CRIMINAL LITIGATION
Types of pleas acquitPlea of not guilty
Plea of guilty
Autrefois acquit – where the accused was charged and acquitted of the similar charges under the same facts
Autrefois convict – where the accused was charged and convicted of similar charges under similar facts
Double jeopardy – where the accused was already charged of the same crime under the same facts
Pardon – the accused says that he was previously pardoned over the same crime
Difference between review n judicial review
Review is the reconsideration or re-examination of a decision so as to amend or alter it where its desirable or necessary. It is a second look at a decision already made by the authority which made it. Its done on certain grounds:- where there is discovery of a new and important matter or evidence; where there is an error apparent on the face of the record, or for any other sufficient reason. The discovery must be new, important, due diligence had been exercised so as not have found it and it could not be produced before the decision in question was made.
Judicial review is an application made to a higher authority to review the decision made by a subordinate authority. Its made to review the manner in which a decision was made.
Difference between judicial review n appeals
Judicial review is meant to ascertain the manner in which a decision was made. The court’s exclusive concern is with the legality of the administrative action or decision in question. In appeals, the court is concerned with the merits of a decision. The court substitutes its own decision for that of some other body.
Duplicity of charges on a charge sheet
A charge is a formal written accusation or complaint against a person for an offence provided for in law. It is drawn by a magistrate or a police officer and signed as required by law. Black’s Law Dictionary defines duplicity of charges is the joining of two or more offenses in the same count of an indictment. It is a legal requirement that a charge should not suffer from duplicity. Duplicity occurs where the charge or count charges the accused of having committed two or more separate offences the charge is barred for duplicity. Duplicity can be avoided where a statute creates offences in the alternative, Section 86 of the Traffic Act provides for offences created in the alternative e.g. causing death by driving a motor vehicle:
a) driving recklessly;
b) driving at high speed.
c) Driving in a manner dangerous to the public.
d) Leaving the motor vehicle on the road in a manner dangerous to the public.
All these are stated in the alternative so that you cannot be charged of two or more but only one of the alternative.
Insanity proceedings
Insanity is any mental disorder, which is severe enough to prevent a person from having legal capacity, and excuses the person from criminal or civil liability. Insanity arises in two instances:
The first one is when it is alleged as a defence, that is, the person was insane at the time of the act which now constitutes the offence.
The second is what has been termed in other jurisdictions as procedural insanity, that is, where the person, though sane at the time of the act, no longer enjoys the same degree of sanity to such an extent as to render him incapable of understanding the charge and or making his defence.
Procedure in insanity - sections 162-167 of the Criminal Procedure Code.
Section 162 – Court inquires as to the soundness of an accused’s mind if in the course of a trial the accused is incapable of making his defence because of unsoundness of mind. If so, it postpones the proceedings but where the court finds the accused fit to continue with the trial then the proceedings will continue.
Section 163 – where the accused applies for bail, court may release him on condition that sufficient security has been given that the accused will be cared for well and that he will be prevented from injuring himself or any other person and that his presence in Court shall be guaranteed. Where bail is denied due to insufficient security, the Court may order that the accused be retained in safe custody and then transmits the Court record or a certified copy to the Minister for the President’s consideration.
The president upon consideration may order that the accused be detained in a mental hospital or other suitable place of custody and the court shall issue a warrant which shall be sufficient authority for the detention of the accused till the president makes a further order in the matter until the court which found him incapable of making his defence orders him to be brought before it again in the manner subscribed in Sections 163 and 164.
The court will make such determination through the report of a medical officer. Where the medical officer of a mental hospital or place of custody where the accused has been taken, finds the accused incapable of making defence, the officer is to forthwith make a certificate to that effect to the Attorney General. The AG in turn is required to inform the court whether the state intends to continue with the proceedings against the accused or not.
Where the AG indicates that he does not intend to continue with the matter, the accused is to be discharged but that is not a bar to subsequent proceedings against the accused on the same facts. on the other hand where the AG says otherwise, the accused shall be brought before court and the proceedings will start a fresh as if the accused was brought to court for the first time.
Section 164 provides that subject to the report of the medical officer, the court may order that the accused be brought before court and where the court finds that the accused is still incapable of making his defence then the court shall act as if the accused was brought before it for the first time.
Section 166 is to the effect that where the court finds that the accused committed an offence but was insane, so as not to be responsible for his acts or omissions, the court is to make a special finding to that effect. The court is further required to submit the finding to the president who will make further orders for instance the accused to be detained in custody or in any other suitable place. It is worth to note that the burden of proving an averment of insanity lies upon the defence because in Section 11 of the Penal Code, every person is presumed to be of sound mind until the contrary is proved. However, where the accused does not raise the issue of insanity, the court will not make a finding under Section 166(1) of the Criminal Procedure Code. However, the CPC does not outline a clear procedure to be adopted in situations where a defendant refuses to raise and/or plead the defence of insanity. Section 167 of the Criminal Procedure Code provides for situations where, although the accused is not insane but he is unable to understand proceedings in court.
Elements of a crime
Actus reus – the prohibited act or omission. The prosecution must prove beyond reasonable doubt that the accused has committed the prohibited act
Mens rea – the intention to commit a crime. Prosecution must show that the act was done voluntarily and that there must have been some foresight of the consequences. No act is punishable if it was done involuntarily e.g. while the person was sleepwalking or suffering from a concussion or insanity. There are offences where liability is strict and mens rea doesn’t have to be proved e.g offences under food drugs and chemical substances act. There are also offences where actus reus need not to be proved, those under vicarious liability.
Difference between murder and manslaughter
In murder the accused must have been proved to have the malice aforethought to cause the death of another whereas this isn’t the case in manslaughter.
Framing charges
Statement of the offence based on description of what offence has been committed.
Particulars are the words which will describe the offender and it will also briefly describe the particulars of the offence. It will describe the property or goods which are the subject matter. If the goods are specific, there will be a proper description of the goods. The particulars are supposed to reveal the ingredients of the offence.
Forms in a prosecution file
Initial report
Documentary evidence – list of exhibits and witnesses, documentary exhibits
Accused’s records – his statements
Investigation diaries
Experts reports
Witness statements
Copies of the charge sheet
Covering report
Correspondences
Defence file
Instruction note
Client attendance form
Court attendance form
Charge sheet
Legal opinion/brief
Fee notes
Copies of documents for bail application
List of Accused’s property when arrested
Copy of prosecution file
Legal research – laws and cases to be relied on
Case strategy, defence case – statements made by the accused
Defence witnesses statements
List of authorities cause list
correspondences
Difference between n a decree and an order
A decree is extracted from a judgment whereas an order is extracted from an interim application
Difference between judgment and sentencing
Judgment – means the adjudication by the court that the defendant is guilty or not guilty.
Sentencing - procedure at which a court of law of competent jurisdiction makes an order on the specific penalty to be meted out to the criminal after convicting him.
What to do if a client pleads guilty
Ascertain whether the client understands the charges made against him and advise him on the consequences of making that kind of plea. Ascertain whether the client based on the facts voluntarily committed the crime so as to form a strategy for his defence.
The Trial process
Starts by way of a complaint. The complaint is done through the police process. Person alleging is required to write statement, produce witnesses, record witness statements, if an offence has been committed police make the decision to arrest the culprit and take him to court.
Complaint- Arrest- Charges- Plea- Trial- Judgment- Sentence
HOW CRIMINAL CASES ARE INITIATED - Criminal cases are initiated by a complaint being lodged. A complaint can be lodged with the police or the magistrates but the proper way is with the police. It will be recorded in the Occurrence Book in the Police Station stating who the complainant is and what the complaint is. The decision to file a case depends on the information in the OB, the police will take a statement from the complainant, visit the scene of the incident, take notes of any breakages if any, if it is a murder scene, they will make photographs of the scene and make arrangements for the body to be examined by a pathologist. Once the police decide what kind of offence has been committed, they draw a charge sheet.
Structure of courts
Supreme court – has 7 judges CJ is the President DCJ is the vice president
Has original jurisdiction – presidential election petitions
Appellate jurisdiction – from C.O.A and various tribunals
Advisory jurisdiction – to government, authorities
Court of appeal – has not less than 12 judges
Has appellate jurisdiction – cases from the High Court
High Court/Industrial court/Envt and Land court
Has original jurisdiction for murder cases
Appellate jurisdiction – cases from C.M.Court, tribunals
Admiralty jurisdiction
Supervisory jurisdiction on subordinate courts
Constitutional cases
Cases on violation of Human Rights
Chief Magistrate Court -, value not exceeding 500,000
Senior Principal Magistrates Court - value not exceeding 500,000
Principal Magistrates Court - value not exceeding 300,000
Senior Resident Magistrates Court - value not exceeding 300,000
Resident Magistrates Court - value not exceeding 100,000
District Magistrates Court Grade 1 - value not exceeding 20,000
District Magistrates Court Grade 2 – petty offences
District Magistrates Court Grade 3 – practically non existent
Plea taking – the accused goes to court and the charges as laid out are read to the accused. The charges must disclose an offence. If an offence is not disclosed the court may discharge or a fresh complaint may be put in the court. if the charge is proper, it is read to the accused and the accused is given an opportunity to respond. In case of petty offence like drunk and disorderly the charges are read and the accused person pleads. In case of serious cases if the accused person pleads guilty the court prosecutor is required to go through the file and give evidence of what is contained in the police file. Then the accused person is required to respond to the charge. If they agree with the facts as set out in the prosecution file, they are convicted on their own plea. If the accused person does not agree with certain things in the prosecution file or dispute facts the court will enter a plea of not guilty or a plea of pardon, autrefois acquit/convict.
CIVIL LITIGATION
Res gestae – a fact or opinion which is so closely associated in time, place and circumstances with some act or event which is in issue that it can be said to form a part of the same transaction as the act or event in issue, is itself admissible in evidence.
Res Judicata - means the conclusiveness of judgment. This Section requires that once a matter has finally been decided by a competent court, nobody can be permitted to open it in subsequent litigation. Res Judicata can apply in both a question of fact and a question of law. Where the court has decided based on facts it is final and should not be opened by same parties in subsequent litigation. The only way to avoid it is where there is a pending appeal or where an appeal has been successful and therefore the decision has been reversed then one cannot plead res judicata. If no appeal lies of right or an appeal has been dismissed, under Section 7 one can plead res judicata, the parties will not be allowed to litigate on the same issue. In order to know whether res judicata applies between co-defendants, 2 things must exist
There must have been a conflict of interest between the co-defendant;
It must have been necessary for the court to decide upon that conflict in order to grant the relief sought by the plaintiff;
The questions between the co-defendants must have been finally decided; and
The co-defendants must have been proper and necessary parties.
Difference between res Judicata and sub judice - With regard to res judicata it relates to a matter already adjudicated upon while sub judice relates to a matter pending for trial or judicial enquiry. One of the two doctrines bars trial of the suit where the matter in issue has already been adjudicated upon in a previous suit this is res judicata, sub judice bars trial of a suit in which the matter is pending. Under what circumstances can one raise objection on the basis of res judicata and sub judice? Once the matter is decided unless there is an appeal you can raise objection under res judicata but where there is an appeal one can raise sub judice
Difference between res judicata and estoppel – Estoppel is a doctrine of equity which has been accepted for century as a mode of ensuring justice is done as between parties where the law does not satisfy that requirement. One may look at res judicata as a branch of the law of estoppel and we have estoppel by verdict or estoppel by judgment or by verdict and the rule of constructive res judicata is nothing else but a rule of estoppel.
Judgment in default of defence and appearance – A Judgment is a statement given by a Judge on the grounds of a decree or Order. Default judgment – Made when either the defence fails to enter appearance to defend within 14days of service of summons to enter appearance or when the plaintiff fails to appear for determination of the suit
. Assuming the defendant has been served and opted not to defend the plaintiff may apply for judgment in default of defence. Where either party fails to appear for the hearing the other party may apply for judgment in default of appearance.
Ganishee Proceedings Order 23 – where one has a decree but property of the judgment debtor is not in the hands of the judgment debtor. These are proceedings instituted by the decree holder against a third party holding property of the judgment debtor.
Interpleader proceedings - Arises when a person holding property applies to court to determine between two adverse parties claiming the property, who should get the property. Application is by originating summons
Cross examination of witnesses – one is allowed to ask leading questions, question a witness on previous testimony and it is not restricted in any way. There are 3 aims of cross examination
To elicit further facts which are favourable to the cross examining party;
To test and cast doubt on the evidence given by the witness in chief;
To impeach the credibility of the witness.
What to do before u institute a suit - Serve the defendant with a demand letter
Content of a demand letter
Name and address of the advocate, client and recipient
Facts of the case
Act/breach committed
demand
damages sought
threat/consequences of not heading to the demand
Elements of defamation
Defamation is a false statement about a person to his discredit which exposes him to hatred, ridicule and causes him to be shunned or avoided by right thinking members of society.
Forms: libel – permament form e.g written, printed artistic work, picture
Slander – merely spoken, in form of a sign or a gesture
Elements: the statements are false; Defamatory; clearly referred to the plaintiff, published to a third person
Defences in defamation:
justification - the statement is true
Fair comments on a matter of public interest
Absolute privilege – parliamentary proceedings, judicial proceedings, statements between advocates and clients and those between husband and wife, state communication.
Qualified privilege – reports on parliamentary and judicial proceedings, statements made in the performance of a duty i.e statements made to protect an interest
Offer of amends - publication of apology and deposit of a sum of money in court
Consent of the plaintiff to the publication
Difference between set off and counterclaim - Counterclaim happens when the defendant has some claim against the Plaintiff. Usually the option is that the Defendant will have a choice either to institute a separate suit or set up their claim in the defence
A set off happens where the plaintiff has a claim of 1000 and the Defendant argues that the Plaintiff owes him 500/- you settle for a set-off
There are two major distinctions
A set-off maybe described as a shield which operates only as a defence to the plaintiff’s claim; whereas
A counterclaim may be described as being both a shield and a sword. A Counterclaim is basically a cross-action and is in fact usually treated as a separate suit even for billing purposes by advocates.
When you draw up a counterclaim and serve the plaintiff, the Plaintiff must draw a defence to the counterclaim and serve the Defendant. The defence must be specific and what is not denied is deemed to have been admitted. Whenever you have set-off the plaintiff has to reply to it.
Is a counterclaim separate document from a defence
A counterclaim is usually treated as a separate suit but in most cases to avoid multiple suits and reduce costs it forms part of the defence
Trespass: Unlawful interference with one’s body or property without consent.
Trespass to person includes – assault threat to cause grievous harm, battery actual infliction of harm false imprisonment unlawful restriction of a persons liberty
Trespass to land –
There must be interference
The interference must occur on the possessor’s land or property
The interference must be voluntary/ deliberate/ intentional
The plaintiff must possess the land
The act that caused the trespass must be direct
Defences In trespass to land – Neccessity, Lawful Authority, Licence
Summary judgment
It may be obtained in 2 separate areas
Where the relief sought by the Plaintiff is for a debt or a liquidated claim;
Where the claim is for recovery of land with or without a claim for rent and profits. It is for very straightforward cases
Interlocutory judgment-
The court will give an interlocutory judgment (temporary or in between) if the sum sought is an unliquidated claim.
Liquidated and unliquidated damages
Liduidated – specific figures are given
Unliquidated – not specific
.
Mitigating circumstances
If a person is sightseeing on a high building, sees an accident and falls down and dies whom do u sue – one may sue the owner of the building if the building does not have preventive measures to ensure the safety of persons
Negligence - this is an act or omission which a reasonable man would not do/omit. Elements to be proved;
That the defendant owed the plaintiff a duty of care
That the duty has been breached by the defendant
That the plaintiff has suffered damages as a result of the breach
It gives rise to the Neighbor principle – in Donogue v Stevenson – it was stated that a person ought to bear in mind the consequences of his actions on his neighbor, and a neighbor is a person who is closely or directly affected by the results of ones action.
Rylands v Fletcher – the principle of Strict liability
A person who in the course of an unnatural use of his land accumulates something that would harm another if it escapes is liable for the damages or injury caused by the escape of the harmful object.
Defences of nuisance - Nuisance may be public or private. Public nuisance is some unlawful act that endangers or interferes with the lives, property and comfort of the public e.g. an obstruction of a road. Private nuisance is the unlawful interference with the enjoyment or another’s use of land e.g. loud noises, smells, smoke
Defences include:
Statutory authority
Triviality – the act or omission is small
Lawful use of land – the act is lawful
Reasonable act or omission
Prescriptive right – the act had been going on for a period of time without the plaintiff making a complaint
Ways of commencing a suit
By plaint; notice of motion; originating summons, petition, appeal
What to consider before instituting a suit/Essentials of a Civil Suit
There must be a court of competent jurisdiction
There must be parties
There must be a course of action
There must be pleadings
There must be a subject matter
There must be relief sought and prayed for;
There must be service of those pleadings; service and summons
There must be appearance.
Judicial review , at what stage does the suit commence – this is an application to question or seek to have reversed the decision of a public body based on an illegality. Done in the high court. Section 8 of cap 26 provide for 3 prerogative orders:
Certiorari - It is an order for quashing or reversing an action of a public body/authority. It must be brought within 6 months. Order 53 Rule 2
Prohibition - Restrains a public body from doing that which is illegal or infringing on the rights of the applicant. Order 53 Rule 1-leave is mandatory
Mandamus requires a public body to do a duty imposed on it by law. Apply only after requiring the public body to act and it has failed.
An ex-parte application for leave by way of chamber Summons, accompanied by a statement setting out the remedies sought and the grounds on which they are sought and a verifying Affidavit. Leave may be granted free or with terms e.g. Costs, giving security. Application be made by way of notice of motion within21 days after leave has been granted. R. 3(1)
Notice must be served upon every person who may be directly affected by the order. Rule 3(2)
An affidavit of service indicating the date, place and time of service, and who was served must be filed before the notice is set down for hearing. Rule 3(3). R. 4(1) Copies of the statement accompanying the application for leave is to be served with the notice. Fix the hearing date 8 days after service of the motion. Hearing is restricted only to the grounds and reliefs set out in the statement accompanying the application for leave.
Defend kethi
How do u enter appearance
Once you receive the summons, a party must enter appearance by filing a Memorandum of Appearance and you can enter appearance yourself or your advocate can enter appearance on your behalf. There is a standard document for this. If a person does not enter appearance, judgment can be entered in default of appearance.
Modes of terminating proceedings
Stricking out of pleadings - on the ground that—
(a) it discloses no reasonable cause of action or defence in law or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the court,
Summary judgment
Where the defendant is nowhere to be found how do u effect service - the court may on application order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit.
A person out of the country - In such a case you can serve them outside jurisdiction only after the court grants you permission to do so. You will apply to the court for leave to serve outside the jurisdiction of the court. Application is by way of Chamber Summons supported by an Affidavit. Normally you will tell the court the mode of service that you want to use.
How do you serve a foreigner? Service can also be ordered by the High Court anywhere in the commonwealth. You can serve a foreigner within Kenya provided the course of action against them arose in Kenya and if the foreigners are lawfully in Kenya and on their own volition.
Where the defendant is a public officer or an officer of a local authority, the court may, if it appears to it that the summons may be most conveniently so served, send it for service on the defendant to the head of the office in which he is employed, together with a copy to be retained by the defendant.
Where the defendant is a soldier (but not an officer), the court shall send the summons for service to his commanding officer, together with a copy to be retained by the defendant.
Service on the government -The Attorney General being the government legal adviser is mandated to receive all legal service where the government is a party; you can serve the AG personally or deliver the summons to the offices that he occupies in his legal capacity. You can also serve an agent of the Attorney General. In normal practice the Attorney General has mandated personnel who can receive services on his behalf. You can also serve the AG by registered mail and the time within which delivery should be effected should be same as that or ordinary post.
Service on a corporate or company? The accepted practice is to serve the company secretary, a director or any principal officer of the company. When serving the principal officer one must take full particulars of the officers and indicate it in the affidavit. If you cannot find any of these persons then you can effect a service by way of registered post to the last known available address of the corporation you can look this up in the company registry.
How to effect service to aperson in jail/ In police custody - the summons shall be served on him personally in the presence of the officer in charge of the prison or serve the officer in charge of the prison and if in a police station you serve the OCS and normally you would have to explain to them who the person is after confirming that they are in their custody. Whoever receives the document has to sign at the back of the copy. You need an extra copy to leave to the officer in charge and one to give to the defendant. You must ensure that your service is acknowledged and always make a return of service.
When does the defendant have a right to begin
Where the defendant admits the facts alleged by the plaintiff but raises an objection on a point of law, the defendant will be entitled to make his submissions on the point of law. E.g. an objection on limitation of cause of action being time barred by the Limitation of Actions Act or matter is res judicata or subjudice. Practice is that the objection should be raised at pleadings. Although nothing prevents one from raising it at the time of trial.
Where the defendant admits the fact alleged by the plaintiff but states that the plaintiff is not entitled to begin e.g. suit for recovery of an alleged debt and in this case the defendant admits the facts, that in fact he did receive the money from the plaintiff but that the money was not a debt but rather a gift and is therefore not liable to repay the money. In this case the defendant shall have right to begin in order to make submissions in order to show circumstance why the money should not be paid.
The status of justice ombijja after being declared unsuitable to serve the judges n magistrates board
Third party proceedings - These are proceedings instituted to include a party(s) to a proceeding as defendants. The rationale for 3rd party procedure is to prevent a multiplicity of actions. The 3rd party is brought to avoid multiplicity and to avoid the same facts being tried with different results. In 3rd party proceedings one can claim indemnity or contribution. Indemnity is where a party is alleging that they are entitled to reimbursement. This could arise from court or contract. For example under the Law of Insurance the insurance is bound to indemnify the insured if liability is proved. Indemnity can also arise from a tort. Contribution is partial indemnity, simple one is saying that they are supposed to pay but somebody else is also responsible and should pay a portion of the liability.
Instances when you can settle a suit out of court
Plaintiff may discontinue suit;
Plaintiff may withdraw part of his claim.
Defendant may submit to judgment.
Defendant may make payment into court in satisfaction of the plaintiff’s claim.
Defendant may compromise with plaintiff on certain terms.
What is a judgment? A Judgment is a statement given by a Judge on the grounds of a decree or Order. It is a final decision of the Court to the parties and the World at large by formal pronouncement or delivery in open court. Order 20 Rule 4 to 5 set out essential elements of a judgment:
contain a concise statement of the facts of the case;
Contain issues for determination;
The decisions on each of those points;
Reasons for each of those decisions.
Striking out of pleadings: Order 51 Rule 13 The court may at any stage of the proceedings order to be struck out or amended any pleadings in an action or anything in any pleading on the grounds that
It discloses no reasonable cause of action or defence;
It is scandalous, frivolous and vexatious.
It may prejudice, embarrass, or delay fair trial.
It is an abuse of the process of the court.
PROBATE
Types of grants
Grant of probate – made in respect to all the property to which the will provides
Grant of letters of administration :-
Grant Of Letters Of Administration With Will Annexed - made in circumstances where either:-
the deceased left a valid will, but there is no proving executor, i.e the will does not appoint an executor(s) or
the executor(s) appointed has pre-deceased the testator or the executor(s) has renounced executorship or
the executor(s) appointed has been cited to take out a grant of probate and has failed to do so (S 63 the LSA).
Made to the following:-
The universal or residuary legatee, (person entitled to the remainder of the estate after payment of debts/liabilities and distribution),
A personal representative of the residuary legatee,
The person or persons entitled to the administration of the estate of the deceased if he had died intestate,
The public trustee,
Any other legatee and creditors
Grants of Simple Administration –
the deceased dies totally intestate or
where his will is invalidated and
where intestacy is partial, it will be made in respect of property that is not dealt with under the deceased’s will. Made in order of affiliation to the deceased
Limited Grants
(a) Grants Limited as to purpose
(i) Grant ad colligenda bona (S 67 LSA) – limited to the purpose of collection and preservation of the assets, applies to assets likely to be wasted before getting a full grant e.g. perishable goods. A full grant takes about 2 months and within that time assets may be wasted.
(ii) Grant ad litem – issued for purpose of commencing/defending legal proceedings where the estate is a party to the suit (paragraph 15 of the 5th Schedule to the LSA)
(iii) Grant pendente lite - is granted where there is a pending suit relating to the estate. Such grant is issued so that the estate is administered during the dispute or pendency of suit. It is limited to the duration of the pendency of the suit.
(iv) Grant de bonis non administrates – issued to administer an unadministered part of the estate or where estate is incomplete or partially administered because the administrator has left the jurisdiction, died or abandoned his administrative responsibilities
(v) Cessate grant – issues where the original grant was limited as to time and that period has now expired leaving administration of the estate incomplete.
(vi) Temporary grant by a resident magistrate (S 49) – issued by the resident magistrate. Similar grant to the ad colligenda bona except that in addition to collection and preservation of assets, the holder has authority to pay debts.
(b) Grants Limited as to property - Under paragraph 13 of the 5th Schedule.
It may be granted where a testator appoints executors only for certain assets in a specified area e.g. an executor for Mombasa property and another for Kisumu property. Also applies to where deceased is domiciled elsewhere but has property in Kenya. Grant will be limited to his property in Kenya.
(c) Grants Limited as to time - Paragraphs 1 to 10 of the 5th Schedule, and S 49 of the Act.
(i) Grant durante aetate minore - taken out where either the executors or the administrators are minors and as such they are not entitled to a grant in their own right The grant automatically expires when the minor reaches 18 years old, unless some other time is specified by the court.
(ii) Grant durante absentia - Where the personal representative is outside the jurisdiction, the court may grant representation to another person limited to the duration of the absence of the personal representative (paragraphs 4, 5 and 6 of the 5th Schedule).
(iii) Grant where will is unavailable - Where the deceased had made a will, but the same is lost, misplaced or unavailable a limited grant may be given until the original or more authentic copy is found or availed
(iv) Administration for use and benefit of a person of unsound mind - Where the person who would be solely entitled to the estate of the intestate is mentally incapacitated, Grant limited to duration of disability.
(v) Temporary grant limited to collection of assets and payment of debts - This is provided for under S 49 of the LSA and rule 37 of the P & A Rules. It is related to the grant ad colligenda bona, the only difference between them being that the limited grant under S 49 goes beyond collection of assets to cover payment of debts. It is made pending the making of a full grant.
(vi) Special limited grant LN No. 39 of 2002 –made in special circumstances where the urgency of the matter is so great that the court cannot make a full grant within sufficient time.
Foreign Grants - If the deceased has movable assets outside Kenya, it is necessary to obtain in that country a separate grant that fulfils the probate requirements of that country. For real (immovable) property only the law of Kenya will apply. S 4(1)(b) provides that succession to the movable property of a deceased person, wherever situated, shall be regulated by the law of the country of the domicile of the person at the time of his death
Relation of criminal law to probate
The importance of the existence of the two elements of a crime incases of murder. A person who murders another cannot benefit from the property of the person he has murdered. The murderer is treated as though he died before the deceased.
Intermeddling with the property of a deceased is a crime.
Who is an executor - person appointed by the testator under his will to administrate his peoperty and distribute it among his beneficiaries. He derives his authority from the will. The executor applies for the grant of probate and another other necessary grant.
How to deal with an estate of a person who has died intestate
Section 35 governs the monogamous situation where the couple has children. In such cases the surviving spouse is entitled to the personal and household effects of the deceased absolutely with a life interest on the whole residue of the net intestate Estate.
Section 36 where the deceased has left one surviving spouse but no child or children. The surviving spouse is entitled out of the net intestate to the following:
To the personal and household effects of the deceased absolutely;
To the first Kenya Shillings 10,000/- out of the residue of the net intestate Estate; or 20% of the residue of the net of the intestate Estate whichever is greater;
A life interest in the whole of the remainder i.e. over the 80% of the residue,
Section 38 deals with the situation where the intestate has left a surviving child or children but no spouse. In such circumstances the net intestate devolves upon the child or children.
Section 39 is about where the intestate leaves no surviving spouse or children either because he/she never got married or they predeceased her, the property should devolve upon the kindred of the intestate or blood relatives of the deceased in the following order of priority;
Section 40 - This provides for division of the property of an intestate where the deceased is a polygamist. The Estate of such a deceased person should be divided as follows:
His personal and household effects and residue of the Estate should in the first place be divided among the houses according to the number of children in each house;
The Estate is divided in accordance to the number of children in each house.
If the testator makes an oral will because he fears he’ll die of cancer n two weeks later he’s involved in an accident and dies is it an oral will
Section 5 a testator has testamentary freedom. Section 8 a will may be oral or written. Section 9 an oral will is valid if made in the presence of two witnesses and the testator dies within 3months after making the oral will
Gift inter vivo and donatio mortis causa
Gift inter vivo means that the transfer of the property becomes operative during the lifetime of the donor whereas a donatio mortis causa is a gift made in contemplation of the death of the donor and it passes to the donee after the death of the donor. It resembles a gift inter vivo in that it takes effect when the delivery takes place but it only becomes absolute if the donor dies
How is a will revoked
Section 5 of LSA provides that a person has testamentary freedom to make a will. Section 8 a will may either be oral or written. If oral there should at least two witnesses and the testator dies within 3months of making the will(section 9 &10). If written it should be executed and attested to. A will may be revoked section 17. Section 18 it may be revoked by :- total destruction ie tearing or burning; by marriage unless it was contemplated; by writing another will or codicil; where the will is lost without trace
How do you relate revocation by destruction to the law of evidence
Where the will is being contested upon and it has been destroyed by destruction the rules of evidence demand that for the revocation to be valid two things must be proved. That the testator had the intention the actual destruction of the will and an intention to revoke the will. Both elements must be present. The actual destruction must be by burning, tearing or otherwise destroying the will.
ejusdem generis rule
Who is an administrator, executor and trustee n how are they appointed
Executor – A personal representative appointed under a will to distribute the property of a dead person according to the terms of the will. Section 6 of the Law of Succession Act provides that a testator may appoint his executor or executors by will
Administrator – A person appointed by the court in case of intestacy, and in testate cases where there is no proven executor
Public Trustee – An office in the Attorney-General’s chambers, which is designed to administer the estates of those persons who have appointed it to act as such or those who have failed to appoint anyone at all
Procedure for obtaining a grant of letters of administration where there is no will The beneficiaries chose among themselves a minimum of two people and a maximum of four people to make the application. The application is made with the consent of the beneficiaries, accompanied with the will, list of beneficiaries, property, death certificate, fees of 2,750.
It takes the form of a petition and is filed in the High Court registry. The court order for its advertisement in the Kenya gazette, then the grant is made after 30days where there is no objection. The applicant apply’s for its confirmation after six months.
Procedure for a grant of probate and letters of administration with will annexed
The executor is the person to apply for the grant. Application is by a petition accompanied with the original will and 2 copies of it together with the original death certificate of the testator. The file is filed in the High Court registry and the judge orders for its advertisement in the Kenya gazette. After 30days without any objections made a letter for grant is issued. After six months the grant is confirmed
Resealing
Foreigner with property in Kenya
The grant is applied in his country of origin, after being granted it’s filed in the high court in Kenya and the normal procedure of gazettement is done.
Kenyan residing in a foreign country
Grant is applied in the country of a persons domicile. Commonwealth countries allow application for grant in any of its countries. The grant is then filed in the High court in Kenya and the normal procedure takes place.
A grant made in the High court may be presented in another country for resealing
Competent witness in probate – A person of sound mind and of full age.
CONVEYANCING
Documents in a professional undertaking
This is an unequivocal declaration of intention addressed to someone who reasonably places reliance on it
Constitutionality and effect of new land laws
Last conveyancing lecture
Article or section 86
Duties of a purchasers advocate
PRELIMINARIES
Conduct a client interview to get acquainted with the transaction and obtain instructions, discuss fees, ascertain clients financial arrangement. Advise client on conducting a survey then verify the report, taxation matter i.e. rent rates stamp duty
INVESTIGATION
Verify the title document from the vendor/ his advocate. Conducta search, make pre contract inquiries and requisitions, physical inspection of the property
CONTRACTUAL STAGE
Receive and hold the deposit in the clients account. Verify the draft contract and make pre contract inquiries. Consider sellers replies to pre-contract enquiries and requisitions. Consult the same with the buyer and amend the draft contract as necessary and return to seller.
DELIVERY
Arrange for the execution of the contract then return engrossed and executed contract together with deposit cheque to the sellers advocate. Receive counterpart contract signed by the seller Draft conveyance and send it for approval and upon approval engross it
COMPLETION
Make pre-completion searches. Make further preparations for grant of mortgage and ensure that this is in place. Arrange for execution by the buyer and receive all monies (disbursement, fees, balance of purchase price and apportionments). Attend completion and report to client. Stamp conveyance & Mortgage. Get conveyance endorsed with assessed value and lodge the conveyance for registration. Make post completion searches, Account to client and release title documents to client.
Contract completion documents for land bought in the CBD
Original title Rent Clearance Certificate, Rates Clearance Certificate,
Land Commissioners Consent, Transfer Document, Rent Receipts,
Nemo dat quod non habet rule
A person can only receive title to property from the legal owner the property. A person cannot transfer title which himself doesn’t have.
Joint tenancy and tenancy in common
Joint tenancy – all unities are present. Title, possession, time and interest but for tenancy in common the unity of time is missing
Where are searches conducted
Lands Registry, Companies Registry, survey department
Contract completion documents for agricultural land
Original title, land control board consent, rates and rent clearance certificate, transfer document, spousal consent
Pre contract searches for the purchaser
Inspection of title records or register at the Lands Registry Search, search at the Companies Registry to confirm existence of the Vendor or solvency of such Vendor, search at the Local Authority Registry to ascertain any planning hindrances or notices, search at the Survey Department to reconfirm or identify boundaries
Ways of investigating title
Searches - Written request to the registrar to carry out a search. Results are guaranteed by both the registry and the government as accurate. One may be indemnified for any loss resulting from a defective search. Discovers entries made that may restrict registration of a conveyance on the land. Encumbrances are discovered.
Pre-contract inquiries - Touch on the physical stature of the property
Fetch information that would not ordinarily be available through an official or personal search
Helps to ascertain the value of the property; physical and patent defects; ascertain those in occupation; boundaries; check on the fittings and fixtures if any.
Requisitions – these are queries or objections that arise from the investigation of the title
the purchasers advocate is responsible for the following:
Carrying out the search
Scrutinizing title documents
Approving sale agreement and sends out requisition for the same
Preparing transfer or conveyance and engrosses the same
Attending to the execution of conveyance or transfer where necessary
Stamping and lodging documents for registration
Obtaining and paying the purchase monies to the vendor’s advocate
Vendor’s advocate should carry out the following fundamental duties:
Prepares agreement
Prepares title documents
Approves transfer/conveyance
Procures execution of transfer of conveyance
Attests the execution of a transfer or conveyance
Receives and accounts for the proceeds of sale to his client
Duties of an advocate acting on behalf of the bank (financier)
Make an undertaking of releasing the funds on registration of the property and mortgage
COMMERCIAL
Corporate bankruptcy – arises where
Conversion of a business to company
This transaction requires that a Notice of Cessation (Form BN/6) be prepared by the advocates and presented at the Registrar of Companies. This document notifies the Registrar that the owners of a particular business wish to stop using a particular business name. It will be presented together with the Original Certificate of Registration of the Partnership. Once the Notice of Cessation has been approved at the Registrar of Companies, the advocates should reserve the name that the clients wish to use for the company they intend to incorporate. This is done through a letter to the Registrar requesting him/her to conduct a search confirming that no company by that name exists, and if so, to reserve the name
Essentials of a contract
Offer and acceptance
Intention to create legal relations
Consideration
Parties have capacity to contract
Parties must consent to contract freely n without fraud or force
Objective of the contract must be legal
Racial discrimination in a company n how do u deal with it as an advocate
Grounds for Winding up by court
Special resolution by the co. that it should be wound up by the court.
The co doesn’t deliver the statutory report to the registrar or defaults to hold the statutory meeting.
Inability of the company to pay its debts.
The co. hasn’t commenced business within a year of its incorporation or has suspended its business for a year
The no. of members of the co. has reduced (private co. below two, public co. below seven
Court considers that its just and equitable to wind up the company
A co. incorporated outside Kenya but carrying out business in Kenya has liquidation proceedings commenced over it in the country it was incorporated.
IPOs, prospectus expert opinion which companies carry them out
Initial Public Offer - This is the first issue of shares of the company to the public after its inception. With respect to initial public offers the prospectus should include:
An accountant’s report confirming compliance by the company with financial disclosures under rule 10 (1)
Legal opinion regarding:
Licences and consents for the particular business.
Validity of evidence of ownership of land, plant equipment and other assets
Any contracts with respect to proposed issue of securities.
Any material litigation
PROSPECTUS
It invites the public to subscribe to shares or debentures. It is a document which sets out the advantages that accrue from the investment in the company. It may be issued by the Company, or a promoter of the company. Could be a direct invitation to the public or offer of sale by an issuing house. It could also be to invite existing share holders to take more shares i.e. rights issue. Only public companies invite the public to subscribe for shares or debentures
The company law seeks to compel companies to provide the necessary info in the prospectus to enable investors make a decision one way or another to subscribe for shares or debenture
In particular full compliance and disclosure:
Who are the directors and what benefits do they get?
What profits are being made by the promoters?
What is the amount of capital required to be subscribed, amount received in cash, and the precise nature of the consideration given for the remaining capital
Past company financial records
Contractual obligation of the co. including commissions it will pay and preliminary expenses
State the voting and dividends rights of each class of shares
EXPERTS OPINION
Prospectus provides a statement by an expert regarding the co or intended raise of capital or the intended investment by the co. (with his consent and the prospectus must state so).
Experts include engineer, valuer, accountant or other person whose profession gives authority to his statement
What vitiates a contract – these are Factors that make a contract void)
Misrepresentation Concerned with the principle of
Duress or undue representation consent
Mistake
Illegality Concerned with public welfare
Can a contract be between an insane person
The general rule is that an insane person does not have the capacity to enter into a contract and the contract may be voidable. However, liability of the insane person exists in case of contracts involving necessaries i.e items considered to be suitable for the insane’s standard of living
Remedy of accounting in company law
Who are the agents in a company – any person authorized to negotiate on behalf of the company e.g. a manager, a director in certain cases like where the shareholders authorize them to negotiate a purchase on behalf of the members
Types of company meetings and who convenes meetings of a company
Statutory meeting – by directors – to consider the statutory report
Annual general meeting – directors, in default by the registrar
Extra ordinary meeting – directors, directors with the requisition of the members, members requisition, by court,
What is the committee of revenue allocation
Explain the winding up of a company by a court order
Commences when a petition is presented in court based on any of these grounds Section 218 C.A
Duties of a company director
Statutory duties
S. 191 - Prohibition of loans to directors.
S. 192 – Approval of company in a GM requisite for payment by it to director for loss of office (also see s 193).
S. 194 – Duty of director to disclose payment for loss of office etc made in connection with transfer of shares in a company.
S. 196 – Register of directors’ shareholdings etc.
S. 197 – Particulars in accounts of directors’ salaries, pensions etc.
S. 198 – Particulars in accounts of loans to officers etc.
S. 199 – General duty to make disclosures for purposes of ss 196, 197 & 198.
S. 200 – Disclosure by directors of interests in contracts to BOD.
S. 201 – Register of directors and Secretaries.
S. 202 –Particulars with respect to directors in trade catalogues and circulars.
Duties of care and skill
Exercise a reasonable degree of skill expected from a person with his expertise
Not bound to give continuous attention to the affairs of the company
May delegate some of his responsibilities to officials or employees of the co.
Fiduciary duties of loyalty and good faith
Directors should not exceed their powers: They may not act illegally, dishonestly, ultra vires the company or beyond their own powers.
Directors must act with an unfettered discretion:
Directors should not allow their personal interests to interfere with their duties to the company
A contract between a company and a director or with a company where director has interests is voidable at the instance of the company
A Director is accountable to the company for any secret profit made by virtue of his fiduciary position.
A director may not compete with the company.
A director may not misuse confidential information.
Formation of company
Conduct a search and reservation of the intended company names
Filing of the Memorandum of Association and Articles of Association
Filing of other 3 documents: physical address of the company, amount of nominal capital, list of names and addresses of the directors and secretaries, certificate of compliance
Paying Stamp duty
Commencement of business once the registration certificate is issued. For a private company it may commence immediately whereas a public company commences once it has successfully issued a rights issue
TRIAL ADVOCACY
Provision in the advocates Act on working under an advocate before one opens his or her firm – section 13 of the Advocates Act - a person qualifies to be admitted to the bar after having worked for not less than two years under an advocate that has been in practice not less than five years.
What kind of questions do u ask in exam in chief
Based on the issues that arose in the cross examination. The object of examination in chief is to elicit facts that are favourable to the case of the party calling the witness. In other words the exam in chief is when you question your first witness. Sometimes the plaintiffs themselves. Normally they will be giving evidence that will be favourable to their case.
Do not ask leading questions
Ask one fact at a time
Questions may begin with: what, where, when, how, which
What issues would arise where 3 law firms working in one room
Conflict of interest
Initial client interview
Definition – the initial communication with the client
Purpose – to source for information and get proper instructions from the client.
Client states the facts of his legal problem
Build clients confidence by ensuring he knows information he gives is confidential
Ask questions to be able to get necessary facts.
Give the client proper advice
Re examination - The re examination is a kind of retrieval process. This is when you try to heal the wounds that were opened up in cross examination. Most important, re-examination is strictly restricted to matters that arose at cross examination. The court also has powers to ask a witness questions for the purpose of clarifying points.
LPM
What are CBAs? How are they enforced
These are agreements that are made after negotiations between the employer/employer organizations on one hand and employees on the other hand.
Persons involved – employees, employers and the government
It includes terms and conditions involving the employment, as agreed in the bargaining process
The CBA should be registered with the ministry of labour.
What is the agent- principal relationship
This is the relationship that arises when a person is authorized to act on behalf of another. The agent may be authorized to enter into a contract, to buy goods e.t.c.
Authority may be:- actual, apparent or usual
Types of agents:- special, general and universal
Role of agents:-
Factor – in possession of goods to be sol on behalf of the principal
Broker – negotiates on behalf of the buyer and seller
Del cerdere – takes extra risks to indemnify the T
Merchantile agent
Commission agents – enters into contract on behalf of P
Distributorship - An agent can be appointed to buy goods and resell them in his own account
Closing arguments in faith muenis case/other case
The Sale agreement for the land, marked as exihibit B, is clearly only in Alponce Muoki's name. There are no Over-ridding interest over the land. The sale agreement does not contain any information on over-ridding interests. Charles Muema has also stated that the land transaction was only with Alphonce. This is a case of a kind hearted person showing mercy to his fellow human being and his act of kindness taken advantage of. Alphonce did have a short affair with Faith Muoki, which led to the birth of their son Sebastian. Out of generosity Alphonce let Faith live in his land since she had no job and also as a way of providing for his son. At the time Alphonce was not married, he was never known to be married even in the area he worked. Alphonce does not appear in any of the photos exhibited in court. Neither do the photos indicate that the people there, were attending any event. Mzee Nyamai who claims to have attended a wedding ceremony, is a man who has in his age attended very many ceremonies be it marriage, burial child naming, name it. Therefore it would be difficult to remember one event out of the many ceremonies he has attended furthermore that took place more than ten years ago. When Alphonce married just like any man he intended to settle his family in his land. The period of 12years given to Faith was long enough for her to find employment or a business to do and not just take advantage of Alphonce Muokis generosity. Faith was given sufficient notice to vacate which she ought to have done within the 12years.
Joinder of parties – ORDER 1 CPR
Parties who have a right to a relief in the same act or transaction/series of acts or transactions may be joined as plaintiff. One may join parties liable in the same transaction/against whom a right to relief exists in the same transaction/series of transactions
What the court considers in granting an injunction
That the applicant has a strong prima facie case/ case with probability of success
That the matter is irreparable through damages
An applicant for interim injunction must have a legal right in the subject matter which he seeks to prevent by the conduct of the defendant to violate.
One of the most important principles is the preservation of the property which is the subject matter of the suit.
In the application, the court must consider the balance of convenience, the opposite of the balance of convenience.
For an interim injunction to be granted, the applicant must show the existence of a real urgency and not a caricature of it.
Interim injunction can only be granted in cases of emergency.
The applicant must not delay in bringing the application.
There must be a subsisting action and relief to found an application for interim injunction postulates that the applicant has a right the violation of which seeks to prevent and in order to do so effectively, to ensure at that stage of proceedings that the subject matter of the right be maintained in status quo.
The court must consider the gravity of injury and the fact that the loss is irreparable.
The applicant must establish or show that it is virtually or practically impossible to bring a motion on notice considering the compelling sudden events.
The applicant must show that the award of damages will not be adequate or enough to compensate him.
Representative suits
These are suits instituted on behalf of a group of people to protect their rights and interests. Representative suits are allowed in situations where instead of having a multitude of plaints in court, you allow one or two to sue but judgment affects all of them. One must satisfy the court that the parties have a common grievance and common interest. If that does not appear then the court will introduce leave for representative action
What is discussed in AGMs How often are they conducted
Provided for under section 131 of the Companies Act. They are held once in each year. Members discuss:- business of declaring a dividend; consideration of the accounts, balance sheets and the reports of the auditors and directors; election of directors in place of those retiring and the appointment of and fixing of the remuneration of the auditors.
What are extradition proceedings
Extradition is the return of a person who has come to Kenya after being charged with a crime to the country he has been charged with the offence.
Deportation – the expulsion of a person out of a country
The attorney general files a miscellaneous application (through a notice of motion)
Tarquand rule/indoor management rule - persons transacting with a company are entitled to assume that the internal company rules have been complied with, even if they have not.
Termination of an agency
Agreement
Death of either agent/principal
Bankruptcy of the principal
Discharge of duties by the agent
Operation of law
When do directors of a co become liable to third parties
When they engage in business which is not an objective of the company
When they act ultra vires
Engaging in illegal contracts
When an agent becomes liable to third parties
Where they act outside their scope of authority
Breach of a condition
Where he signs in his own name without disclosing his capacity as an agent
What are quasi contracts
When do contracts end/terminate
Performance
Frustration
Breach of the contract and one of the parties rescinds it
Merger
Agreement
What happens to an accused in court
Plea taking is conducted
If a man has two wives under polygamy then marries a woman under statutory law do they qualify to be called wives
Succession law – they are both wives of the man as per section 3(5) of the LSA and Section 29 they are his dependants
Difference between replying, verifying and supporting affidavit
Replying – gives facts answering to
Verifying – used to accompany pleadings drafted during the preliminary proceedings(plaint, defence and petitions) to verify statements made therein.
Supporting - sworn by the advocate to support the correctness of pleadings made during the occurrence of the suit in question(chamber summons, notice of motion, originating summons)
Affidavit of service – filed by process serves stating how service was carried out
How is service effected
The rule as to service is that it should be effected personally (Order 5). Where the defendant cannot be found the server should use all due and reasonable diligent effort to search for the defendant before he conducts a substituted service i.e. service on the wife/husband. Before affixing the summons on the defendants door, the server must also use all due reasonable effort to find the defendant or authorized persons and must state on the affidavit of service full particulars of the premises
Persons authorized by law to effect service
Service will be done by an authorized process server, or by the court itself, which is rare, or through the advocate’s offices where parties are represented. In practice the advocates will have a clerk who doubles up as a process server
Duties of secretaries of a company
Issuing notices of general meetings to the members of the co. with the boards consent
Issuing notices of board meetings to the members of the board
Taking meetings during board and general meetings
Keeping books and registers
Countersigning documents to which the company seal has been affixed
Making statutory returns of the company
Defence, various ways of attacking the plaint
One may traverse or deny;
One may confess and avoid;
One may object on a point of law;
One may admit or make an admission;
Documents essential before trading(for a public co.)
Prospectus, consents, financial records of the company, contracts
Functions of official receiver in winding up
They are in possession and control of the assets of the company
Issues a report on the capital, assets and liabilities of the company, the failure to pay and the reasons for failure to pay. Where there cases of fraud, he makes a report of it.
Nemo dat principle
A person cannot pass title which himself doesn’t have. One can only acquire title from the owner of the property
Elements of defamation
The statements are false and defamatory, and they refer to the plaintiff and have been published to a third person.
How to be and stop being a member of a company
Becoming a member of a company
Agreement – allotment, Transmission, Transfer of shares, Compliance
Estoppel
Termination of membership
Death; Bankruptcy; Redemption of preference shares; Liquidation of the company; Forfeiture; transfer of all shares; surrender of shares; sale of shares held through the company’s lien; repudiation of an infant
Sale agreement - This is an agreement for sale of property
Parties
Particulars of the sale – subject matter
Conditions and warranties
Completion date
Passing of property
Remedies in case of breach
ADR
Termination
Definitions and Interpretations
Incorporation of LSK Conditions for Sale
Agreement for Sale and interest sold
Special conditions
Capacity
Purchase price and Deposit
Completion documents
Assignment Clause
Default Clause
Non merger Clause
Disclaimer (refusal to accept responsibility)
General (usual)
Intention to be bound
Execution
Remedies in contract
Damages
Specific performance
Repudiating a contract
Rescission
Quantum meruit
Injunction
Why damages
Damages place the plaintiff in the position he would have been had the contract been performed.
Coincidence of actus reus n mens rea
Causation in criminal law
The evidence given must be proved to have be part of the facts in issue
The cause of things or relevant facts or facts in issue will be admitted to explain the cause of an injury
Professional undertaking at what stage does the financier advocate do it
Made during completion of the contract
Mortgagee’s Advocate undertakes to pay the loan proceeds upon registration of the Charge plus/or transfer simultaneously.
Contract completion – when does it happen and what is a contract completion notice
After investigation of titles and execution of the sale agreement, the next and final stage is the completion and transfer. The purchaser is to pay the balance of the price and the vendor is to deliver the title documents for registration.
Contract completion notice – notice issued to the party that has failed to complete the contract
Time limitation must be reasonable (21 days is reasonable notice)
must demand performance of the contract
must be explicit i.e. that you will rescind (cancel) the agreement if performance demanded is not effected. You must leave no room that another notice will be given
The notice must be served. Service can be effected on either the party in default or his advocate e.g.
The notice mus t not be premature i.e. when the other party is in default
Indicate willingness to perform your part of the bargain. e.g. ability to grant vacant possession etc,you have to walk thetalk.
Will- I am with my son(20years) and a daughter(16years) with my househelp, advise
Difference between refractory and hostile witness
Where do u conduct searches for IR81765 - Nairobi, CR34567 - Mombasa, KWALE/KILIFI/BLOCK1 – Kwale district. where are the registries located who is the registrar(under RTA Registrar of titles)
Arrests
This is the lawful apprehension of a person limiting his liberty. May be done by a policeofficer, private person, magistrate. May be done with or without a warrant
Difference between advocates complaint commission and advocates disciplinary committee
ACC- Investigates complaints against an advocate
ADC – deals with case of disciplinary issues involving an advocate after being heard by the ACC. Makes orders as to the punishment or costs to be made by the advocate
Whether the judiciary can try an advocate instead of the complaints commission
Appeals from the ACC n ADC are made to the High court
Trial within a trial – voir dire
Retracted and repudiated confession – difference
A retracted confession occurs when the accused person admits that he made the confession but now seeks to recant or take back generally what he said on the ground that he had been forced or induced to make the statement (the statement was not a voluntary one). Repudiated on the other hand is a statement that an accused avers that he never made.
Mitigating circumstances factors that cause one to commit a crime e.g provocation, self defence
Review
Review simply stated means to look once again. Under the Civil Procedure Act review is a judicial re-examination of the same case by the same judge in certain circumstances. Section 80 of the Act gives the substantive right of review in certain circumstances, while Order 45 provides the procedure thereof
Sentencing –
Occurs when the court makes the order or issues punishment to the accused person
Eminent dormain
The power to take private property for public use by a state, municipality, or private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property
Cross examination
Conducted by the opposing advocate to ones witness. Done after re-examination.
Meant to discredit the witness. Questions deal with the credibility of the witness and accuracy of his statements. Leading questions are asked. Meant to weaken the evidence of the witness
Last project in trial n LPM
Trial - pre trial advocacy
Pre trial advocacy refers to proceedings held before the official court hearing takes place. The objective of pre trial advocacy is to clarify points of law and facts. It involves client interviewing, legal research and documentation.
LPM- tripartite system
The relationship bringing together the government, employers acting individually or collectively and trade union representing workers in a concerted effort towards the promotion of consultation and co-operation in labour matters.
CB process
Dispute resolution process
EXAMINATION OF WITNESS
This is the questioning of witness to ascertain the accuracy of their evidence and also to enable an advocate tell his clients story. There are three ways of examining witnesses
Examination in chief, cross examination and examination in chief
How do u proceed as an advocate when the court orders u to go for ADR
As an officer of the court, its your duty to respect an order of the court. There are situations where matters are referred to arbitration under an order of the court. This happens where the parties may during the proceedings or hearing at any stage of the hearing agree to have any dispute between them referred to arbitration. A matter may be referred to arbitration by the court in exercise of its own discretion so as to enable it make a decision. Reference to arbitration as set out in a prior agreement between the parties is different from where parties agree in the course of litigation to take the same to arbitration but the parties must inform the court.
If your laptop was stolen in the library what do u do
Report to the security personnel or library assistants
Do an examination in chief using open ended questions (for the complainant)
Doctrine of survivorship/jus accrescendi
In a joint tenancy – when one party dies, the other party gets the deceased share of the property. The surviving party takes the whole property.
Terms of a contract
Express and implied
Offer
Acceptance
Conditions
Passing of property
Remedies
Termination
ADR
Volenti non fit injuria –
A person cannot claim a relief if he had consented to the tort or acquiesced his rights or was aware of the tort but for some time did not protest or bring a claim.
Exclusion clause – what is it and what is needed to make it legal
They limit the rights of the parties to a contract
Sec 3(3) of LCA and its equal in the land act
Section 38 of the Land Act
Whether an oral contract is valid
It is valid if it has fulfilled all the elements of a contract, but it would be difficult to enforce
What is in a contract completion clause
A clause stating the date and place of completion, together with what is to take place.
Capital offences and what they are
Offences which attract heavy punishment
Who drafts a sale agreement – vendors advocate
What a purchasers advocate does with it – verifies it and raises pre contract inquiries with the vendors advocate and also advises the purchaser on it.
How many engrossed copies do u need – two engrossed copies, one for each party
Elements in murder and what mens rea in murder is called
Mens rea in murder is called malice aforethought. It nvolves the intention to cause grievous harm, knowledge that the acts would cause grievous harm/death
wafula was hit by kevins car on langata road n has come s to u for advise.
Get to know the full facts of the incident who was in the wrong. Advise him that he has a right to claim for damages for the injuries sustained and for costs of treatment.
Prepare a demand letter to be served on Kevin and failure to admit liability or to negotiate, he institutes a suit.
How do u conduct a client interview
X enters into a contract with y, for y to supply goods. X pays y, n y dies before making delivery. X is attempting to sue, advise y’s widow.
What is res ipsa loquitor
Statements are to be construed just as they are.
Maxims in equity
Difference between judgment and ruling
Judgment – the decision of a court in proceedings involving a suit
Ruling – decision of a court in cases of a petition/appeal/application
Objection proceedings.
You can stop execution by Objection proceedings under Order 22 rule 50 . Where property is attached the attachment may be objected to through objection proceedings. Any person who is entitled to have any legal or equitable interest in the property to be attached may at any time before sale or paying out of the proceedings of the sale object in writing to the court.
Objections to the issue of a grant
After the application is gazetted, objections may be made within 30days.
The objector files his objection, in triplicate, to the high court registry. The registrar notifies the applicants of the objection and also notifies the objector to answer to the petition for grant, together with a petition by way of a cross application (petition) supported with an affidavit. The registrar then refers the matter to the court for directions and then notifies the parties involved of the time and place of hearing the objections.
Where the objector wishes to withdraw his objections he files a notice to withdraw.
Docs used to file objection to an application for letters of grant
An answer to the petition for grant
Petition by way of a cross application
B bought land from A, then got a buyer C, but B hasn’t completed payment to A, how does B proceed
B may assign his liability for payment of the land to C, that is, C shall now be liable to pay A. Must be done with the consent of A. if A consent this is known as novation, a new contract is created between A and B.
What does a magistrate do at the end of the prosecutions case
What do u do in a defence proceeding as the advocate of the accused
Overriding objectives
An accused person who is insane walks into your office, how do u proceed as a prosecutor
Difference between bail n bond
What is a charge and a discharge
The list of exceptions to the nemo dat rule
The main exceptions, from various sources, are:(a)estoppel (conduct of the owner);(b)sale under a common law or statutory power;(c)sale under a voidable title;(d)sale by a mercantile agent;(e)sale by a seller in possession;(f)sale by a buyer in possession
Application in conflict of interest
Forfeiture
Stakeholding
special grants
closing of pleadings
xcteristics of a gift in contemplation of death
Explain what a 'bonus issue' is.
What is a 'rights issue'?
Enforceability of an international Bill of exchange
What is 'noting and protesting' in bills of exchange
How are directors appointed?
Explain the relationship between Directors, Employees and shareholders with a company
Validity of a will
Whats the last topic you did in defence
What is the meaning of the seriatim clause in a defence
what is a power of attorney and where do you register it
where do you register cr/sme number/sme other number
where do you register kwale/block sth/sme number
when someone is making an oral will and someone else is noting down is what has been written down a written will?
when a client tells you what he wants in the will in his language and its translated and u note it down in english what other docs should u attach to this will
talk about signatures on a will.is a rubber stamp a valid signature
Ultra vires
application of customary law,
deal breaking clauses in conveyancing
judicial review procedure
creation of agency
registered caveats,
stamp duty,
interlocutory proceedings ,
your client has just been arrested and is being rushed to makadara what will u do next,
difference btwn hearing and mention date,
types of pleas,
what happens when a prosecution finishes presenting its case,
a wife married under cap 150 has heard his husband is getting married tomorrow advice her with regards to stopping the marriage,
principles established in giella,
who is a dependant
How do you move court for grants,
have u ever seen the succesion act and how is it arranged(i.e sections then schedules,rules,forms)
procedure for applying for a special limited grants,
Sources of law
Nullity and divorce
A kamba woman wants to divorce under customary law. How do you proceed?
Breach of contract
Circumstances under which a will can be challenged
My take on the marriage bill
Essentials of a will,
what's a codicil,
duties of an advocate to a client,
confidentiality,
cab rank rule
The principle of jus accrescendi in relation to commorientes
quicquid plantatur solo, solo cedit
Procedure of registering a Hire Purchase Agreement
2.prof. indemnity cover
conflictof interest
provision in the Constitution on Bill of Rights enforcement
Id parades
Rights of an accused psn Article 49 COK
Right to an open court; right to be notified of reight or represenatation, to know the charges made against one, to have an interpreter, right to appeal,
Memondarum clauses
Diff btwn proff misconduct and proff negligence
Failire of both parties or any parties to a suit to appear in court
diff btn mortgage and charge
what happens after attaining letters of admin thn fnd out that sm property 6.
who is an intermeddler
What is striking out,
Dif.btwn striking out n dismisal of suits,
u r a purchasers advo. B4 completion te vendor mortgages the prperty n the purchaser nsists on getin the property wat do u do,
what is an oral will,
can spouses testify againsteach other?
What is a company.
What is the least no. of directors a private company may have/ public company
can children enter into contracts...what it the legal position
exclusion clause...
your client was driving along thika rd saw an advert on a bill board as he is short sighted couldnt c an exclusion clause tht was in small font he entered into a contract with co tht was advertising, co. breached its part of the contact can ur client sue? Advise
caveat emptor
The general rule is that during the negotiations leading to a contarct a party is not bound to disclose information which might influence the judgment of the other party
confessions
confidentiality
this is the rule or duty whereby information given to a party shall not be communicated to another person
types
advocate – client, work-product, general
types of torts
negligence
trespass
nuisance
termination of criminal proceedings
nolle prosqui
Chinedus story 4.how would kenya deal with chinedu legaly if found guilty.
.marriage regimes in Kenya
Civil marriage
Polygamous marriage
Mohammedan marriage
Whats descrimination. 7.
wea do u institute a discrimination case n how. 8.
How do u go about a discrimination complaint as an advocate.
1. difference btn caution and caveat
how to proceed wea purchaser hs full price,vendor is a willing seller bt e land has a charge
how to proceed wea ur client's copyright is infringed en knws wea to get e evidence from e defendants piracy premise.
what constitutes professional misconduct
failing to deliver damages to the client
when involved in a conflict of interest he fails to transfer the matter to another advocate
owalo situation
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