the kenyan legal issue 1

main feature:

DO WOMEN HAVE A PLACE IN

KENYA’S JUDICIARY?

Breach of promise to Marry: It’s Legality

November 2013 Issue #1

Also inside:

Why Raila

and Kibaki

Government

was

Successful

Judiciary watch:

Word from the Chief

Justice

©Kenyan Legal 2013

here’s all kinds of Brilliance in the

world; some will give you trophies,

some will fill your bank accounts but

there’s 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 it’s 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; it’s 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 we’re headed towards Success.

That said, as well as with great happiness

and humility, it’s also 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,

Michael

Michael Opondo O.

Managing Editor,

KENYAN LEGAL

T

©Kenyan Legal 2013

CONTRIBUTORS

Sheila Mokaya, K.U.S.O.L Otieno Arnold O., K.U.S.O.L Caren 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 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 in

any 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 brief

quotations 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.

©Kenyan Legal 2013

Inside this issue

Case 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 Kenya’s Judiciary? ....................................................19

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

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

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

Carla’s 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 Identity – A New Promise To The Mwananchi ........................38

We Don’t Take Public Support For The Judiciary For Granted..........................40

©Kenyan Legal 2013

Case of the month REPUBLIC 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 GENERAL………RESPONDENT

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 suffered during detention. 2. THAT the Court of Appeal declares that monetary compensation in addition to any other remedies 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.)

©Kenyan Legal 2013

CONSIDER:

Maxims of Equity. D.P.P’s 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

©Kenyan Legal 2013

LEGAL DISCOURSE With 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 there’s 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, it’s 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 Opondo’s 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 a

person 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. There’s 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-, there’s

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-, there’s Capacity to

the contract that is the majority age as aforementioned and if things don’t work out, there’s termination

in Divorce.

©Kenyan Legal 2013

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 it’s termination? Or does the third party lose the position

soon as the two married attain majority age?

So here’s the Legal Discourse, what’s your course of thought?


©Kenyan Legal 2013

THE RULE OF LAW IN KENYA

By Henry Omukubi

he rule of Law means that

government and it’s 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 law…law of

the 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 as

to 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

©Kenyan Legal 2013

[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:


THE LAW ON THIRD PARTY PROCEEDINGS

By Victor Kiamba

n any given civil proceedings, there are

two 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 the

Defendant 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 or Indemnity

2. He is entitled to any relief or remedy relating to or connected with the original 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 to or connected with the said subject matter is substantially the same

question or issue arising between the Plaintiff 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 Notice This 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

Defendant’s 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 Notice Within 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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©Kenyan Legal 2013

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 Defence When 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 Party Under Order 1 Rule 17, in the event

that a Third Party desires to dispute the

Plaintiff’s 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

©Kenyan Legal 2013

[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 Directions After 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.



SAUSAGE MACHINES? octor Stockman is pitted in the book of “An Enemy of the People” as an extremist but of

major 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 Raila’s newly launched book “Flames Of Freedom” which 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 ‘solidarity

while 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

Ibsen’s.

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 someone’s plans may be, he may not succeed in any

D

OPEN SPEAK

With Nelson Otieno

©Kenyan Legal 2013

political ambition outside ODM and TNA in Siaya and Kiambu counties respectively. The multi party’s

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

©Kenyan Legal 2013

CRIMINAL RESPONSIBILITY FOR OMISSIONS: 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 isn’t 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, can’t 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 the

ordinary 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 harm must be under the defendant’s control.

ii) The defendant offers no explanation; and

iii) While under his control, an accident happens, 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.

It’s 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 plaintiff a duty of care. A person can be as negligent as he pleases towards the whole 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 your neighbor. 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

I

©Kenyan Legal 2013

acts or omissions in question,” This is the Neighbor Principle.

ii) That the defendant failed to provide proper 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 defendant’s 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 it would 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 caused reasonably foreseeable?

2. Sufficient “Proximity” between the parties. 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 the court considers it fair, just and reasonable. Even if there is the requisite degree of proximity, like for instance a sufficiently close relationship of love and affection, a duty may still be denied if in the court’s 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?-don’t go to a gun fight with a knife-, and three, was it reasonably foreseeable on your part

©Kenyan Legal 2013

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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, don’t we?

Have a crime free Endeavour

To comment follow link:


In this Issue:

DO WOMEN REALLY HAVE A PLACE IN KENYA’S JUDICIARY? WHY RAILA AND KIBAKI GOVERNMENT WAS SUCCESSFUL WHERE IS KENYA HEADED TO?

DO WOMEN REALLY HAVE A PLACE IN KENYA’S 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 being crucified 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 proceedings saw 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

POWER PLAY Power, Politics &Governance

With Otieno Arnold Odiembo

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

Women in the Judiciary

©Kenyan Legal 2013

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 question to 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. Ang’awa amongst others. If these individuals are not protected then trust me we are headed for somewhere 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

©Kenyan Legal 2013

WHY RAILA AND KIBAKI GOVERNMENT WAS SUCCESSFUL UNITED WE STAND DIVIDED WE FALL” is a saying that has always raised qualms through my head rather than my thoughts but truly I came to agree with it

when I started analyzing things more critically. I came to realize a government manned by two individuals at almost the same level of power is better than one handled by one individual. Some may question the trueness of my adage but trust me it is backed by more than just a minute factual claim. During the tenure of Kibaki and Raila in the coalition government, I feel they ensured the best of this country both in the economic sense and also in the international ties between Kenya and other countries both locally within the continental context and the international view. When in power it was lucid that Raila ensured the connection of Kenya with the western world due to his known good relation in diplomacy. Raila ensured that we as a third world state received assistance both financially and any other way adequate to ensure out sustainability and ensconce as a country. With this, though we lived with debts ,but never was there an instance when the government was so broke to increase leave alone impose VAT tax to basic commodities. The aids and grants offered by the western countries really anchored our economy and well being as a state.

Auxiliary, it was also known that Kibaki had a good rapport with the Eastern nations which are known for their kernelty in the business sector and development of infrastructure. This in itself ensured that we got favor in

establishment of infrastructures like roads, airlines bridges inter alia. This ensured the beauty of our state and also the accessibility of it thus ensuring and promoting trade and also any other income promoting project.

The aforementioned luminously implore the benefits we as a country ensured from the Kibaki- Raila tenure as heads of states. Some may intimate my adage as being in favor or political based but trust me this is the bare bitter truth which can either be taken at its

positive edge or rather criticized to its fullest.

In comparison to the current government we only benefit from one angle which is rather risky to us as a nation than to our benefit. The normal human being is made to always go for what will ensure his or her reverting state than be a problem of cause problems. The current

government from my point of view is not in the best of terms with the western nations due to the current case status of the president with the ICC. Trust me this has led to us missing or rather deprived the so called western assistance which plays a big role in ensuring the well being of us. Hon Uhuru Kenyatta clearly focuses on one side of the coin which in this context is the eastern nations. The eastern nations inclusive of china clearly focus on business deals whenever they construct any beneficial infrastructure in this country. When china was up to building the Thika Super highway, they made a deal that ensured that this project would be initiated by the Chinese and also that the Chinese engineers were to undertake the project to its whole. When they cleared the construction, it was so

“

“In comparison to

the current government

we only benefit from

one angle which is

rather risky to us as a

nation than to our

benefit”

©Kenyan Legal 2013

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. To Comment follow link: www.otienoarnold.wordpress.com

©Kenyan Legal 2013

WHERE IS KENYA HEADED TO rom the first time I heard about the

burning of JKIA, it ran through my

head that this was the beginning of

Kenya’s 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 the

distraction 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 have

brought 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 it’s getting worse’.

The scenario at west-gate lucidly showed our

vision 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 adequate

answer 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 Kenya’s agenda

rather than other puerile things. It is time that we

see 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 whirlwind

quick recovery.

To Comment follow Link:

www.otienoarnold.wordpress.com

F

“Where the

parents are the

ones making the

marriage

agreement,

neither party to

the intended

marriage can

bring an order

for breach of

promise to

marry”

LEGALITY OF BREACH OF PROMISE TO MARRY

By Gabriel Pelu. arriage under the Matrimonial

Causes 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 unlawful

whereby 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 it’s 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

©Kenyan Legal 2013

[email protected]

Second year, School of Law

J.K.U.A.T

can bring an order for breach of promise to marry

because the contract was between the parents.

Where the parents bring such an action, they can

only receive back presents depending on who is

at fault for the breach of promise. Parents cannot

receive damages for the breach of promise to

marry. Court holds that; it is against public policy

and morality for parents to compel children to

marry against their wish.



Carla’s 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, couldn’t 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 couldn’t help chuckling. Our class representative surely had a way with words, did he just say

0830hours? Couldn’t he 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 Barlow’s

poem “Building the nation” crossed 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

CARLA’S DIARIES

©Kenyan Legal 2013

THE NEW CONSTITUTION AND THE YOUTHS

By 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 it’s our obligation as the youths to utilize the opportunity irrespective of our social or economic backgrounds. Our academic backgrounds also don’t have to limit us from 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 to associate, 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. It’s 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

©Kenyan Legal 2013

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:


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Second Year School of Law,

Kenyatta University

©Kenyan Legal 2013

LEGAL POSITIVISM: IS IT OR NOT IN KENYA?

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,

Kenya’s 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 its

test 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 there’s 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, Law’s Empire

(1986)” arguing that legal

positivism 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

I “Law is to bring

pleasure and avoid

pain, with pain and

pleasure as the

ultimate standards

on which Law is to

be judged”

©Kenyan Legal 2013

from the moral interpretation of Law. Dworkin’s

view is however often characterized as a ‘third

theory’ partly because it’s not clear where he

stands on question of whether there is a

conceptual relation between Law and morality.

Does Kenyan Law have a relation to morality or

not?

Jeremy Betham (1742-1832) brings in his

legal philosophy called “Utilitarian

individualism” whereby “utilitarianism” is a

theory in normative ethics holding that proper

source of action is the one that maximizes overall

happiness. He criticized the method of Law-

making, corruption and inefficiency in the

administration of justice and restraints on

individual liberty. The law in his view was to

emancipate the individual from bondage and

restraints upon his freedom; once the individual

was made free, he would be able to look after his

welfare. Law is to bring pleasure and avoid pain,

with pain and pleasure as the ultimate standards

on which Law is to be judged. As held by Betham,

Law in Kenya is viewed as to either merit an

individual with freedom and rights or to bring

bondage and/or punishment to law breakers.

The Legislature is the Law making body in

Kenya, being an arm of the sovereign

Government; accordingly, as stated by John

Austin (1790-1859), sovereign is the source of

law. “Every positive law or every law simply and

so called is set by a sovereign individual or a

sovereign body of individuals to a person or

persons in a state of subjection to its author”. He

further postulates that “positive law consists of

commands set as general rules of conduct by a

sovereign to a member or members of the

independent political society where in the

author of the law is supreme”, therefore,

accordingly, Austinian Theory is that Law has its

source in sovereign authority and there can be no

law without a sovereign, and every law is a

command of the sovereign accompanied by a

sanction. This comes under criticism and

subsequent improvements by Hans Kelsen.

Kelsen’s theory, as is well known, doubly

pure, free from psychological and sociological

investigations and it separates law from morality.

Hans Kelsen propounded a theory of law, which is

an improvement upon Austin’s theory, in his

essay, “The pure theory of Law”. He postulates

that law is a norm of action, normative science,

and remain valid even when they are infringed

and even when the indicated consequence has

not followed. Kenyan Supreme Court rulings

involving ‘punishment by death’ has not been

executed in the long recent past but still remains

valid. “State” is therefore a synonym for the legal

order which is nothing but a pyramid of norms.

‘Purity’ of Kelnite theory as his theory is

Universalist and not confined to any particular

legal system.

Next comes the replacement of “The

command theory” of Betham and Austin

effectively by “The rule of recognition” of Prof

H.L.A Hart (1907-1992). In essence that the

identification of law was to be made upon

observance of the behavior of legal officials and

how they identified rules in their society, Kenya’s

delegated legislation fully fits this view. Both

“The command theory” and Hartian “rule of

recognition” are examples of Joseph Raz’s

“Sources Thesis”, Law of a society is to be

identified by social facts alone. Hart also brought

up “separation thesis” which stated that “having

a legal right to do something doesn’t entail

having a moral right to do it”.

All about freedom but at the same time he

does accept the society’s need for a common

morality. John Stuart Mill argues that the

common morality may be utilitarian in nature

but it does not arrive from the divine but from

men who interpret the various natural

phenomena to achieve utilitarian government.

He postulates that trying to impose a moral code

©Kenyan Legal 2013

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Second year; School of Law,

Kenyatta University,


on society was unacceptable as it was an attack

on the liberties of the individual and also that

even if the state tried to impose such a moral

constraint on society, then it would make no

difference as it would have no effect on changing

attitudes. This I deem true as far as, for example,

the rule by Kenyan Law against F.G.M is

concerned-it is illegal.

In conclusion, legal positivism is the thesis

that the existence and content of law depends

on social facts alone and not its merits, and in

order to know your legal rights, you need to look

at what laws your society has, which is very

practical in Kenyan Legal Scene.



©Kenyan Legal 2013

TYRANNY OF THE URGENT?

o 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? He should 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

©Kenyan Legal 2013

THE LAW OF CONTRACT: AN INTRODUCTION

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 word promise 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 an acceptance 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'. There must 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 Company is an example of a 'unilateral contract'. In Australian 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

©Kenyan Legal 2013

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 had learned 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 courts will 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 girl obtained 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 consideration—it 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

©Kenyan Legal 2013

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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 of Freedom of Contract (1979) Clarendon Press ISBN 0-19-825342-7

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



©Kenyan Legal 2013

CRIMINAL JUSTICE AND HUMAN RIGHTS: 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

shall be inquired into, tried and otherwise

dealt with according to this code”

And section 3(2) which states that:

All offences under any other Law

shall be inquired into, tried and otherwise

dealt with according to this code subject to

any enactment for the time being in force

regulating the manner or place of

inquiring into, trying or otherwise dealing

with 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 it’s definition in attempt to pigeon

hole 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 and

time. They are universal.

Human rights represent legal and

moral limits of the government’s

power.

Human rights are ancient in origin.

Human rights are more sacred than

ordinary legal rights.

Human rights are supra-legal. They

do not depend on existence of

government or constitution.

©Kenyan Legal 2013

[email protected]

Second year; School of Law,

Kenyatta University,


Human rights are essential conditions

for a free and democratic society.

Fundamental human rights belong to

human 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 Hangman’s Noose

seems to be feeling so; maybe its justified,

or maybe not. Quoting one Stuart Banner:

“Whether phrased in Philosophical,

political or economic terms, the arguments

have been rooted in a basic moral question:

Are there Crimes so grave or any Criminals

so evil that death is the only just

punishment? Is it right for the state, acting

in our name, to put criminals to death?”

Blood defiles the Land, and it’s not about

being morally blinded or uptight on this, but

any reasonable man-whoever he is-should

feel the same and it therefore beats logic

why 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.



©Kenyan Legal 2013

JUDICIARY WATCH

Our new brand identity – A new promise 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 Kenya’s robust, indigenous, patriotic and progressive jurisprudence will be monitored, reported and also packaged as a product for export to other jurisdictions, and acknowledging our social

justice 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

©Kenyan Legal 2013

make a commitment to not merely be a provider of public legal information but the people’s 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 identity – KENYA 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 citizen’s 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 citizen’s 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 be updated 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.

©Kenyan Legal 2013

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

We Don’t Take Public Support for the Judiciary for Granted

Source: 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 destination – rather 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 not present 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 women’s rights.

“

©Kenyan Legal 2013

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 Kenya’s 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/

©Kenyan Legal 2013

Special thanks to:

i) The Contributors

Sheila Mokaya, K.U.S.O.L Otieno Arnold O., K.U.S.O.L Caren 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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th November 2013

With Complements:

Opondo Michael,

Managing Editor,

©Kenyan Legal 2013

All Rights Reserved.


the kenyan legal issue 1

News & Politics

consensus

res ipsa loquitur

comment follow

chief judge

contributors

jkuat kenneth

kenyan penal

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