not merely be a provider of public legal information but the peoples fountain of

knowledge and understanding of the law for the promotion of the rule of law and the advancement of a

civilized society.

We have renewed our minds and rededicated ourselves to the national values and principles of public

service set out in the Constitution of Kenya, 2010 and we have re-engineered our systems and processes

to exceed the expectations the people, the Judiciary, our partners and our stakeholders. The essence of

this renewal is expressed in a new brand identityKENYA LAW.

The Laws of Kenya (Revised and Consolidated Edition)A token of our commitment to providing

quality public legal information

Committed, effective and comprehensive implementation of the Constitution will place Kenya on a

social-democratic trajectory. The Constitution has fundamental and core pillars that can mitigate the

current unsustainable and unacceptable status quo in our economic, social, cultural, ideological, and

political sectors. Undermining the Constitution will destroy these pillars. The Constitution calls upon us to

be patriotic. I do not see any other way of expressing our patriotism except in our expression of fidelity to

the Constitution and its unequivocal implementation.

Kinachohitajika ni moyo wa dhati wa kuikubali Katiba na kuitekeleza. Hilo lisipofanyika basi

hapatakuwa na usawa, demokrasia, utawala wa sheria, uhuru wa Mahakama, wala maendeleo yoyote

yale katika jamii.

The Constitution of Kenya, 2010 places an obligation on every citizen to respect, uphold and defend

the Constitution. This obligation, and indeed the obligation placed on the citizen to obey the other laws as

well, necessarily gives rise to a duty on the State to publish the law. The citizens obligation can therefore

only be discharged where the citizen has easy access to an accurate, reliable and authoritative source of

the text of the law.

Indeed, in the Bill of Rights, the Constitution establishes the citizens right to access information held

by the State and places a duty on the State to publish and publicise important information affecting the

nation.

Therefore, at Kenya Law, we strongly believe that the free flow of information is fundamental for both

access to knowledge and the development of culture. Public legal information is part of the common

heritage of humanity and maximizing access to this information promotes justice and the rule of law. Such

information, which includes the primary sources of law, should therefore be accessible to all citizens.

We are glad to present the first revised and consolidated edition of the Laws of Kenya since 1989. In

keeping with our policy and our obligations on accessibility, the edition is provided and will continue to beupdated in print, online and on CD-Rom; the digital edition is provided on a technology platform that

meets the industry standard for openness and accessibility and the edition is free from unfair copyright

restrictions.

I would like to acknowledge and appreciate the leadership provided by the Members of the Council

for Law Reporting; the innovativeness, diligence and dedication of its Team Leaders and Team Players and

the technical and financial support of the Attorney General and our development partners.


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See more at: http://www.kenyalaw.org

We Dont Take Public Support for the

Judiciary for GrantedSource: www.kenyalaw.org(PUBLIC DOMAIN ISSUE)

May 20, 2013

Remarks by the Hon. Dr. Willy Mutunga, D. Jur., SC, EGH Chief Justice, President, Supreme Court of

Kenya.(This article was also published in the Sunday Nation edition of May 19, 2013.)

Ever since I took my oath of office on June 20, 2011, I have never been under any illusion that

winning public confidence is a destinationrather I believe that it is a continuous journey.

Even at those moments when surveys have found that the Judiciary enjoyed some of the

highest public approval ratings for a public institution, we have been keen to seek ways of winning the

confidence of those who still found our services and attitudes unsatisfactory.

I was, therefore, surprised to read the online report in the Daily Nation (Wednesday, May 15, 2013)

attributing to me remarks to the effect that the proof of Kenyans confidence in the court system could be

found in the unanimous decision of the Supreme Court in the recent presidential petition.

Nothing could have been further from what I said. It is possible that since the reporter was notpresent at the meeting with Chief Judge Lippman in his Manhattan chambers, he entirely missed the

context and substance of our discussions.

Going by the reactions online, this report has caused a great deal of distress to many Kenyans. I have,

therefore, requested the editors of this newspaper to allow me to exercise the right of reply on this

matter in order to set the record straight.

From May 13, 2013, I have been visiting the United States as part of my continuing engagement with

other jurisdictions to draw lessons on how to speed up the transformation of the Judiciary launched a

year ago. It has been a mutual learning experience for us as well as for our hosts.

In New York, for example, Chief Judge Lippman of Circuit of Appeals is working to bring into the

mainstream of the justice system its town and village justices, many of whom are non-lawyers who have

been criticised for conduct ranging from appearing drunk in court to failing to inform defendants of their

right to counsel, to convicting defendants without trial. We, on the other hand, are attempting to

reconcile the councils of elders, which are important in traditional Kenyan society, with the protections of

our new constitution, for example, with regard to womens rights.


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Our discussions also centered on experiences in negotiating budgets with the Executive and the

Legislature as an independent Judiciary.

I recall telling Chief Judge Lippman that unlike in 2007 when election contestants refused to go to

court, this time round, on the basis of the confidence building work we have undertaken since 2011, there

was recourse to the courts and not violence.

The closest I came to discussing the petition was to say that political questions are problematic for

courts worldwide because what makes sense in law, evidence and the Constitution may not always be

what makes sense politically. The Supreme Court judges and I are only too aware that the decision

handed down in on March 30, 2013 may not be universally popular. We have subsequently taken steps to

open spaces for it to be debated, for the benefit of all actors and interests involved not just now but also

for the future.

One of the events scheduled upon my return to Kenya is the handover of all materials from the

presidential election petitions to university law schools in Kenya in order to launch a robust debate and

lifelong scholarly inquiry on the cases and the decisions that flowed from them.

Through this engagement, the Supreme Court, and indeed the Judiciary, will be inviting criticism of its

processes and outcomes as well as evaluations and affirmations as appropriate. It is a testament to our

acceptance of the principle that it is only through constant engagement that we can build public

confidence in Kenyas justice system.

Whenever the public has expressed confidence in the workings of the Judiciary, we have never seen it

as an opportunity to become over-confident in our abilities or rest on our laurels. We remain eternally

grateful to those Kenyans who continue to keep the faith in the ideal of the Judiciary created by the

Constitution. We remain keenly aware that to those whose faith may be flagging, we have a duty to

restore it in our decisions and conduct.

See more at: http://www.kenyalaw.org/


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Special thanks to:

i) The ContributorsSheila Mokaya, K.U.S.O.L

Otieno Arnold O., K.U.S.O.LCaren Kerubo, K.U.S.O.L

Victor Kiamba, Advocate of the High Court

Gabriel Pelu, JKUAT

Kenneth Kimathi, K.U.S.O.L

Sylvia Anne A., U.o.N

Henry Omukubi, K.U.S.O.L

Nelson Otieno, K.U.S.O.L

ii) Picture models;Patricia Ngare; and

Caren Kerubo.

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thNovember 2013

With Complements:

Opondo Michael,

Managing Editor,

Kenyan Legal 2013

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