PRACTICE QUESTIONS FOR ORAL EXAMS
[MIXED QUESTIONS FROM ALL SUBJECTS]
Factors to consider in setting up an office.
5 P’s: Product, Price, Place, Promotion and People
Are you leasing or buying the property?
Location of the office? ( Accessibility, proximity for your customers and for yourself for convenience (e.g. to land’s registry, sharia house, court)
Space + layout needed ( this is determined by number of employees
The amount of capital you have at your disposal (determines the above)
What decision the Court makes at the close of the prosecution case?
Whether the defence has no case to answer
Determined by whether the prosecution has adduced sufficient evidence to prove a criminal charge beyond reasonable doubt or a civil case on the balance of probabilities
Reasons why members may want voluntary liquidation of a company?
Voluntary liquidations far out-number court mandated liquidations ( members would like to dissolve the assets of the company to pay off creditors
Disagreement between members of a company on the direction the company should take
Insolvency of the company, i.e. when a company is unable to pay its debt in full
What application you make if the members of a company tell you that they want to protect themselves from creditors?
Enter in to a company voluntary arrangement with the creditors
The CVA is an arrangement ( it is a procedure introduced under the new Insolvency Act 2015 that allows a company with debt problems or that is insolvent to reach a voluntary agreement with its business creditors regarding repayment of all or part of its corporate debts over an agreed period of time, during which the creditors are barred from placing the company under receivership or liquidation or initiating any claims against the company
Provisions of Article 50.
Article 50: Right to a fair trial
Includes: right to be presumed innocent until proven guilty; right to be informed of the charge in sufficient detail; right to have adequate time and facilities to prepare a defence; right to a public trial before a court established under the Constitution; right to have trial without unreasonable delay; right to be present when being tried (unless conduct of accused makes that impossible); to choose and be represented by an Advocate; right to remain silent and not testify during proceedings; to be informed of evidence adduced against him or her; to adduce and challenge evidence; to refuse to give self-incriminating evidence, etc.
What are the elements of the defence of insanity?
It is a defence under Section 12 of the Penal Code
You have to prove 2 elements: that the accused is suffering from a disease of the mind which renders the accused person incapable of understanding the act or omission
What is the meaning of Police powers in conveyancing?
Police power refers to the legal authority of the state to limit private rights in order to protect national public interests such as health, safety and the environment
Government has power to restrict private land use based on several factors, including: protection of the environment (EMCA), promotion of sustainable development, etc.
You are walking in KSL and you fall down due to bad tiles. What case do you have against KSL?
KSL would be liable for breach of the common law duty of care under Section 2 of the Occupiers Liability Act ( common law duty of care is a duty to take such care as is in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there
However, KSL would be protected under Section 3(b) if they notified the students of the broken tiles or if the danger posed by the broken tiles was reasonably obvious
(Would a landlord be liable for danger on premises?) ( Follow up from above
Yes, under the Occupiers Liability Act, landlords are under a duty to repair all defects on the premises as if they were the occupiers of that premises
What happens when you pay yourself out of the proceeds of a case. Is this allowed?
Rule 4 of the Advocates Code of Conduct and Ethics for Advocates 2016 on Professional Fees
Prohibits contingency fees ( do not permit a contingent fee arrangement under which the Advocates’ fee or a portion of it is pegged on the outcome of the case
Law also prohibits champerty ( an agreement to divide litigation proceeds between the owner of the litigated claim and a third party to the law suit who supports or helps to enforce the claim
What kind of measures will be taken against an advocate that commits this kind of offence of misappropriating client funds?
Amounts to professional misconduct under Rule 4 of the Advocates Code of Conduct and Ethics
Dealt with through appropriate disciplinary measures under Section 60 of the Advocates Act:
A complaint will be made to the Advocates Complaints Commission
A tribunal will be formed to investigate the complaint if the complaint has merit
The tribunal investigates, takes evidence, etc. and then makes a decision (if the Advocate is aggrieved by the tribunal’s decision, it may be appealed to the High Court)
If decision goes against the Advocate that was the subject of the complaint, the possible consequences are: the Advocate may be admonished; such Advocate be suspended from practice for a maximum of 5 years; the Advocate may be struck of the Roll of Advocates; pay a fine not exceeding 1 million shillings; pay the aggrieved person compensation or reimbursement not exceeding 5 million shillings
You have a client who wants to build a mall in Limuru on agricultural land. What are the preliminary considerations that come to your mind to advise such a client?
Transactions dealing with Agricultural land are controlled transactions
For these transactions, you need consent from the LCB, which is obtained by presenting your proposal before the Board in person, after having filed out Form of Schedule 1 of the Land Control Act
My friend and I want to open a law firm, what would go in the business plan?
Executive summary
Business description
Marketing plan (5 P’s – People, Promotion, Product, Price, Place)
Organisational/management plan
Operational plan
Financial plan
Risk analysis (SWOT analysis)
Ways of terminating a criminal proceeding.
There are 3 ways in which criminal proceedings may be terminated:
Act of the parties, e.g. if the complainant does not appear in court for the hearing when he had adequate notice, then the court may acquit the charged person
By reconciliation under Section 176 CPC (i.e. court encourages you to amicably resolve the dispute); and
Withdrawal or discharge of charge by the complainant or the prosecutor
Instances when an accused can be denied bail
Under the Criminal Procedure Bench Book the reasons to deny bail include:
Likelihood that the accused may fail to attend court
Accused may commit or abet the commission of a serious offence
Accused may endanger the safety of victims
Accused may interfere with witnesses or evidence
Accused may endanger national security or public safety
Protection of the accused person
Is right to bail absolute?
No, it is a discretionary right
The court has to balance individual right to freedom with the public interest
Difference between Judicial Review and Review
Review:
Reconsideration or re-examination of a decision so as to amend or alter it where it is desirable or necessary ( it is a second look at a decision already made by the authority which made it
Grounds for review include: 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, etc. ( i.e. 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 procedure by which a decision made by a subordinate authority
It’s made to review the procedural manner in which the decision was arrived at and does not look at the merits of the decision
Difference Judicial Review and Appeal.
Judicial Review: meant to ascertain the manner in which the decision was made; the court’s concern is with the legality of the administrative action or decision
Appeal: court is concerned with the merits of the decision and it may substitute its decision for that of the lower authority
Governed by Section 80 of the Civil Procedure Act
Order 45 of the Civil Procedure Rules gives the procedure for applying for review
Can one Appeal after applying for Review?
Yes, you can. You can apply for review before appealing a decision
If yes, what will be the grounds of appeal? Is it on the review or the judgement?
The appeal will be on the reviewed judgement (i.e. the judgement as stands after it has been reviewed by the same court that passed it in the first instance)
Types of pleadings
Plaint ( to institute a civil cause of action
Petition ( used where there is a breach/violation or potential breach/violation of a constitutional right or freedom
Notice of Motion ( all applications to the Court are to be made by way of a Notice of Motion and heard in open court unless the court or the rules order that such applications be made otherwise
Chamber Summons ( applications by way of Chamber Summons are used when seeking orders within a pending suit. The Application must always be brought and sought under a specific rule. Chamber Summons was historically heard in chambers thus the name Chamber Summons
Originating Summons ( The Originating Summons method is less common and is only used where the Civil Procedure Rules provide for it or some other statute especially permits that method of approaching the court. It is a shortened version of the Plaint. The method of O.S. is intended for simpler, shorter and speedier process. Usually when you approach the court by way of an O.S. there are no witnesses and evidence is by way of Affidavit. E.g. an applicant in interpleader proceedings will approach the court by way of an O.S.
Memorandum/Statement of Claim ( mainly used in the Employment and Labour Relations Court
Judicial Review ( is ordinarily by way of Chamber Summons to seek for leave and then Notice of Motion to institute the claim
Grounds of opposition ( can be on both fact and law
Preliminary objection ( are ordinarily premised only on law
Who is the woman under s.3(5)?
This section was not there under the previous LSA; was created to protect women whose husbands entered into previous or subsequent marriages
The woman under this section is a wife married under a system which permits polygamy, and her husband has contracted either a previous or subsequent monogamous marriage to another woman
Anastacia Otieno:
She is a woman whose husband has contracted a monogamous union and she is married under customary law ( this woman is therefore not legally married (i.e. cannot get a divorce), but under the law of succession she becomes an official wife (just as good a wife as the previous wife married under the monogamous union, and has a claim under S. 29)
This section also protects a polygamous union even if the husband goes and marries under a monogamous/legal union after
Thus, a wife under S. 3(5) need not prove anything other than the fact that she was married to the deceased under a customary marriage (this is the same for divorcees and children)
Who are persons under s.29? Give examples of each.
Section 29 caters for dependants:
Wives, former wives, children (whether maintained immediately before or not) ( their entitlement is automatic
Parents, step parents, grandparents, grandchildren, step children and children the deceased took in as his own ( have to prove maintenance immediately prior to death
Husband ( if being maintained by deceased wife prior to death
What is defamation?
Governed by Section 3 of the Defamation Act
Four elements of defamation:
Must be a false statement
Published to a third party
Touches on the reputation or character of the subject of the statement
Makes third parties/right thinking members of society shun or avoid the person
What was your LPM project? Discuss.
Had to design a law firm from start to finish; akin to a business pitch for a start up
Had to devise a new idea for our law firm, e.g. improving use of technology or being a one-stop shop, i.e. all experts in a field under one roof
We had to divide our business plan in to a number of different chapters (see above)
Instances where freedom of the expression can be limited.
Freedom of expression is not an absolute right and it may be limited by Article 24
Where the statement might pose a threat to national security, affect public order, etc.
Hate speech
Propaganda for war
Incitement of violence
Advocacy of hatred that:
Constitutes ethnic incitement, vilification of others or incitement to cause harm; or
Is based on any ground of discrimination
If a false statement is published is that also freedom of expression?
Freedom of expression is a limited right
E.g. if a journalist reports something false without doing his research, and the false statement causes harm (or any of the above), then that may be a situation in which freedom of expression would be rightly limited
E.g. if the false statement affects the rights or reputation of others, then freedom of expression may be limited (Article 33(3) Constitution 2010)
Difference between a Lawyer and an Advocate?
Once you graduate with your law degree (LLB), you become a Lawyer ( but you cannot go to court, you can only give legal counsel
To become an Advocate, one must attend KSL, pass the exams and be admitted to the Roll of Advocates ( can then represent clients in court, sign off on legal documents, etc.
Section 9 Advocates Act: the requirements to qualify as an Advocate include:
The person has been admitted as an Advocate
The person’s name is for the time being on the Roll of Advocates
The person has a valid practicing certificate in force
Why can only a lawyer sign a legal document?
To authenticate the document, otherwise it may be signed by anyone who is not on the Roll of Advocates
Section 34 Advocates Act: no unqualified person shall, either directly or indirectly, take instructions or draw or prepare any document or conveyance
What is the essence of ATP training?
To train lawyers in to becoming Advocates by providing practical knowledge
It provides a clinical approach to the law (learning by doing) and is therefore a combination of problem questions for discussion, simulation, role-plays, interactive seminars and moot courts
Teaches students how to practically apply the knowledge from your LLB which should translate in legal practice by focusing on procedure
E.g. in civil litigation, we are not taught the substance of the Civil Procedure Rules, but rather we are taught how to apply the rules practically, e.g. by drafting pleadings, when to draft the pleading concerned, etc.
What is a lien?
A right in one man to maintain that which is in his possession belonging to another until certain demands of the person in possession are satisfied
This is a right given by the law and not by contract
Remuneration of an advocate where the client paid half the fee, you lose the case, Client refuses to pay the balance. What are your rights as an Advocate?
Firstly, a contingency fee is illegal and so the client has to pay you the agreed fee regardless of whether or not you win the case
Can exercise any of the following rights (Section 52 Advocates Act):
An Advocates Lien ( An extraordinary right granted to lawyers and attorneys, to retain a client’s property deposited with them, including crucial and original documents, until his/her bill for services and expenses has been paid
May bring a suit for recovery of costs ( but must wait for one month to lapse after bill of costs has been sent to the client (unless the person who owes the Client fee is likely to abscond the jurisdiction) ( recovery of costs may be brought to any court of competent jurisdiction (and such bill of costs may be taxed)
Types of affidavits?
Verifying Affidavit ( normally states that the averments made are true
Supporting Affidavit ( normally accompanies a Plaint or Defence to bolster the grounds contained within by adducing evidence
Replying Affidavit ( normally filed in response to the facts raised in the supporting affidavit and can also be used to respond to an Application by way of Notice of Motion/C.S./O/S or Grounds of Opposition
Further Affidavit ( follows from a Replying Affidavit; acts as a second reply
Affidavit of Spousal Consent, e.g. when you are charging or selling matrimonial property
Affidavit of Service ( e.g. to confirm that a party has been served with a hearing notice
Affidavit to confirm change of name, marital status, etc. (statutory declarations)
Explain how to draft a formal letter.
Address of the sender at the top ( Must have a letter-head. The letter head should capture 3 things: the name of the law firm; the physical address; the postal address (may add an email)
Name and address of the recipient on the left-hand side beneath the sender’s address
Date at the top directly under the name of the addressee (never forget to date letters)
If the letter is sent by registered post, hand or fax, indicate this in bold below the date
If the letter is sent by ordinary post, do not indicate that fact
When sending a letter to a particular person in a large organisation, make that fact clear by indicating: ‘Attention: Mr./Mrs./Ms. [x]’
Include references (most organisations have a system of categorising and filing documents. This should be placed before the address of the recipient)
Body of letter should be logical, clear and concise
Explain the difference between Active and Passive voice.
Active voice: the subject of the sentence performs the action expressed on the verb ( “the police officer arrested the man”
It is more concise
It uses a more vigorous verb
It allows information to be processed more easily
It emphasises who or what is responsible for committing an act
It is more engaging, direct and clear in comparison to passive voice which is weak and dull
Passive voice: the subject of the sentence is acted up (i.e. receiving the action) ( “the man was arrested by the police officer”
When the person or thing performing the action is unknown or relatively unimportant
When you do not want to emphasise who did the act
When it is the act and not the actor which is important
Elements of rape
Section 3 of the Sexual Offences Act
The intentional and unlawful penetration of the genital organ of a person by another
The absence of consent
Where consent is obtained by force or by means of threat or by intimidation of any kind
What document do you need to prove penetration in rape?
Post Rape Care Form (PRC) under the Sexual Offences (Medical Treatment) Regulations 2012
Form contains:
Particulars of the victim, e.g. name, age, date of birth
Type of assault, where it occurred, if it has been reported to the police, etc.
Psychological assessment and medical examination
Lab tests, samples collected and any treatment/medication given
What is derivative action?
Derivative actions are the pillars of corporate litigation
A derivative action is a mechanism which allows shareholder(s) to litigate on behalf of the corporation often against an insider (whether a director, majority shareholder or other officer) or a third party, whose action has allegedly injured the corporation
The action is designed as a tool of accountability to ensure redress is obtained against all wrongdoers, in the form of a representative suit filed by a shareholder on behalf of the corporation
It is an exception to the rule in Foss –v- Harbottle [1843] 2 Hare 461: “a company is a separate legal personality and the company alone is the proper Plaintiff to sue on a wrong suffered by it”
Derivative action can be brought for one of the following reasons under Section 238 of the Companies Act 2015:
Negligence
Default
Breach of duty
Breach of trust
Habeus corpus and how you institute such claims?
Habeas corpus has its origins in the common law where it developed as a writ
It is a prerogative process of securing the liberty of the subject by affording a means of immediate release from unlawful or unjustifiable detention, whether in prison or private
Because it is a prerogative writ it can only be entertained by the High Court
Section 389(1) of the Criminal Procedure Code ( the High Court may whenever it thinks fit direct
that any person within the limits of Kenya be brought up before the court to be dealt with according to the law;
that any person illegally or improperly detained in public or private custody within those limits be set at liberty;
that any prisoner detained in a prison situated within those limits be brought before the court to be there examined as a witness in any matter pending or to be inquired into in that court;
that any prisoner so detained be brought before a court martial or commissioners acting under the authority of a commission from the President for trial to be examined touching any matter pending before the court martial or commissioners respectively;
any prisoner within those limits be removed from one custody to another for the purpose of trial; and
the body of a defendant within those limits be brought in on a return of cepi corpus to a writ of attachment
What is privity of contract?
A common law principle which provides that a contract cannot confer rights or impose obligations upon a person who is not a party to the contract
What's transferred in sale of goods?
Sale of Goods in Kenya is governed by the Sale of Goods Act
The property in the goods is transferred
What are the elements of a contract?
Offer
Acceptance
Consideration
Intention to be legally bound
Certainty
Capacity ( minors, insane, unsound mind
Mutuality ( both parties should know what they are entering in to
What's consideration?
It is a basic element of contract, without which a contract is void
It is the exchange of one thing of value for another
What's a chattel, fixture and choses in action/possession?
Chattel: an item of tangible moveable or immovable property except real estate and things connected with real property (such as buildings)
Fixture: a legal concept in law which is used to define a ‘permanent fixture attached to or fixed to real property’. In the event of sale of land, fixtures are usually sold as part of land, except otherwise stated in a conveyance report. It is the practice in some jurisdictions, the purchaser automatically owns the fixtures as part of the purchase ( fixtures in affect can be defined or viewed as ‘an article which was once a chattel but which has now become a part of the land
Choses in action: it refers to all personal rights to property which can only be claimed back or enforced by an action and not by taking physical possession, e.g. money in a bank account
Choses in possession: it refers to all personal rights to property which is in the respondent’s possession and is ordinarily enforced by the claimant taking possession
What's the difference between fittings and fixtures?
Two step tests to determine whether it is a fixture or fitting:
Method and degree of annexation ( how firmly is it fixed to the ground and what damage will be done in removing it? (more firmly fixed = fixture)
The object and purpose of the annexation? ( was it to better enjoy the land or to enjoy the item? (better enjoy the land = fixture)
What do you need to prove for an injunction?
The test for injunctions comes from Giella Casman v Brown
Prima facie case
Irreparable damage that cannot be compensated by damages
Balance of probabilities
Have to make full and frank disclosure in order to be granted any injunction ( Sidhu v Memory Corporation and Kind v Commissioner of Taxes
What's are the different types of injunction?
Prohibitory injunction: a restrictive injunction whereby a person is prohibited or restrained from doing a particular act; normally to restrain the doing or continuance of some wrongful act, e.g. a Mareva injunction (freezing order to stop someone moving assets)
Mandatory injunction: an injunction granted to restrain continuance of some wrongful omission, and may also be made in a positive form and order some act to be done. It has a higher threshold than prohibitory injunctions and is only granted in some circumstances, e.g. where the Applicant’s case is very strong and straight forward and there is absolutely misnomer there. Can be divided into:
Restoration mandatory injunction ( requires the defendant to undo a wrongful act to restore the status so that the damage does not continue
Mandatory injunction proper ( compels the defendant to carry out some positive act to remedy a wrongful omission
Perpetual injunction: granted for the lifetime of the Plaintiff. It is granted at the final determination of the rights of the parties and means that the court has finally settled the dispute between the parties. It is granted only after the claimant has established his right and the actual or threatened infringement of it by the defendant, e.g. a perpetual injunction allowing [x] to enjoy quiet possession of the land (free of trespass, construction, etc.)
Quia timet: injunction granted to prevent a threatened infringement of the Plaintiff’s rights, i.e. where there are signs that the infringement will occur but the rights have not been infringed as yet. It is also called an anticipatory injunction. May also be granted where the claimant has already been compensated for the damage sustained but there is fear of further damage occurring ( for the court to grant an anticipatory injunction, the following conditions must be established by the Plaintiff:
A very strong probability of future infringement;
Proof that the damage is imminent;
It will cause substantial or irreparable damage for which an award of damages will not be an adequate remedy; and
Damage will be of most serious nature.
What do you know about "time is of the essence" in conveyancing?
Time is of the essence is a phrase contained in a contract stating that a certain time or date (usually for completion) is important ( Means that performance by one party at or within the period specified in the contract is necessary to enable that party to require performance by the other party ( Failure to act within the time period will constitute a breach of the contract (covenant) and allow the affected party to repudiate the contract
A time is of the essence clause normally operates as a condition and not a warranty
Halsbury’s Laws of England: “The modern law in the case of contracts of all types may be summarized as follows. Time will not be considered to be of essence unless:
The parties expressly stipulate that conditions as to time must be strictly complied with;
The nature of the subject matter of the contract or the surrounding circumstances show that time should be considered to be of the essence, or
A party who has been subjected to unreasonable delay gives notice to the party in default making time of the essence”.
Suppose the time is of the essence clause lacks in the sale agreement, and the seller defaults in meeting their end of the bargain, what remedies are available to the buyer?
Damages for breach of warranty
What would you advise people who are about to enter into a general partnership? Limit your advice to matters pertaining to risk management.
General partnership:
Group of 2 or more people coming together for a common purpose to make profit
Governed by their private agreement, in default of which, governed by the Partnerships Act 2012
Do not have separate legal personality, is unincorporated (*risk*)
Unlimited liability and so personal assets can be attached (*risk*) ( i.e. liability is personal and unlimited
Cannot hold property in the name of the company or even execute documents in the name of the company without express authorisation from other partners
Bay be dissolved by: death, bankruptcy, agreement of partners, court order (*risk*)
Partners jointly and severally liable for acts and omissions and wrongful acts of their fellow partners (*risk*)
7 maxims of equity
He who comes to equity must come with clean hands
He who seeks equity must do equity
Equity follows the law
Equity regards as done that which ought to be done
Delay defeats equity
Equity will not assist a volunteer
Equity will not allow a statute to be used as a cloak for fraud
Equity will not allow a trust to fail for want of a trustee
Equity will not complete an incomplete gift
7 social sins
Politics without principles
Wealth without work
Pleasure without conscience
Knowledge without character
Commerce without morality
Science without humanity
Worship without sacrifice
Duties of an advocate
TO THE COURT
To tell the truth/not mislead the court
To not withhold documents even if they are averse to the client’s case
To uphold the administration of justice and be fair
To obey court orders
To be expeditious, punctual, etc.
To not influence judge, tribunal or any other official by means prohibited by the law
TO THE CLIENT
Duty of care (prioritise the client’s interests)
Not to collude
Not to receive gifts
Not to lie to the client
Confidentiality
Fiduciary duty over client funds and property
Not to commit fraud with the client
To act in good faith
TO ADMINISTRATION OF JUSTICE
Charging reasonable fees
Teach law in order to educate the public
Contribute to a fair, just and independent legal system
Promote independence of the judiciary
Avoid situations involving a conflict of interest
Expedite legal proceedings
Ensure finality in matters
Do not mislead the court
Do not criticise judicial officers
TO WITNESSES
Avoid suggestions calculated to encourage suppression of evidence
Do not pay witness to give information
Inform witness about date when case is going to be heard
Furnish witness with all details and documents to ensure their testimony is correct
Do not pester witness with unnecessary questions or indecent/scandalous questions (especially when it comes to crimes under the Sexual Offences Act)
TO THE PUBLIC
Protect against unnecessary harm to third parties and public in general
Promote a just and effective legal system
Promote a wide range of ADR clauses
Provide affordable and convenient access to justice
TO THE OPPOSING ADVOCATE
Courtesy and respect
Honesty and fair dealing
Duty of cooperation
Duty not to negotiate directly with the opposing party
Problem question on when a client tells you he murdered someone and needs you to help him prepare an alibi for defence.
You already know your client has murdered the person, and so in order to prepare an alibi for why he could not have done it, you as an Advocate would need to lie to the court
However, your duty of honesty to the court and fidelity to the law supersedes your duty to zealously represent your client
Thus, you cannot help your client prepare such an alibi, and may instead offer alternative options like defences to murder, e.g. self-defence, insanity, ‘battered woman syndrome’, etc.
How has ICT developed the legal profession?
ODR
Online Arbitration
Smart contracts in block chain
Advantages of an LLP over a general partnership.
Can be incorporated
Has separate legal personality
Has limited liability
Has perpetual succession
Can hold property in its own name
What is negligence and what are the elements?
Tort of negligence: is a legal wrong that is suffered by someone at the hands of another who fails to take proper care to avoid what a reasonable person would regard as a foreseeable risk
In many cases there will be a contractual relationship (express or implied) between the parties involved, such as that of doctor and patient, employer and employee, bank and customer, and until relatively recently it was necessary for such a contractual relationship to exist in order for a claim for negligence to succeed
The elements of negligence are:
Duty of care
Breach of that duty
Causation
Proximity/foreseeability
Damage as a result
The test for duty of care are (Caparo Industries v Dickman):
Harm must be a reasonably foreseeable result of the defendant’s conduct
A relationship of proximity must exist
It must be fair, just and reasonable to impose liability
What is criminal negligence?
Conduct that leads to risk of major bodily injury or death of another individual
E.g. driving under the influence of drugs or alcohol and causing another’s death by operation of a motor vehicle under the influence of the same
Principles of the Adan Mohammed in plea taking.
Comes from the case of Adan v Republic [1973]
The charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;
The accused’s own words should be recorded and if they are in admission, a plea of guilty should be recorded;
The prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts;
If the accused does not agree with the facts or raises any question of his guilt, his reply must be recorded and change of plea entered;
If there is no change of plea a conviction should be recorded and a statement of the facts relevant to sentence together with the accused’s reply should be recorded
Maximum time period for a minor's trial to be in court
Article 53 (1) (f) of the constitution provides that "Every child has the right—
(f) not to be detained, except as a measure of last resort, and when detained, to be held—
(i) for the shortest appropriate period of time; and
(ii) separate from adults and in conditions that take account of the child’s sex and age.
Difference between summary judgment and judgment in default?
Summary judgement: This procedure is intended to enable a plaintiff with a liquidated claim, to which there is clearly no good defence, to obtain a quick and summary judgment without being necessarily kept from what is due to him by delaying tactics of the defendant ( it is obtained under Order 36 of the Civil Procedure Rules
Judgement in default: This is judgement entered in favour of the defendant where the defendant does not enter appearance at all (this is what differentiates it from the summary judgement, in which appearance is actually entered on behalf of the Defendant)
How do you apply for anticipatory bail?
Grounds for anticipatory bail: The High Court may grant anticipatory bail, provided the applicant demonstrates that his or her right to liberty is likely to be compromised or breached unlawfully by an organ of the state that is supposed to protect his right. The applicant must demonstrate that the apprehension of arrest is real and not imaged or speculative
Procedure of applying for anticipatory bail:
There is no provision for anticipatory bail under S. 123 of the CPC
To apply for anticipatory bail, one must petition the High Court (under Article 22) as the High Court has exclusive jurisdiction to hear constitutional matters
Difference between Holding and Subsidiary companies, and liability regarding the same?
Holding company: is one that holds a percentage of stock/shares of another company
It is a parent company designed to own and control other businesses
Their mandate is normally: executive oversight, support, setting risk management parameters and strategy
Subsidiary company: is one that is owned and controlled by a parent company (in this situation, by the holding company)
E.g. a subsidiary might own and manage assets of a holding company to keep the liability of those assets separate from the holding company
Liability: this structure helps to minimise liability as the excess cash and assets of the subsidiary can be transferred to the holding company, and since both are separate corporate entities, any civil or criminal liability incurred by the subsidiary will not affect the holding company (unless piercing the corporate veil)
What are the benefits of a Holding Company?
Tax benefits, as dividends are paid from the operating company to the holding company which transfer doesn’t incur tax liabilities and so the shareholders get their share of profit tax-free
Minimises liability, as all the excess cash earned by the operating company is transferred to the holding company and so it out of reach of creditors of the operating company
You can add a holding company to your operating company at any point, so even if you do not have one now, you can make your holding company the shareholder
What is the Corporate Veil and when can it be lifted?
Corporate veil: the concept comes from Solomon v Solomon whereby a company and its shareholders are two distinct and separate personalities, and so shareholders of a company cannot be held liable for the company’s debts and other obligations
Reasons for lifting of the corporate veil:
Façade of sham ( Gilford Motor Company v Horne
Agency ( Adams v Cape Industries
Tort/interests of justice ( Chandler v Cape Industries
Single Economic Unit ( DHN v Tower Hamlets/Jones v Lipman
Impropriety ( Adams v Cape
What is the Central Depository Fund?
A Central Depository System provides a centralised system for the transfer and registration of securities in electronic format without the necessity of physical certificates
The guarantee fund is a fund set up to ensure financial integrity in the securities market
It is a mechanism managed by the CDSC (Central Depository and Settlement Corporation) to ensure that trades will be settled among Central Depository Agencies
What are Reproductive Health Rights?
These are legal rights and freedoms relating to the reproduction and reproductive health that vary amongst countries around the world
It includes the right to safe abortion, birth control, freedom from coerced sterilisation and contraception, the right to access good quality reproductive health care, right to education and access in order to make free and informed reproductive choices, the right to receive information about STIs and other aspects of sexuality, and protection from practices such as FGM. An example is:
Convention on Elimination of Discrimination Against Women (CEDAW)
Article 16 guarantees women equal rights in deciding how many children to have, if you want children, the age spacing between children, etc.
Article 10 specifies that women’s right to education includes right to information on family planning
In what situations can a gift fail?
Ademption: where a specific gift is made, the gift will fail for ademption is the subject matter of the gift does not form part of the Testator’s estate at the time of his death, e.g. it is likely to occur because the property was sold, destroyed or given away during the Testator’s lifetime
Lapse of time: a gift lapses if a beneficiary under a will predeceases the Testator. There are exceptions from the doctrine of lapse of time:
The beneficiary dies leaving behind a child (issue), then the property passes to the intended-beneficiary’s child
A gift made in discharge of a moral obligation may pass to the personal representative of the predeceasing donee
If a gift to one joint tenant fails because if that joint tenant predeceased the Testator, the doctrine of survivorship kicks in and the gift will pass to the surviving joint tenant or tenants
A gift to a class, i.e. the gift will be divisible between the members of the class who survive the testator
Election: doctrine of election is a common law rule of equity that requires that if a Testator attempts to dispose-off property belonging to someone else, and also makes a devise to that person, the beneficiary must choose between either keeping the property or accepting the devise. There are 3 requirements for election:
The Testator must intentionally dispose-off the property;
The property must belong to someone other than the Testator; and
The will must devise other property to the actual owner
Disclaimer: the refusal of a gift prior to acceptance is known as a disclaimer. A beneficiary is free to refuse a gift if they wish, the law will not force a beneficiary to accept a testamentary gift against their Will. To qualify as a disclaimer, the refusal of the gift must take place before the beneficiary accepts any benefit from it. A disclaimer is generally final although a disclaimer made other than by deed on which no one has altered their position may be withdrawn. A disclaiming beneficiary cannot determine the destination of the disclaimed property
What are the reforms in Sale of Goods Act with regards to UK consumer protection?
Conditions under the Sale of Goods Act:
Right to sell ( ( S. 14(a): seller has a right to sell the goods, and in the case of an agreement to sell, he will have a right to sell at the time the property is to pass. This protects a buyer who unknowingly bought, or agreed to buy, goods which had been stolen
Correspond to description ( ( S. 15: where goods are sold by description, there is an implied condition that the goods will correspond to the description
Correspond to sample ( ( S. 15(2): correspond to sample and description: the above rule applies even if the buyer is buying something displayed before him on a counter
Merchantable quality ( ( S. 16(b): where goods are bought from a seller who deals in goods of that description, there is an implied condition that they are of merchantable quality
Fitness for purpose ( ( S. 16(b): goods bought for a particular purpose are reasonably fit for that purpose. This condition is implied if: the particular purpose was made known to the seller (expressly or by implication); seller supplies such goods in the course of his business; and the buyer relied on the seller’s skill or judgement
Buyer has opportunity to compare bulk and sample ( ( S. 17(a): bulk goods must correspond with the sample and the buyer must be given an opportunity to compare the two to ensure that this is the case
Goods will be free from defect rendering them unmerchantable
Warranties under the Sale of Goods Act:
Quiet possession ( ( S. 14(b): provision is intended to protect the buyer against defects of title which arise after the contract is entered into
Free from charge or encumbrance ( ( S. 14(c): goods shall be free from charge of encumbrance in favour of any third party which is not declared or made known at the time the contract is made
Nemo Dat Quon Non-Habet ( ( A person cannot give that which he does not have, and if this is the case then the buyer acquires a voidable title
Exceptions to the Nemo Dat Rule? (These amount to consumer protection)
Estoppel: raised against the owner of the goods if his conduct led a third party into believing that the person who was selling the disputed goods was either the owner or had the owner’s authority to sell the same
Sale by factor: if a mercantile agent of the seller sells the goods to the buyer, then the seller is prevented from disputing the said sale
Sale under voidable title: buyer in good faith without notice of the defect in a seller’s voidable title (which has not been avoided at the time of the sale) acquires good title
Resale by seller in possession: a person acquires good title if he receives the goods in good faith without notice of the previous sale
Sale by buyer in possession: transfer of the goods or documents of title to a third person, without notice of lien or other right of the original seller, has the same effect as if the person making the transfer were a mercantile agent of the seller
What are the rights and remedies of an unpaid seller?
Personal remedies:
S, 49 ( Action for price
S. 50 ( Action for damages
Real remedies:
S. 41 – 43 ( Right of lien or retention of goods
S. 44 – 46 ( Stoppage in transit
S. 48 ( Right to re-sell goods (to mitigate damages)
Right to withhold delivery of goods where property has not passed to the buyer
Which torts may arise in front office?
Intentional Torts: where an individual or entity purposely engages in conduct that causes injury or damage to another. However, it is not a crime because a criminal act is one which interferes with the interests of society
Assault
Battery
False imprisonment
Conversion
Infliction of emotional distress
Fraud/deceit
Trespass
Defamation
Negligence torts: these are not deliberate actions but are scenarios where an individual or entity is careless and fails to provide a duty of care owed to another
Slip and fall accidents ( can happen at the front office
Car accidents
Truck accidents
Motorcycle accidents
Pedestrian accidents
Bicycle accidents
Medical malpractice
Strict Liability: cases where liability for damage can be imposed on the wrongdoer without evidence of negligence or direct fault ( The Sexual Offences Act is a strict liability statute, e.g. statutory rape or traffic offences or selling alcohol to a minor or selling drugs
Types of nuisances?
Public nuisance: is a wrong act which affects all the citizens of the country, the city, town or village, and all civil proceedings brought in respect of public nuisance are normally brought in the name of the Attorney-General. This does not however bar an individual from commencing an action in respect of public nuisance where he has suffered special damage over and above that suffered by the public at large, or where in addition to the interference with the public right, the act involves interference with a private right or special statutory protection vested in the individual ( e.g. smoke from a factory
Private nuisance: may be defined as injuries to property or to rights over property ( “a private nuisance arises out of a state of things on one’s main property whereby his neighbour’s property is exposed to danger ( "the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape"
Statutory nuisance: set out in legislation, e.g. S. 115 of the Public Health Act imposes a duty not to cause/create a nuisance on land which you as an individual own/control, i.e. not to create a dangerous situation for individuals or for their health
What are the defences to nuisance?
Statutory authority
Triviality
Lawful use of land
Reasonable act or omission
Prescriptive right (i.e. act continued for some time without complaint arising)
Who has Property in a dead body?
It is trite law that there is no property in a dead body (trick question)
Halsbury’s Laws of England cite R v Fox (1841): ‘a creditor is not entitled to retain the dead body of its debtor as security for his debt’
Wambui Otieno case: wife and family were fighting over the body of the deceased and it was held that an African man never loses touch with his cultural roots unless he explicitly says so, and so he has to be buried where he was born (his Father’s home)
However, the power/authority to dispose-off a dead body would primarily fall with the next of kin of the deceased person
What is the meaning or effect of serving summons to enter appearance?
Order 5, Rule 1 Civil Procedure Rules
Summons to enter appearance are normally prepared by the Plaintiff/Claimant/Applicant and served upon the Defendant/Respondent, together with a copy of the claim, whereby the Defendant is notified of the Claim and summoned to appear in court and answer to the charges/allegations made by the Plaintiff
How to enter appearance?
File a Memorandum of Appearance and appear in court on the date specified in the Summons to Enter Appearance
Does the plaint accompany summons while serving the summons, documents accompanying the plaint?
Yes, a Plaint must accompany Summons to Enter Appearance
Documents accompanying a Plaint: Witness Statement, List of Witnesses, List of Documents and Bundle of Documents
Rationale: you need to know what you are entering appearance for, i.e. right to fair trial means you are given all the information necessary to be able to adequately defend yourself
How to serve a convict in prison?
Order 5, Rule 18 Civil Procedure Rules ( Must be personal service
Where the Defendant is a prisoner or a person in custody, service is to be effected on them in the presence of the officer in charge and not to be send to the officer for service
Who serves? His qualification?
A court processed server, i.e. an individual licenced by the High Court of Kenya to provide personal delivery of legal documents
As of 2018, there were 699 process servers registered (as per online records)
What is the nature of the relationship between Client and Advocate?
Agency relationship: a lawyer has the authority to act on behalf of his Client in specific matters (for which he has been instructed) and has a limited power for the same
However, a lawyer must consult the Client and provide him/her with all vital information before making any decision on behalf of the Client (i.e. a decision which binds the Client)
What is the meaning of fiduciary duty?
A legal obligation of one party to act in the best interests of another
A Fiduciary has a duty of care, and this duty varies depending on the position of the Fiduciary ( involves special trust, confidence and reliance on the Fiduciary to exercise his discretion or expertise in acting in the best interests of the other
E.g. a Director has a fiduciary duty towards a company to act in the best interests of the company, to avoid conflicts of interest, not to make secret profits, etc.
Nature of relationship between Directors and a Company, explain.
The relationship is a Fiduciary Duty owed by the Directors of the company to the company
A Director and the Company have an agency relationship, whereby the Director must always act for and on behalf of the company. This imposes a fiduciary duty on the Director to always act in the best interests of the company, e.g. by exercising reasonable care and skill
This fiduciary duty thus translates to a legal obligation which has even been codified under the Companies Act 2015, which states Directors duties to be:
A Director must only act within the powers as granted by the Company’s constitution
A Director has a prime duty to promote the Company’s success (unless insolvent)
A Director must exercise independent judgment
A Director must exercise reasonable care, skill and diligence in his/her role
A Director must avoid conflicts between his/her role and his/her personal interests
A Director cannot accept benefits from third parties which arise from his/her role
A Director must always declare to other director his/her personal interest in any transaction or arrangement which the Company proposes to enter into
Explain Res Judicata and Sub Judice?
Sub-judice: Section 6 of the Civil Procedure Act ( “No Court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or other Court having jurisdiction in Kenya to grant the relief claimed”
Res Judicata: Section 7 of the Civil Procedure Act ( a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties on the same matter
The difference is therefore: sub judice covers the discontinuance of matters that are being currently pursued, while res judicata covers the discontinuance of matters that have already been pursued and decided with finality as between the same parties
What is the basis of the duty of confidentiality owed by Advocates to their Clients?
In order to be able to adequately defend one’s clients, one needs to have all the information
Right to a fair trial and to be presumed innocent until proven guilty would be infringed upon if the Advocate had to reveal all communication between him and the client
Apart from legalese what other forms of legal writing are discouraged?
Passive voice is discouraged ( Advocates are encouraged to write in the active voice
Verbosity, i.e. Advocates are discouraged from being too wordy; documents should be clear and concise
Advocates are also encouraged to write in a structured, logical manner whereby a document/argument is easy to follow, i.e. discouraged to write in a haphazard manner
What are some of the measures that have been taken to reduce the backlog of cases in courts?
Promotion of ADR methods
Recruitment and training of more Judicial Officers and staff
Building and refurbishment of more courts
Adoption of modern case management practices, e.g. through employing new ICT systems
‘Themed service weeks’, i.e. categorised cases are heard and determined within the service week period
What are the instances where a plea can be deferred?
When the accused has to undergo a mental assessment before taking a plea ( The court, under S. 137G of the Criminal Procedure Code, must ensure that the accused is competent, of sound mind and voluntarily takes a plea
When the prosecution needs more time to craft an accurate charge or add an additional charge as against the Defendant
How long does an interlocutory injunction last once the order has been granted?
Order 40, Rule 4(2) ( Ex-parte interlocutory injunction may be granted only once, for 14 days, and can only be extended once after that for 14 days either by consent of the parties or order of the court
Order 40, Rule 6 ( Where a suit over which an interlocutory injunction has been granted is not determined within 12 months, the injunction shall lapse unless the court is convinced otherwise by the parties
What is the jurisdiction of the Supreme Court?
Appellate jurisdiction ( may hear appears from the Court of Appeal which have been certified as being of public importance
May determine questions of constitutional interpretation
Original jurisdiction ( to hear Presidential Election petitions
Advisory jurisdiction ( may render an Advisory opinion on a question of law; the opinion may by sought by the National or County Governments
What do you understand by independence of the judiciary?
The Judiciary is one of the arms of the Government (the other two are the Executive and the Legislature) ( This stems from the concept of separation of powers
The three arms of Government have been purposely separated so as to create a system of accountability, i.e. checks and balances
In particular, the Judiciary is kept separate and independent due to the fact that it has the power/authority to punish excessive use of power, acts with are ultra vires, etc. (including acts of the Executive and the Legislature)
She gave me a land scenario, about aggrieved residents of Kitui who suffered from coal mining. Then asked me what documents I would file and in which court?
Approach one: Constitutional Petition
They are residents, and so it would be possible for them to bring a Constitutional Petition claiming a breach of their rights under Article 42 and 43 of the Constitution ( breach of their rights to a clean and healthy environment, which in turn infringes on their right to the highest attainable standard of health
File in the Environment and Land Court
A Constitutional Petition is accompanied by a witness statement, list of witnesses, list of documents and bundle of documents
Approach two: Public nuisance suit
Brought at the Environment and Land Court
Breach of public rights under the constitution
What are the principles of management of a Law Firm?
Planning ( strategizing the vision of the law firm and the direction in which it is intended to go. Entails creating a strategic plan that would incorporate the targeted clientele, the means by which that clientele will be served and the manner in which that service shall be delivered
Organising ( once you have a vision, organising comes in to develop a work-flow structure and to take care of administrative decisions
Staffing ( how many staff, what methods of recruitment, how to maintain the staff, how to support the staff, etc.
Leading ( what role will lead staff take, how to inspire/motivate junior staff, will there be a Human Resources department, etc.
Control ( overall oversight of the running of the law firm – someone is to be appointed to do this
Spousal rape and where it is provided for by law?
The Sexual Offences Act does not prohibit or criminalise forced sex within marriage
Spousal rape is explicitly exempted by Section 43(5) of the Act which provides that ‘with regards to claims of sexual abuse such as rape it shall not apply in respect of persons who are lawfully married to each other’
This exemption clause tends to legalise rape within marriage ( lack of laws criminalising rape created an assumption that the wife is exclusive property of the husband
Talk about the repugnancy clause in the Constitution of Kenya.
Article 159(3)(b) Constitution 2010 ( “traditional dispute resolution mechanisms should not be used in a way that is repugnant to justice and morality or results in outcomes that repugnant to justice or morality”
Section 3(2) Judicature Act ( “[courts] shall all be guided by African customary law in civil cases in which one or more of the parties is subject to or affected by it, so far as it is applicable and not repugnant to justice and morality or inconsistent with any other written law”
Two principles that can be gathered from this:
African customary law is subordinate to the Constitution and other written law
Even where applicable, African customary law needs to be tested as against principles of natural justice and morality, i.e. this is where principles of equity may come in to play
What is the difference between a production order and habeas corpus?
Production order: an application made under S. 116 of the Criminal Procedure Code which grants the Judge or Magistrate the power to order that the detained individual be brought before the court (Note – there is also a case where a production order was issued against a mother in a custody battle to bring her child to court)
Habeus corpus: is a prerogative process of securing the liberty of the subject by affording a means of immediate release from unlawful or unjustifiable detention, whether in prison or private
Difference between the two: the habeus corpus deals with bringing an individual to court because they have been illegally or unjustifiably detained, whereas a production order involves bringing them to court with regard to ongoing proceedings
What are capital offences and examples of the same?
Capital offences are offences which attract the death penalty if proven
Examples of capital offences in Kenya are:
Murder
Treason
Robbery with violence
Attempted robbery with violence
Administration of unlawful oaths to commit capital offence
What are substantive and procedural laws?
Substantive laws: Substantive law defines how the facts in the case will be handled, as well as how the crime is to be charged. In essence, it deals with the substance of the matter
Procedural laws: Procedural law provides the process that a case will go through (whether it goes to trial or not). The procedural law determines how a proceeding concerning the enforcement of substantive law will occur
Example: the Land Act is the substantive law and the Land Registration Regulations are the procedural law that governs the processes involved in conveyancing, e.g. the Land Registration Act forms that are contained therein ( another example is the Penal Code (substantive law) and Criminal Procedure Code (procedural law)
Does procedural law ever supersede substantive law and international laws?
Yes, in certain circumstances procedural law may supersede substantive or international law, for example:
In employment law disputes: you must be terminated after due process has been followed (e.g. disciplinary hearing) or else, even if the termination was founded on reasonable grounds, the employer may still be liable to pay damages
Or, in evidentiary hearings: evidence, even if it proves the criminal culpability of the Defendant, may be excluded from the record if it was obtained using illegal methods, e.g. torture
How do you conduct an online search?
Create an e-citizen account
Define a retainer and give examples of different types.
Retainer: a contract between attorney and client specifying the nature of the services to be rendered and the cost of the services. A retainer also denotes the fee that the client pays when employing an attorney
It is a ‘work for hire’ contract, with the distinguishing feature being that the employer pays in advance for work to be specified later
Absent an agreement to the contrary, a retainer fee may be refunded for work not performed
Different types of retainer:
General retainer ( secures the services of an Advocate when needed. Runs indefinitely and payment may be from time to time. Ends when party gives notice
Specific retainer ( for a specific reason e.g. a particular litigation, duration depends on how long the specific activity takes to be completed
Refundable retainer
Non-refundable retainer
Hybrid retainer
Tell us what you know on adverse possession?
Section 7 of the Limitation of Actions Act ( the plaintiffs must show:
That they have been in continuous Possession of the land for 12 years or more;
That such Possession has been open and notorious to the knowledge of the owner; and
That they have asserted a hostile title to the owner of the property.
The proper way of assessing proof of Adverse Possession would be whether or not the title holder has been dispossessed or has discontinued his Possession for the statutory period, and not whether or not the claimant has proved that he or she has been in Possession for the requisite number of years
Mbira –v- Gachuhi (2002) IEALR 137: “a person who seeks to acquire title to land by the method of Adverse Possession for the applicable statutory period must prove non-permissive or non-consensual actual, open, notorious, exclusive and Adverse use by him or those under whom he claims for the statutory prescribed period without interruption”
Rationale: land should be put to its best economic use ( Article 60 of the Constitution says that land must be used and managed in a manner that is productive and sustainable
What section that was repealed in the Law of Succession Act, and what is has replaced that provision?
1981 – 1990: Muslims regarded the government’s act of passing the Law of Succession Act as a repudiation of the assurance given at independence. Their case was that the Quran or a statute embodying the provisions of the Quran must govern matters of personal law for Muslims. They sought to be exempted from the LSA which conflicted with the Koranic principles e.g.
S 5 of the LSA on Freedom of Testation i.e. discretion of Testator to dispose of property as one wishes to persons he wishes. No obligation to provide for dependents. However, under Islamic law, only 1/3 of the Muslim’s estate can be disposed of by will. 2/3 should be dealt with according to Koranic principles i.e. shares were fixed for particular heirs
S 3(2), which defines children, and S 29, which defines dependents, were contentious. S 3(2) defines a child to include adopted and illegitimate children. Also, S. 29 includes adopted and illegitimate children, also step children BUT under Islam, stepchildren have no right of inheritance from their deceased father. They can only inherit through their mothers. Illegitimate children cannot inherit through their biological fathers.
The government gave in to the pressure and the Law of Succession Act was amended by Statute Law (Misc. Amendment) Act No. 2 of 1990, which disapplied the Act to persons who, at the time of their death were Muslims. Instead, Islamic law as contained in the Quran would govern such persons
The amendment thus introduced S 2(3) and S. 2(4) & S 48(2)
S 2(3) disapplies the substantive provisions of the Act to the estate of a deceased Muslim (both testate and intestate). The estate of a deceased Muslim is exclusively subject to Muslim law
S. 2(4) applies the procedural aspects of the Act, i.e. the provisions relating to the administration of the estate of a deceased Muslim as long as the provisions are not inconsistent with Islamic law
S 48(2) confers the Kadhi’s Court with jurisdiction to determine questions relating to succession in accordance with Islamic law. In effect, S 5 of the LSA no longer applied to Muslims, but the act applies with respect to management of the estate i.e. a Muslim can take out letters of administration
Name a Governor implicated with corruption, his name, his county, and discuss his rights to bail.
Evans Kidero ( first in September 2018 and then April 2019
Corruption in 2019 involves irregular payment of 68 million to a law firm ( charges raised range from money laundering, to abuse of office, etc.
He was the former Governor of Nairobi County
Rights to bail: were denied for 3 days, after which he was granted 8 million cash bail
What is contempt of court?
This is disobedience or disrespect towards a court of law and its officers in the form of behaviour that opposes or defies the authority, justice and dignity of the court
Contempt is the wilful disobedience or disregard of court orders, judgment, decrees or directions
Punishment for contempt: Kshs. 200,000/= fine or imprisonment not exceeding 6 months
However, the act has now been declared unconstitutional because:
Lack of public participation
Will provide a breeding ground for corruption as public officials will breach the law knowing that they are in a position to pay the meagre fine
Dependants who are they? What section? Categories?
A dependent is someone who needs the support of something or someone to continue existing
Dependents are provided for under Section 29 LSA and are divided in to 3 categories:
Dependents who are eligible regardless of whether or not maintained by deceased prior to his death ( wives, former wives and children
Dependents who are eligible if maintained by deceased prior to his death ( parents, grandparents, grandchildren, step-children, children taken in as your own, brothers and sisters
Dependent husbands (if maintained by wife prior to her death)
What are originating summons and which cases are instituted by them?
Originating summons are a manner of instituting proceedings in court, and are mainly used where provided for in the Civil Procedure Rules or some other statute
Originating Summons are used for simpler, shorter and speedier process
They are used where there is an existing relationship between the parties which is not in dispute ( there are usually no witnesses in the dispute and evidence is by way of an Affidavit
They are used in:
Succession matters ( where one has an interest in the estate of the deceased, e.g. any question affecting the rights or interests of a person claiming to be a creditor, he/she may approach the court by way of O.S.
Land matters ( e.g. cases related with agreements for sale, purchase of immovable property, disputes between chargors and chargees, etc.
Making an application for a caveat may be by way of an O.S.
Extension of limitation periods under S. 27 of the Limitation of Actions Act
What are the ways to institute a suit?
Plaint
Statement/Memorandum of Claim
Judicial Review
Notice of Motion
Originating Summons
Petition
Before you institute proceedings, you must serve the Defendant with a demand letter
What are overriding interest, legal easements, way leave, public rights of way and profit a pendre?
Overriding interests:
These are interests in land that are unregistered yet supersede and still bind any party who acquires the land that is the subject to that interest
Example: an interest that belongs to a person in actual occupation (such as a spouse) will override the first registration of the land affected by that interest, e.g. you need spousal consent to charge a matrimonial home
Legal easements:
This is the right to use the real property of another for a specific purpose. The easement is itself a real property interest, but legal title to the underlying land is retained by the original owner for all other purposes
For an easement to be created there must be two properties, i.e. the servient tenement and the dominant tenement
The servient land is the land over which the easement is created
The easement can be created for a particular reason
E.g. if you need a pipe to pass over your neighbours’ property so that you may get water at your house
Way leave: (this is a right analogous to easements)
A wayleave (created on the servient land) is a terminable licence which does not automatically bind future owners of the property
It grants you access to the way leave for purpose of development, restricting, etc.
It gives the power companies rights to install and retain their apparatus (such as underground cables or overhead lines) with annual payments being made to the property owner
A way leave will normally contain provision for termination at the expiry of a notice period (commonly 6 or 12 months)
In an easement we have two properties concerned, but with a wayleave you are concerned only with one property and with creation/enjoyment of certain rights that are created over that property
Communal Rights (this is a right analogous to easements)
Access Orders (this is a right analogous to easements)
Profit a prendre:
This is a non-possessory interest in land which gives the holder of that interest the right to take natural resources from the land of another
E.g. petroleum, timber, minerals, agricultural produce, wild gain, etc.
What is restorative justice?
Restorative justice is a concept based upon values that emphasize the importance of providing opportunities for more active involvement in the process of:
Offering support and assistance to crime victims;
Holding offenders directly accountable to the people and communities they have violated;
Restoring the emotional and material losses of the victims;
Providing a range of opportunities for dialogue and problem solving among interested crime victims;
Offering offenders’ the opportunities for competency development and reintegration into productive community lives; and
Strengthening public safety through community building
Section 2 of the Victim Protection Act No. 17 of 2014 defines restorative justice -
"restorative justice" includes –
(a) the promotion of reconciliation, restitution and responsibility through the involvement of the offender, the victim, their parents, if the victim and offender are children, and their communities; or
(b) a systematic legal response to victims or immediate community that emphasises healing the injuries resulting from the offence;”
What is the principal of survivorship?
Principle of survivorship applies to joint tenants and dictates that where one joint tenant in a joint tenancy dies, then the interests of the deceased joint tenant merge with the surviving joint tenant in whom the interests of the estate vest
If both joint tenants die simultaneously, then the court assumes that the older joint tenant died first and the estate passes to the beneficiaries of the younger joint tenant
If the joint tenants are husband and wife, it is assumed that they died simultaneously and the estate will devolve upon their surviving beneficiaries, i.e. their children, or if they have no children then upon their dependents as under Section 29
What is bail pending appeal and what are the principles?
Principles of bail pending appeal:
The existence of exceptional or unusual circumstances;
The appeal is likely to be successful on a point of law or a substantial part thereof; or
The circumstances disclose substantial merit in the appeal which could result in the appeal being allowed
Circumstances in which bail pending appeal will be granted:
The character of the offender (e.g. whether the applicant for bail is a first offender);
Whether the offence of which the applicant is convicted involved personal violence;
The appeal must not be frivolous and must have a reasonable chance of success;
The possibility of substantial delay in the determination of the appeal; and
Whether the applicant complied with bail conditions granted before the applicant’s conviction
What is Judicial Review, and its process plus orders sought under it?
Judicial Review: the means through which the courts supervise the actions or decisions of administrative bodies or tribunals. Decisions may be reviewed on three grounds:
Illegality;
Irrationality; or
Procedural impropriety
The court’s role is not to concern itself with the merits of the decision but only with the decision-making process
Orders sought under a Judicial Review include:
Declaration ( a formal statement by the court that an action or decision is unlawful. It is not contempt of court to ignore or defy a declaration, but the government will ordinarily comply with the terms of a declaration
Injunction ( an order that something be done or some action taken (a mandatory injunction), or that an administrative body cease or refrain from doing an act (a prohibitive or negative injunction). Most injunctions in administrative law are prohibitive in form. Unlike a declaration, an injunction has a coercive effect, and it is contempt of court to disobey an injunction
Mandamus ( an order by the court requiring an administrative body to perform an act (e.g. make a decision)
Certiorari ( an order that quashes a decision that has been made unlawfully
Prohibition ( an order requiring a body to cease proceedings because it lacks jurisdiction or has exercised its jurisdiction improperly. It is the appropriate remedy when the proceedings are only partly completed, and it prohibits the body from proceeding to make a decision.
Are Leading questions allowed in Trial?
Not in examination in chief ( Because you want to keep your witness on track and ensure that the witness relays the facts of the story in a favourable manner
You can however ask those questions in cross examination ( This is because the purpose of cross examination is to test the accuracy or credibility of the opposing witness; to minimise or repair damage; to cast doubt on the evidence; to challenge disputed evidence and to bring in new questions for the judge to consider
What are the reasons for divorce under the Marriage Act 2014?
If one spouse is adulterous
If one spouse is cruel to their partner or to any of their kids in the marriage
A marriage partner who intentionally neglects the other for at least two years immediately preceding the date of presentation of the petition
A couple that has been separated voluntary or by court order for two years
If one spouse gets sentenced for life imprisonment or for a term of more than seven years
If one of the partners in marriage suffers from an incurable form of insanity and it is proved by two physicians that they cannot be cured during their lifetime using the existing medical knowledge
How to institute Divorce proceedings?
The person seeking a divorce will Petition the court. The petition is accompanied by:
A verifying affidavit
Notice to appear
Confirmation of service or non-service
Witness statement + list of witnesses
List of documents + Documents
15 days after service of the Petition, the Petitioner files a chamber Summons seeking to have the matter set down for hearing
Chamber Summons must be accompanied by an Affidavit by the court process server evidencing service or non-service of the Petition
If there was no service, the Affidavit must contain proof of efforts to reach the Respondent
The matter is then set down for hearing for one day. One of the grounds must be proven (i.e. adultery, cruelty or desertion) and it must be proven that the Petition did not collude with or contribute to the grounds
If proven, then the court will issue a decree nisi
One month later (the one-month gap is for appeals or reviews) the court will issue a Decree Absolute
Types of petition?
Constitutional Petition
Guardianship Petition
Divorce Petition
Election petition
How to institute a default judgment?
Order 10, Rule 4(1) Civil Procedure Rules 2010
Make a request to the court under Form 13, Appendix A of the Civil Procedure Rules
This request is made where the defendant/defendants have failed to appear in court after they have been served with Summons to Appear
Types of title?
Indenture Title: This was a title under the Government Lands Act Cap 280. It has since been repealed
Grant Title: This was a government grant under the Registration of Titles Act Cap 281 and a county council grant under Trust Land Act Cap 288. Both have been repealed
Certificate of Title: This is under Cap 281 issued due to subdivision without change of user. Change of user happens when one shifts from, for instance, agriculture to residential
Certificate of Lease: This is a title under the Registered Lands Act Cap 300 (repealed) for leasehold land. Leasehold is a form of land tenure where a lessee (occupant) holds rights to land for a specific period and subject to conditions imposed on land rights by the lessor (landowner). The period can be 33, 50, 66 or 99 years for all urban plots
Absolute Title: This is a title under the Registered Lands Act Cap 300 (repealed) for freehold land. This is a form of ownership in which the land owner has the maximum rights in terms of period of ownership and use of the land
Sectional Title: This is a title for a unit within a building, for example a flat. It emanates from the Sectional Properties Act of 1987 and the title is deemed to be registered under the Registered Lands Act Cap 300
It is important to note that the Land Registration Act, 2012 in Section 26 consolidates the above several titles into the Certificate of Title. The aim is to rationalise and reduce confusion brought about by previous Land Acts, which resulted in various types of titles existing concurrently
Different ways to acquire title?
Allocation: This is where public land is transferred by the government to individuals usually for a specified time and for a specific use with stated conditions. Allocation can be through a public auction, tender, drawing of lots or balloting or by confining allocation to a disadvantaged group. For land to be allocated, it must first be planned, surveyed and serviced
Land adjudication: This is when rights and interests to land are ascertained and recorded in areas of community land (formally known as the trust land areas)
Compulsory acquisition: This is the acquisition of land by the government for a public purpose but subject to fair and prompt compensation. Publication of the intention to acquire is done through the Kenya Gazette and County Gazette
Prescription: This is also known as adverse possession and occurs when one gains title to real property through occupation of land without opposition for 12 years. It involves a court process and the adverse possessor must prove that she actually occupied the land continuously without interruption for the above specified time
Settlement programmes: This is when the government provides access to land for squatters, persons displaced by natural courses like floods, development projects, conservation or internal conflicts by use of the Land Settlement Fund administered by the National Land Commission. Formerly it was known as Settlement Fund Trustees
Transmissions: This is when ownership passes to another party whose powers over the land are restricted as in cases of death, bankruptcy and on liquidation of a company. In case of death, a personal representative will be registered as the proprietor of the land, for bankruptcy a trustee becomes the registered proprietor while a liquidator shall be registered as the proprietor in cases of liquidation of companies, all by order of the court
Transfers: This is the transfer of rights to land through sale. A transfer is done after acquiring consent from the relevant County Land Management Boards in (all 47 counties). Stamp duty of 2 per cent of the value of the land is payable to the government in townships and rural areas while a duty of 4 per cent is charged on land in municipalities and cities. The transfer document with the original title are then booked for registration in favour of the buyer
Remedies of a purchaser if the National Land Commission revokes titles?
If any person believes that the decision made by NLC was arbitrary or unlawful, they have the right to challenge the decision in a court of law and seek the following remedies:
A declaration of rights issued, including but not limited to a declaration of ownership of land;
An injunction issued barring the NLC or Chief Land Registrar from revoking a title to land;
An interim order protecting the land from revocation or other harm pending determination of the suit;
An order of compensation issued for the violation of constitutional rights and actual losses suffered as a result of the revocation of titles to land; and
Orders of judicial review, including an order compelling the NLC or Chief Land Registrar to do or perform a particular act; an order preventing the NLC or Chief Land Registrar from revoking the titles to land and an order quashing the decision by the NLC or Chief Land Registrar to revoke titles to land.
The Act also provides that no revocation of title to land shall be effected against a bona fide purchaser for value without notice of a defect in the title to land ( such a bona fide purchaser whose title to land has been revoked could challenge the revocation before a court of law
Rights of an arrested person?
These rights are contained under Article 49 of the Constitution
The right to be presented before a court of law within 24 hours of arrest;
The right to be arraigned in court after the arrest;
The right to be informed of the reason for the arrest or detention;
The right to be held separately from persons serving a sentence;
The right to remain silent;
The right not to give a confession or make any other self-incriminating statements;
The right to consult an Advocate;
The right, at the first court appearance, to be informed of the reason for the detention continuing or alternatively to be released; and
The right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released
What happens after an accused is put to his defence?
Section 87 Criminal Procedure Code
After the prosecution case, there are 2 possible scenarios:
If the accused has not already put forward his defence, the prosecutor may decide to withdraw all charges and discontinue the prosecution (but this does not act as a bar to future prosecutions on the same set of facts); or
If the accused has already put forward his defence, the prosecutor may decide to withdraw the charges, in which case the accused will stand acquitted
Contents of a prosecution file?
Sub-file ‘A’
This contains the name of the officer opening the custody record
The accused person’s personal details like names, postal and residential addresses, age, occupation and ethnic/racial group ( the accused’s person’s name is noted in order to identify the person
Name and rank of the arresting officer and officer in charge of the investigation are also noted
Detained person’s rights are read, recorded and interpreted, in case the suspect does not understand the language
All documents relating to the report of the offence and all subsequent or amended reports to be marked A(1), A(2), etc.
Sub-file ‘B’
Photographs, sketches, plans and such other material referring to the scene of the crime together with copies of any other documentary exhibits should follow the reports ( these documents will be marked B(1) – Photographs, B(2) – Sketches, etc.
Sub-file ‘C’
Copies of reports such as post-mortem reports, ballistic report, finger prints, government analysts, handwriting experts and all other expert reports
Sub-file ‘D’
Contents of medical reports and such other experts whose language is technical must be supported by a statement from the expert setting out in detail and simple language the contents of the report
Witness statements (prosecution files must have prosecution witness statements)
The complainant’s statement that forms the basis of the charge
The arresting officer’s and investigation officer’s statements
As well as all expert witnesses’ statements and all material witnesses’ statements should be in the police file
Should include: date, time and place the statement was taken; the name of the person, etc.
The language used by the person making the statement will be indicates at the head of the statement by adding the words ‘in the … language’
Copies of all other prosecution witnesses should then follow
Sub-file ‘E’
Then follows the main statement by the accused person including statements made under caution and statements made under inquiry ( normally the police have decided to charge by the time the cautionary statement is issued
Sub-file ‘F’
Investigation diaries of all police officers conducting the investigation which must be full and accurate and set forth times, dates, places visited and action taken
Sub-file ‘G’
Copies of charge sheet and related documents that will be read in court to the accused person (this sub-file is the heart of any criminal trial)
Contains all documents related to the trial ( this file is where your expertise as a lawyer comes in; you must draft charges in such a way as to beat factors such as duplicity, mis-joinder, etc.
Sub-file ‘H’
List of witnesses, exhibits, accused’s property, accused’s criminal record, etc.
Prosecutors’ must avail a list of witnesses before trial, however, you need to ensure that these lists are not widely shared (or else this may lead to witness intimidation, etc.)
The criminal record of the accused will be important at mitigation (especially of the accused is acquitted)
Sub-file ‘I’
Thereafter, (finally), the covering report drawn up by the officer in charge of the investigation ( it is akin to a legal opinion; it sets forth in detail the prosecution case as it stands. Reference must be made to the contents of the file. It summarises the prosecution case
The covering report will refer to the contents of sub-file A to sub-file H (use of footnotes and end notes here is important)
The officer will explain why the accused person should be charged with [x] offence
Sub-file ‘J’
On the left-hand side of the police file cover, a correspondence sub-file will be kept
This sub-file deals with requests for advice from the Investigating Officer to the Officer in Charge or any other correspondence on the matter
E.g. if the DCI has written a memo calling for the file, asking questions, giving instructions, etc. all of this information would go to sub-file J
The sub-file also contains instructions from gazetted officers/state counsels to IOs
Commentary remarks and other matters of interest arising out of the case are also recorded in this sub-file (sometimes referred to as the minute sheet)
Initial report
Documentary evidence, e.g. list of exhibits and witnesses
Accused’s records and statements
Investigation diaries
Expert reports
Witness statements
Copies of charge sheet
Covering report
Correspondence
Contents of a defence file?
Instruction file
Client attendance form
Court attendance form
Charge sheet
Legal opinion/brief
Fee notes
Copies of documents for bail
List of accused’s properties when arrested
Copy of prosecution file
Legal research to be relied on/list of authorities
Case strategy
Defence witness statements
Correspondence
What is a trial within a trial?
A trial within a trial in our criminal justice system is an enquiry into the manner in which a statement by an accused person in respect to the case before the court was recorded. It seeks to determine the voluntariness of that statement
How can a company raise capital?
By selling shares
By taking a loan
By mortgaging the assets of the company
By making use of an overdraft facility
Changes that the Companies Act 2015 implemented?
Introduction of sole membership of private companies, i.e. entrepreneurs will no longer be required to incorporate a company with at least 2 members
Removal of previous procedural technicalities for compliance have been codified:
No obligation for private company to have company secretary where paid up capital does not exceed 5 million
Private companies are allowed to have 1 Director and public companies must have 2
Minimum age of Director is now 18 years with no maximum age
Company’s objects no longer restrict its capacity
The members may pass resolutions in electronic form now
Company may notify shareholders of notices and announcements through website
Sector-specific articles of association are prescribed
Directors fiduciary duties are codified
Takeovers and Mergers are governed by the Companies Act as opposed to the Capital Markets Act
Introduction of comprehensive financial reporting requirements
Winding up is repealed as a whole and replaced with legal concepts such as administration, liquidation and moratorium ( Governed by Insolvency Act 2015
Constitutional rights under the constitution?
Right to life; right to dignity; right to privacy; freedom of association; freedom of expression; right to information; right to fair trial; right to a clean, safe and healthy environment; right to property; right to economic and social justice; right of access to justice; rights of arrested persons, etc.
Rights that cannot be limited?
Freedom from torture and cruel, inhuman or degrading treatment or punishment;
Freedom from slavery or servitude;
The right to a fair trial; and
The right to an order of habeas corpus.
When can fundamental rights and freedoms be limited?
Article 24 Constitution 2010
A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including--
(a) the nature of the right or fundamental freedom;
(b) the importance or the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
Duties that override those of an advocate to the client?
Fidelity to the law ( duty not to manipulate the law or misrepresent facts/evidence
Honesty to the court ( duty to be honest to the court in all dealings
Confidentiality may be overridden where client discloses information on future crime
Contingent agreements?
Rule 4, Code of Conduct and Professional Ethics ( disallows contingency fee
What is the cab rank rule and its exceptions?
The cab rank rule: The cab-rank rule is the obligation of an Advocate to accept any work in a field in which they profess themselves competent to practise, at a court at which they normally appear, and at their usual rates
Exceptions to the cab rank rule:
Where the client cannot afford the Advocate’s fee
The Advocate has no capacity, i.e. too much work
The Advocate lacks expertise or experience in the field/the subject matter
There is a conflict of interest. This may entail:
The Advocate foresees being a witness in the matter
The Advocate has an interest in the subject matter of the dispute
The Advocate’s representation of this client may adversely affect a former client in terms of confidentiality or prejudice
The Advocate cannot represent two clients who are direct adversaries
What are extra judicial killings?
This is the killing of a person by governmental authorities or individuals without the sanction of any judicial proceeding or legal process
Extra judicial killings often target leading political, trade union, dissidents, religious and social figures and are only those carried out by the state government or any state authorities, e.g. the armed forces or the police as extra-legal fulfilment of their prescribed role
What are the laws governing land matters?
Land Act
Land Registration Act
Registration of Documents Act
Sectional Properties Act
The Constitution 2010 ( Article 40, 60 – 64
Community Land Act
Registration of Titles Act (r)
Government Land Act (r)
Indian Transfer of Property Act (r)
How are easements created?
Creation by express grant or reservation: occurs when the owner of the servient tenement gives the easement to the owner of the dominant tenement (a grant is assumed to be forever unless noted otherwise in the terms of the grant)
Creation by implication:
Prior use: if property that is owned by a single person is split by a grant of part of that property to someone else, or by grants of pieces of that property to different grantees, and it is apparently that an easement would be required for the continuing use of the property in the manner that it has been used until now, an easement may be implied
Necessity: where the owner of a parcel divided the parcel in a manner that deprives one of the resulting subdivisions of access to something that is absolutely necessary for the use and enjoyment of the property
Easement by prescription: equivalent to acquiring a parcel of land by adverse possession, i.e. an easement can be acquired if a person uses property that does not belong to him or her in a manner consistent with the existence of an easement for a period longer than the jurisdiction’s statute of limitations (20 years)
How do you create an easement/right of way/way leave/communal right of way?
By way of deed
By way of a grant
The Chinese government has been constructing roads in Kenya. Recently one of the companies constructing some of the feeder roads did shoddy work. The Government of Kenya sues the Chinese company that didn't construct that road. How do you go about defending the Chinese company?
A preliminary objection on grounds that no legal relationship, contractual or otherwise, exists between the Government and the Chinese company being sued and so there is no valid cause of action (cause of action is a mix of the facts and the law)
You would apply to be struck out as a Defendant as the Plaintiff finds the right Defendant to join to the suit (mis joinder of party – Order 1, Rule 9 CPR)
Where have you reached in criminal litigation? Tell me the contents of a plea bargain agreement.
Criminal Procedure Code, Plea Bargaining Rules 2018
A plea bargain agreement may be entered into between the prosecutor and an accused person where:
The accused person has been charged in court; and
Any time before that court passes judgement
The accused makes a plea of ‘guilty’ or ‘no contest’ in exchange for the prosecutor dropping one or more charges, the prosecutor reducing the charge to a less serious offence, or the prosecutor recommending to the judge a specific sentence
When can an arrest be made without a warrant?
29.
Arrest by police officer without warrant
A police officer may, without an order from a magistrate and without a warrant, arrest—
(a)
any person whom he suspects upon reasonable grounds of having committed a cognizable offence;
(b)
any person who commits a breach of the peace in his presence;
(c)
any person who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody;
(d)
any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to that thing;
(e)
any person whom he suspects upon reasonable grounds of being a deserter from the armed forces;
(f)
any person whom he finds in a highway, yard or other place during the night and whom he suspects upon reasonable grounds of having committed or being about to commit a felony;
(g)
any person whom he finds in a street or public place during the hours of darkness and whom he suspects upon reasonable grounds of being there for an illegal or disorderly purpose, or who is unable to give a satisfactory account of himself;
(h)
any person whom he suspects upon reasonable grounds of having been concerned in an act committed at a place out of Kenya which, if committed in Kenya, would have been punishable as an offence, and for which he is liable to be extradited under the Extradition (Contiguous and Foreign Countries) Act (Cap. 76) or the Extradition (Commonwealth Countries) Act (Cap. 77);
(i)
any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on that person, any implement of housebreaking;
(j)
any released convict committing a breach of any provision prescribed by section 344 or of any rule made thereunder;
(k)
any person for whom he has reasonable cause to believe a warrant of arrest has been issued.
What order do advocates use to charge clients? Who regulates it?
Advocates Remuneration Order
Regulated by the Law Society of Kenya + The Code of Conduct and Ethics
What document does the CJ use to regulate RO? Why was RO enacted?
The CJ uses Section 44 of the Advocates Act to regulate the Remuneration Order
It was enacted to prevent lawyers from charging inordinately high fees, as this may act as a bar to access to justice if people cannot afford to retain an Advocate
Your client is an aged blind woman who wants to sell land. She comes with a granddaughter who is blind as a representative. Which specific document will you draft?
Power of attorney: is a formal instrument by which one person empowers another to represent him or act on his behalf for certain purposes. It may be limited (and specific) and may refer to particular acts, or it may be unlimited and general in its form
So, in this situation, the grandmother may appoint a Power of Attorney for the limited person of entering into the land transaction
What is a petition?
A petition is a formal application made to the court in writing that requests action on a certain matter
It is distinguished from a plaint or statement of claim which seeks an order for damages and or performance from the opposing party
E.g. the petition currently brought by COTU as against the AG for the Finance Bill
Types of petitions?
Divorce petition
Guardianship petition
Constitutional petition
Election petition
Which position deals with managerial functions in an office?
Human Resources
Senior/Managing Partner
Functions of a managing partner?
Build an effective management team;
Deal with partner issues;
Deals with recruitment and retention;
Deal with risk management;
Participate in the decision making of insurance and benefits;
General oversight of the firm;
Determining strategic direction of the firm
Give the opening statement in rape case.
The initial address an Advocate makes to the court during the opening of a trial
An opening statement contains:
Description of the nature of the case ( facts;
Issues arising in the case;
The evidence sought to be presented;
The applicable law;
The witnesses who will be called; and
The remedy that is being sought
Functions:
It is a preview of the case ( gives the judge a birds’ eye view of the case to allow him to comprehend the facts, issues and evidence to be presented
It also helps reduce any confusion on the introduction and presentation of evidence; the court is better equipped to make sense of the evidence as is actually presented, and so eases the trial
It enables the court to highlight the relevant legal principles that are applicable to the case ( Advocates should not argue the case at this stage, your duty is just to make the court aware of the relevant legal issues
What do you call both male and female judges of the High Court rank?
My Lord ( Male judges
My Lady ( Female judges
Procedure of service of summons abroad?
For a commonwealth country: the summons are sealed by the High Court and served via a registered courier service that is approved by the court
For a non-commonwealth country: the summons are sealed by the High Court ( the sealed summons are sent to the Chief Justice who then writes a Request for Service of Summons Abroad ( this letter, together with the sealed summons, are sent to the Cabinet Secretary for Foreign Affairs ( the Cabinet Secretary then forwards these documents to the Ambassador of the country where the documents are to be sent ( the documents are then transmitted to the destination country and upon being received by the High Court, are to be stamped by the High Court to acknowledge receipt of the same
Restructuring of a company – what documents are needed?
What is restricting of a company? Restructuring is a significant modification made to the debt, operations, or structure of a company in order to strengthen the business
Reasons for restructuring:
Financial reasons, e.g. raising share capital
To reduce debt capital
To respond to demographic, technological, etc. changes
To respond to new market needs, e.g. capturing additional or new market share
To respond to CSR needs
Documents needed:
Board resolution, passed at either an AGM or other general meeting
This board resolution is then lodged with the Registrar of Companies
What is the difference between ordinary shares and preference shares?
Ordinary shares: ordinary shares have full participation in the decision making of the company and participation in the dividends
Preference shares: these shares have a first right to the profit of the company and you may or may not have full voting rights in the company
A company has a duty to give priority to preference shares because they have limited decision making rights and they are more expensive, while ordinary shares have little risk to the company (as you would not take an action that would adversely affect you as a shareholder)
Preference shares are more expensive and they put more obligation on the company than ordinary shares
Convertible preference shares: these can be converted into ordinary shares ( the advantage of subscribing to ordinary shares is being able to participate in the decision making of the company (and on the other hand, investors normally sell preference shares because it helps them raise capital but retain control)
Redeemable shares: preference shares that a company can redeem by paying the coupon value of the shares
Share buy-back schemes were only introduced by the Companies Act 2015
However, this ability to buy-back shares was suspended by the CMA in January 2019
Irredeemable shares: shares that a company cannot buy back
Minimum amount for professional indemnity?
Professional indemnity insurance, often referred to as professional liability insurance or PI insurance, covers legal costs and expenses incurred in your defence, as well as any damages or costs that may be awarded, if you are alleged to have provided inadequate advice, services or designs that cause your client to lose money
Professional Indemnity Insurance is a statutory requirement
Every Advocate shall purchase a policy of insurance, not less than Kshs. 1 million
In the case of those practicing in partnerships, the professional indemnity cover shall be purchased in common by the Partners
Procedure for registration of foreign companies in Kenya?
Registration of a branch of a foreign company in Kenya is done pursuant to Section 366 of the Companies Act Cap 486 of the Laws of Kenya.
The following documents required to be filed at the company’s registry, complete the necessary returns, and Registry with all other necessary documents:
A certified true copy of the Memorandum and Articles of Association (or constitution) of “the Company”, together with a certified true copy of Certificate of Incorporation. Both Certified as a true copy by a Notary Public and notarised from the Country of Origin.
The present Physical and Postal Address of “the Company”. The addresses are to be for both the Local Office and the Head Office
The full Names, Addresses, Nationalities and Occupations of each of the Directors and the Company Secretary
The full Name, Physical and Postal Address of someone in Kenya who is appointed as the representative upon whom documents/mail/process of the Company may be served/delivered.
The returns containing the information referred to in (b) to (d) above once prepared have to be signed by the person referred to in (d) above
Once this is done and Notarised copies of the documents referred in (a) above are available, the same will be lodged at the Companies Registry for registration of the Branch
It takes approximately 4 weeks to secure the Certificate of registration or in this regard “a Certificate of Compliance”
Sale of Goods – when and where does delivery take place?
Whether it is for the seller to transmit the goods to the buyer or for the buyer to take delivery thereof depends on the terms of the contract
Unless otherwise agreed, the place of delivery is the sellers place of business (if no place of business, his residence)
In the sale of specific goods which the parties know are in some other place, that other place is the place of delivery
If the goods are in the hands of a third party, delivery takes place when such party notifies the buyer that he holds goods on his behalf
If the seller is bound to transmit the goods, delivery by common carrier is prima facie complete when the goods are handed on to the carrier
What is stamp duty?
Stamp Duty is the tax placed on legal documents, usually in the transfer of assets or property
Stamp duty must be paid within 30 days from the date of execution of the documents
Stamp Duty is a pre requisite of registration; only upon confirmation of payment of stamp duty can the registrar proceed to register a transfer or charge
What is the effect of failing to register a registrable interest in land?
No passing of interest
You get an equitable interest in land as opposed to a legal interest
The document will act as a contract inter-partes, and the document will not pass an interest, and your remedy will be in contract or equity
You will be unable to further transact on the land, e.g. create a charge
What is the procedure of converting a Public Limited Company to a Private Limited Company?
Section 77: Pass a special resolution for conversion of the Public company to a private company. Ensure that no resolution has been passed or proposed for cancellation of the resolution seeking to convert. If there has been no cancellation resolution passed, then ensure that the memorandum and articles of the company have been changed to reflect the change of name and the change from public limited company to private limited company limited by shares or limited by guarantee
Section 81: register the resolution with the Registrar of Companies
6 characteristics of a sound human resource policy?
A sound HR policy should be:
Definite, clear and understood by everyone;
In writing;
Consistent with the overall philosophy and objectives of the organisation;
Reasonably stable but not rigid, i.e. it should be flexible;
Formulated with due regard for the interests of all the concerned parties – the employers, the employees and the public community;
Developed with the active participation and support from management and employees;
Consistent with public policy;
Strategic. i.e. take into consideration future
Explain the importance of delegation?
Delegation of authority is a process in which the authority and powers are divided and shared amongst the subordinates
This helps in reducing his workload so that a manager can work on important areas such as: planning, business analysis, etc.
Delegation also helps in breaking the monotony of the subordinates so that they can be more creative and efficient
Delegation helps the manager to attain communication skills, supervision and guidance, effective motivation and the leadership traits are flourished
Why do you think managers fear delegation?
Fear that the subordinate may perform better than the manager
Fear that your job may be taken, i.e. you are declared redundant
Fear that the work will not be done well
Fear that any mistakes will lead to a poor accountability chain
Suggest 5 non-financial alternatives of motivating employees to the Managing Director.
Affordable health care package
Allowing them to have shares in the company (e.g. through an ESOP)
Allowing flexi-working hours (e.g. some mothers may appreciate the opportunity to work from home)
Paid training
Leadership role
Recognition award
Parking
Promotions based on good performance
Suggest 5 guidelines for motivating employees and managers in any firm.
Encouraging leadership and management actions that promote empowerment of employees
Promoting transparent communication at regular intervals pertaining to factors that are important to employees
Treating your employees with respect
Encouraging employee participation or involvement in decisions pertaining to their job
Minimising the number of rules and policies thereby demonstrating trust towards employees
Promoting employee encouragement via rewards and recognition
Providing employee perks at regular intervals
Discuss 5 reasons to justify why it is necessary for a progressive law firm to conduct a performance appraisal exercise.
To monitor progress and performance ( helps you decide who to promote and who to dismiss
To determine the valuable players in an organisation
To set new goals and communicate your vision to the team
Assess training needs
To have an oversight of current projects
Suggest 5 ways of effective career development
Training in areas they are interested in
Career counselling
Career pathing
Inventory of skills
Transfers
Job posting
Promoting
Discuss the importance of having an organisational chart for your law firm
It is a chain of command
Is important so that employees know who to report to/who is their direct superior
This facilitates delegation of work and also helps with accountability
Everyone will be clear on that their role in the organisation is – this prevents duplication of work, or even the alternative where work is not done because someone assumed it was being done by another employee
Explain the meaning and merits of having a centralised authority system
A centralised authority system is where there is one major decision maker in an organisation. Decision making is done by a specific leader or location. E.g. all decisions for Barclays are made at the head office in Britain
The advantages of this are:
Clear chain of command
Focused vision (helpful for multinational organisations)
Quality control
Quick implementation of decisions (few people make the decision then communicate it to the others. It may however take longer to implement decisions when you have a central decision maker as different locations could require different things and the central office may not be the best person to make a decision on that location)
Explain the main functions of management
Controlling the activities of a firm
Planning the activities of a firm
Delegation
Why should you use different types of communication to improve working relations in your department/office (i.e. oral communication, meetings, written communication)? (
There are different types of communication ( verbal, non-verbal, written and visual
Verbal communication is efficient as you can convey the message and have the recipient respond immediately. This mode of communication may be faster, however, there is no record for oral communication (unless the call or meeting is recorded which is just complicated). It is therefore important to write down all verbal communication for the record, failure to which may result in uncertainty.
Written communication is an essential form of communication as it provides a record of information for reference. There are various types of written communication an organisation could adopt. They could write letters, emails, etc. Emails are inexpensive and accessible. It is therefore an efficient form of communication as opposed to writing letters through post office.
Discuss guidelines you can use to conduct effective meetings with members of your department? ( Discuss how to conduct effective meetings
Time management
Have an agenda
Listen
Participate
Evaluate the meeting
Advantages of email?
Faster communication with clients
Your communications will be more secure, e.g. protected by a password
Less costs – no printing paper
Easy record keeping
CSR/good for the environment
Describe 5 recruitment methods that a Firm may employ?
Referrals
Use of former employees
Advertise job positions/job openings
Head hunting
Public/private recruitment agencies
Through educational institutions
What are the purpose and objectives of induction/orientation to a law firm?
To help the employee familiarise themselves with the environment
To help the new employees to adapt to the work environment
To understand the culture/values of the organisation
To introduce them to existing staff and to their direct supervisor
5 symptoms that indicate that you have out grown your business space?
When the staff do not have space to sit comfortably
When you are using designated spaces for other purposes, e.g. a filing room is being used to house an employee
No space for files
Overcrowded reception
No parking for clients
Discuss 5 health and safety measures that are important to a law firm.
Adequate lighting in the office
Access to adequate and clean water/sanitation
Adequate ventilation
No sharp edges, slippery floors, etc.
An exit in case of fire
Comfortable furniture to prevent back aches, etc.
Lactation rooms
Explain 2 characteristics of a good filing system
Easy identification/easy retrieval of files
Logical organisation of files, e.g. by alphabetical order, in groups with the matter codes, etc.
Documents and files should be placed in a secure place, e.g. free from fire, moist conditions, unwanted eyes, etc.
Always have a backup, i.e. ensure you have both hard and soft copies of your files, with access limited to people within the office
Discuss 5 factors that would influence the choice of your filing system
Space, e.g. where will you keep big cabinets?
Cost – what is your budget? Electronic system may be more expensive
Number of files and documents
Retention period (duration required for maintenance)
Frequency of reference
Explain 3 methods you could use to classify documents in your law firm?
Numbering/numerically
Subject matter
Initials of names
By whether it falls into the litigation/commercial/advisory department
Discuss 5 operating functions of a HR manager in a law firm.
Employment (recruitment, selection, placement,)
Training and Development
Compensation i.e. remuneration
Keep employees’ records
Maintenance of personnel in the law firm (working conditions and welfare)
Motivation
Client care, e.g. setting up lunch meetings, client cocktails, events, etc.
Discuss 5 managerial functions of a HR manager in a law firm.
Planning
Organising – grouping people into functions and coordinating of activities
Directing – guide and motivate people to accomplish programs or work
Controlling – regulation of activities though evaluation of performance
Recruitment
Critical areas in a law firm which require policies.
Sexual harassment policies
Employment policies (recruitment, management)
Promotion policies
Social media use/internet use policies
Confidentiality policies
Dispute resolution policy
Consequences an organisation is likely to suffer in case of employee separation (either through termination, resignation, redundancy, retirement or death).
Lack of a pool of talent
Financial loss, e.g. if you are going through a process of redundancy
Reduced productivity
You have to recruit more employees which is time consuming and expensive
Provide analysis of 5 factors that may prevent a HR team from effectively filing in job opportunities? ( Challenges in recruiting the best candidates.
Supply and demand issue (lack of people with the qualifications)
Market competition
Company’s pay package
Image of the organisation
Location of the organisation
5 reasons why an organising requires a recruitment and selection policy.
To ensure you get the best persons on board
Gives the recruiters an idea of the values that are being sought/the values that are to be practiced by those recruiting, e.g. equal opportunity to everyone
It ensures transparency in the hiring process
Provides consistency
Shows credibility of the organisation (gives candidate confidence)
Define sexual harassment and explain 3 forms of the same that an employer should be aware of.
Direct sexual harassment, e.g. inappropriate touching of an employee
Sexual inuendo (e.g. watching pornography, speaking in a sexual manner)
Coercion to engage in sexual activity
Way to create an environment free of sexual harassment?
Creating awareness
Having a sexual harassment policy
Having sealed employee appraisals
Having an effective complaint system in place
Restricting access to pornographic websites in the workplace
Why should a modern law firm use ICT?
Efficiency/effectiveness
Faster communication
Creates security, i.e. harder to lose documents which are in soft
Helps you minimise costs, e.g. you can monitor who is printing what
Effectively bill your clients, e.g. you know how much time and resources were spent on each file
Critically analyse outsourcing strategies in a law firm (advantages and disadvantages of out sourcing).
Outsourcing is the business practice of hiring a party outside a company to perform services and create goods that traditionally were performed in-house by the company's own employees and staff – traditionally used for non-essential tasks but now things are changing, e.g. initially used for cleaning services, and now companies outsource entire HR departments
Advantages – improved focus on core activities, increased efficiency, controlled costs, increased access to facilities, competitive advantage
Disadvantages – late service delivery, risk of losing control, risk of breach of confidentiality and security, risk quality control
6 recommendations in a training on management development.
Management development is the development of the employees personal and organisational skills as managers
Embrace delegation
Encourage use of technology
Outline goals and strategy
Mangers should practise praise and rewarding
Effective communication
Lead by example
Main purpose of evaluating a management development program.
To know whether it has achieved its objectives
3 main objectives of effective downward communication in a law firm. ( What are the objectives of clear communication?
Confirm instructions
Delegate work
Imparting knowledge
Challenges faced by Advocates in the communication process?
Confidentiality of communication – how do you ensure your communication respects confidentiality? Who do you tell what?
When work is urgent, an Advocate may use verbal communication instead of written and this doesn’t leave a traceable record for future reference
Things are constantly changing in the litigation areas, e.g. strategy changes after almost every court appearance, which may lead a client to get confused if they do not understand legal jargon and how the law works
Sometimes an Advocate may be hindered from taking action on behalf of and for the benefit of their client because of a lack of written instructions
An Advocate is surrounded by numerous support staff (especially in big organisations) and sometimes it makes it hard to work efficiently with these support staff if confidentiality of client communication comes into play
2 ways in which the HR department contributes towards the achievement of the firm’s goals?
Managing risks i.e. security
Training thus enhancing skills and keeping lawyers updated
Recruiting the best employees available in the market
5 justifications why job analysis is useful in almost every phase of employee relations.
Job analysis helps in determining what kind of person is required to perform a job
It shows performance analysis, i.e. it is a good check on whether the goals and objectives of the job have been met
It is used to access the training needs of employees
It determines compensation
It helps in designing the job to enhance output and satisfaction
Principles of good record keeping to guide the operations of a law firm.
Classify
Secure
Store
Retain
Explain the concept of a record lifecycle and the factors to consider in retaining records in a firm.
Records which are no longer needed are disposed (this is the last stage of the record lifecycle)
Factors to consider:
Statutory requirements, e.g. you cannot dispose a will of a client, contracts of employment of existing employees/employees that left in bad circumstances, title deeds, etc.
When needed for future reference
If a matter may possibly be appealed then you need all lower court records
Capacity of duplicating the documents, i.e. can you make soft copies of the documents and store them online?
What are the different types of grants in probate and administration, and how do you apply for each?
Grant of Probate: this is in a testate succession, and the Executor applies for a grant to administer the estate of the deceased (unless he declines to do so)
Judge issues orders to advertise matter in Kenya Gazette
If no objections raised for 30 days, grant of probate is issued with a copy of the will attached (P&A 45)
Period of 6 months to confirm grant + accounts to be submitted 6 months after confirmation of grant
Grant of Letters of Administration: same process as above, but is when someone is intestate
Priority is given to a survivor in order of consanguinity ( i.e. wife, husband, children, parents etc.
Letter sought where there is no will, certain portions of the will have been invalidated in prior proceedings or some of the deceased’s property is not covered by the will
Grant to the Public Trustee: where someone dies without known beneficiaries/dependants, or where they fail to agree on who a personal representative will be, the grant will be issued to the Public Trustee
The Public Trustee is an office in the office of the AG to deal with succession matters
Alternatively, if within 6 months of the death no one takes up representation of the deceased, the court can appoint the public trustee on application to administer the estate, including rendering the properties of the estate Bona Vacantia
Is a limit to the amount that can be administered ( Kshs. 3,000,000
Limited Grants:
GRANT
PROVISION
REASON
GRANTS LIMITED IN TIME ( 5th Schedule, Paragraphs 11 & 12
Ad Colligenda Bona
S. 67 LSA + Rule 36 & 37 Probate and Administration Rules
Estate constitutes perishable or precarious goods
Ad Litem
Fifth Schedule, Paragraph 15
Estate of deceased has been sued or contemplates suing ( is necessary when the estate’s interests are to be secured
Pendete Lite
Fifth Schedule, Paragraph 10 & 14
During the period in which the court is determining the validity of the will, this grant may be issued to enable the estate to continue in other litigation
De Bonis non Administratis
Fifth Schedule, Paragraph 20
This grant extends the period of administration of the estate where the Executor needs more time
Cessante Grant
Fifth Schedule, Paragraph 21
This grant is used when you would like to extend a limited grant that has expired
Temporary Grant
S. 49 LSA
Limited for purposes of moving the High Court (i.e. is granted by the Magistrate’s Court) or where there is an urgency and the goods are going to expire
GRANTS LIMITED IN PROPERTY ( 5th Schedule, Paragraphs 13 – 15
I.e. a limited grant to a specific property can be issued pending application for a full grant
GRANTS LIMITED IN PURPOSE
Durante Etate Minore
Fifth Schedule, Paragraph 7 & 8
This application is made by a minor’s ‘Next Friend’ for the limited purpose of administering the estate on behalf of the minor
Durante Absentia
Fifth Schedule, Paragraphs 4 – 6
Made by a person outside the jurisdiction of the court to allow another person to step in as administrator pending his return
Will is unavailable
Where will is misplaced, lost or otherwise unavailable, a grant is issued pending the original being produced in court
Behalf of person of unsound mind
Fifth Schedule, Paragraph 9
Can be made by a Next Friend
Temporary Grant
S. 49
Limited purpose and limited time
Special Grant
Legal Notice No. 39 of 2002
Jurisdiction of court was extended to include grants not contemplated by the schedule, but which would need to be made in special circumstances/under extreme urgency to secure the estate
Foreign grants: cannot be used/are not applicable to the administration of real property in Kenya ( only Kenyan courts have jurisdiction to administer real property in Kenya
You cannot deal with a deceased person’s property until you are given a grant ( this can either be a limited grant or a confirmed grant (a confirmed grant may be hard to obtain in urgent situations because the procedure is relatively long)
Who is a personal representative and what are the duties of a personal representative?
A personal representative or legal personal representative is a person appointed by a court to administer the estate of another person (i.e. the deceased)
The personal representative is either an executor if the deceased person left a will or an administrator if the deceased person died intestate
Powers of the personal representative:
To enforce by suit any causes of action by or against the estate
To sell or otherwise account for any part of the assets vested in them
To agree to the vesting of a specific legacy
Duties of the personal representative:
To administer the estate of the deceased
To ensure that all legal suits are promptly prosecuted/defended on behalf of the deceased’s estate
To ensure all beneficiaries are promptly contacted and their share of the estate is distributed them
Within 6 months of the confirmation of grant, to produce a full inventory of the assets and liabilities of the estate
To pay out all liabilities of the estate
What holds preference – the debts or legacies of an estate? What provision of the law supports this?
Debts of an estate hold preference to the legacies (a legacy is a testamentary gift)
S. 86: Debts to be paid before legacies ( Debts of every description enforceable at law and owed by or out of an estate shall be paid before any legacy
S. 87: Personal representatives not bound to pay legacies without indemnity ( If an estate is subject to any contingent liabilities, a personal representative shall not be bound to pay any legacy without a sufficient indemnity to meet the liabilities whenever they may become due
What does ‘abate’ mean under the LSA?
Section 1, 6th Schedule LSA
If the assets, after payment of debts, necessary expenses, and specific legacies, are not sufficient to pay all the general legacies in full, the latter shall abate or be diminished in equal proportion, and the personal representative has no right to pay one legatee in preference to another nor to retain any money on account of legacy to himself or to any person for whom he is a trustee
Which court has jurisdiction to deal with probate matters and to administer grants?
This depends on the monetary value of the estate of the deceased
Is determined using Section 7(1) of the Magistrate’s Courts Act:
Chief Magistrate: 20, 000, 000
Senior Principal Magistrate: 15, 000, 000
Principal Magistrate: 10, 000, 000
Senior Resident Magistrate: 7, 000, 000
Resident Magistrate: 5, 000, 000
If the estate is over Kshs. 20,000, 000, then the documents and application are filed in the High Court
P&A Form 5: you disclose all the assets of the deceased and value them, to enable you to determine the pecuniary limits of the estate and determine where the file the suit/application for grant
What is the process for applying for grant of letters of administration?
Part III P&A Rules 1980 + S. 51 LSA
Every application for grant of representation shall be made in the prescribed form, signed by the applicant and witnessed in the prescribed manner
Application should include: full name of deceased, date and place of death, last known residence, relationship of applicant to deceased, whether deceased left a will, any executors appointed by any valid will, the names and addresses of all surviving spouses/children/parents of the deceased, a full inventory of all the assets and liabilities of the deceased, and such further matters as may be prescribed
Application is made by way of petition (Rule 7) and supported by an Affidavit (Form 5)
Any person may apply grant of letters of administration of an intestate deceased; however, priority is given to close family members (the court retains this discretion) ( surviving spouse, other beneficiaries entitled on intestacy with priority according to their respective beneficial interest, the public trustee and creditors
Note must be issued to other persons with an entitlement over the estate (Rule 26(1))
What is a caveat and what is the procedure of applying for the same?
Caveat: a notice filed with the DR of the relevant court to be informed when an application is made for grant of letters of probate/administration/representation with regard to a particular estate ( Governed by Rule 15 of the P&A Rules
Purpose: if the caveator is aggrieved by the application by virtue of the fact that they believe that they have an interest in the estate, then the caveat gives the caveator the opportunity to object to the application within 30 days
Procedure:
Fill out Form 28 in the appropriate registry
Pay the prescribed fee
Be granted a confirmation of the caveat being lodged
If an application is thereafter lodged after the lodging of the caveat, the DR will send you a notification of the application (Form 112 P&A Rules)
Is there a time limit within which a grant must be obtained?
No limited, however, S. 45 LSA contains penalties for dealing with an estate without grant of letter of probate or administration ( the same would amount to inter-meddling
What are the grounds for objecting to a grant of letters of administration, and what is the procedure for the same?
Grounds for objecting to grant of letters of administration:
The objector is entitled to the grant of representation, e.g. they hold higher priority in terms of consanguinity
The objector is entitled to an interest in the estate
Suitability or competence of the proposed administrator (who has applied for the grant)
Note: an objection can only be made before a grant is confirmed. After the grant is confirmed, the objector may only apply for revocation of the grant
The procedure for objecting to a grant of letters of administration:
The objector must file a Notice of Objection through Form 76 or 77 P&A Rules in triplicate ( state full name, address for service, relationship to deceased and grounds for the objection
Together with the Notice of Objection, the objector should file an answer to the petition and a cross-application for why the objector should be granted letters of administration instead
The matter will then be set down for hearing of the petition, answer and cross-application, whereby the court will decide who should be granted letters of administration
What are the grounds for revocation of a grant?
Defective proceedings: defective proceedings would invalidate grant if defects are of a substantive nature, i.e. go to root of the question before court (not applied much after 2010 constitution)
False statement or wilful concealment of material fact: all material facts are to be set out candidly
Grant has become inoperative: e.g. property subject of grant was sold before death of deceased
Lack of diligence in administration: under S. 76, if an administrator takes unduly long in applying for confirmation of grant after its issuance, an interested person may make an application for its revocation
What is a protest to the confirmation of grants, and what is the procedure for the same?
Rule 40(5) & 40(6) of the Probate and Administration Rules
What is a protest? ( Any person any who is opposed to the proposed distribution may file an affidavit of protest against the confirmation setting out the grounds of his objection
How do you file a protest?
Upon the filing of the affidavit in protest by the protestor or any other person who is opposed to the proposed distribution, the matter should proceed for the hearing of the application for confirmation during which the protestor’s protest should be heard
The persons heard include the applicant seeking the confirmation of grant, the protestor and any other person interested
People who have not been provided for or feel that they have been inadequately provided for, fall under this section
In what situations may a court confirm a grant before the lapse of 6 months?
Rule 70(3) P&A Rules 1980:
There is no dependant of the deceased as defined by S. 29;
The only dependants of the deceased are of full age and consent to the application;
It would be expedient on all the circumstances of the case
When can a grant be revoked?
It has governed by section 76 LSA
The proceedings to obtain the grant were defective in substance
The grant was obtained fraudulently – either by making false statements or concealment of a material fact
The grant was obtained by means of untrue allegation of a fact (even if inadvertent or made in ignorance)
The person to whom the grant was made:
Has failed to confirm the grant within one year, or longer
Has failed to proceed with diligent administration of the estate
Has failed to produce inventory or account of administration
The grant has become useless and inoperative due to the circumstances
Who is a citor?
Rule 21 P&A Rules
Citation to accept or refuse a grant: This is used where a person (whether in intestacy or testate succession), who has an entitlement to a grant prior to that of the citor, delays or declines to take a grant, but at the same time fails to renounce his or her right to a grant so as to enable persons with inferior right to take out a grant in his or her place. He or she may be cited to accept or refuse the grant. Any applicant may apply for the grant. He does this by drawing a citation signed by the Registrar and supported by an affidavit
Procedure
Service of the citation is done on the citor ( The method of service is as directed by the Registrar
It requires that the person cited to appear within 15 days of service. The citor is to be served with a copy of the form with the seal
If the time given to the citee to appear has expired and the person cited has not entered appearance the citor may petition the court that the grant be made to him or her
Alternatively, summons to be taken out or notices to persons cited be made or orders requiring such persons to take out the grant or the grant be taken out by others.
What is the difference between a caveator and a citor?
A caveator is someone who applies to the court to be notified of any application for grant of letters of probate or administration on grounds that he/she has an interest in the estate and may want to object to the same
A citor is someone who applies to the court because there has been a delay in confirmation of the grant of letters of administration or probate, and being second in priority, this citor may want to be granted representation due to the undue delay
Surrogacy debate in Kenya?
What determines prima facie that a child is the child of the deceased is the child’s birth certificate – do you then give the birth certificate to the birth mother or to the mother per se?
The only way to protect yourself in a surrogacy is to have a solid contract (with the person carrying your baby)
What are the following terminologies in criminal litigation?
Complaint: a formal legal document that sets out basic facts and legal reasons (i.e. the cause of action) that the filing party believes are sufficient to support a claim against another person, entity or entities. If the set of facts that comprise the complaint are found within the law, then the complaint can be put forward to the relevant authorities (be it the police or a magistrate)
Occurrence book: this is a book maintained by the OCS of every police station in which complaints are recorded ( it contains: complaints recorded, charges preferred, names of persons arrested, offences with which they are charged, etc.
Charge: a formal written accusation for an offence. It is drawn by the magistrate or a police officer and signed as required by the law
Particulars: words which will describe the ingredients of the offence and the offender. E.g. it will describe the property or goods which are the subject matter of the offence
Charge sheet: An official document on which the police officer records the details of the crime/crimes a person is accused of. It has 3 elements:
Commencement: basic details, e.g. police case number, OB number, court file number, surname/father’s name, age, address, etc.
Statement of offence: it is a concise statement that outlines the offence committed and the statute contravened ( statement of law, founded on specific statutory provisions
Particulars of offence: not contain any evidence and should be drafted in a way that the accused can understand the charges against him/her. It is important to ensure that ordinary language is used so as to indicate with reasonable clarity the place, time, thing, act or omission referred to
Count: the court must ensure the charge sheet does not lay too many counts such as to embarrass or prejudice the accused ( one charge sheet should not contain more than 12 counts
What is duplicity?
Duplicity of charges is the joining of two or more offences 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 or having committed two or more separate offences
Duplicity can be avoided where a statute creates an offence in the alternative, e.g. Section 86 of the Traffic Act
E.g. A beat up B causing B to break her ribs, and then proceeded to unlawfully penetrate B’s genital organs without her consent. This is both rape and assault/battery, and so the counts should be 2 in number and reflect 2 different charges
What is misjoinder of parties?
Uniting two persons in the same charge [check]
What is joinder of counts?
What are the consequences of misjoinder?
What is the Reception Clause?
Most judges and Magistrates at the time of Colonialism were foreigners from the UK
Because these Judges and Magistrates would speak English, most court proceedings would also be in English
What is a professional undertaking?
Halsbury’s Laws of England:
It is an unequivocal declaration of intention;
Addressed to someone;
Who reasonably places reliance on it;
Made by a solicitor;
In the course of his practice;
Either personally, or by a member of staff of the solicitor “as a solicitor”;
Under which the solicitor becomes personally liable
LSK Code of Conduct and Ethics for Advocates 2016: a formal promise whose effect is to make the person giving it responsible for the fulfilment of the obligation in respect to which it is given. It is both a professional and a legal obligation. There is an expectation that an honourable person will honour their word
Constitutionality and effect of new land laws.
Effect of new land laws:
To have one registration system and one land registry
Titles to be called Certificates of Lease or Certificates of Title
3 categories of land have been created: public, private and community
New land laws have been introduced dealing with ownership of land by non-Kenyan citizens ( they can’t get freehold titles, they can only have leasehold
Consent of spouse is needed relating to certain transactions
Introduction of the Environmental and Land Court
Changes to laws on leases and charges
The establishment of the National Land Commission
Constitutionality:
Access to justice and FAA is improved
More clarity in the law
Procedure for non-Kenyan citizen wanting to buy land in Kenya.
Can only have a leasehold interest for 99 years and below
Under the Land Control Act, foreigners or firms wholly or partially owned by foreign investors cannot acquire agricultural land in the country
What are the duties of a purchasers Advocate in a conveyancing transaction?
Investigation
Obtain copy of the title
Check for encumbrances on the title
Conduct pre-registration searches ( Land’s Registry, companies registry, Ndung’u report, Probate Registry, etc.
Prepare a letter of offer/expression of interest
Check the Sale Agreement (normally drawn up by the Vendor’s Advocate) to ensure your client’s interests are protected
Draw up a professional undertaking for payment of purchase price in exchange of completion documents
Ensuring payment of stamp duty + ensuring document is stamped after the payment
Ensuring registration of the transfer of interest in favour of your client
What are the duties of the vendors Advocate in a conveyancing transaction?
Prepare Sale Agreement
Prepare Title Documents
Approves transfer/conveyancing
Procures execution of transfer or conveyance
Attests execution of a transfer or conveyance
Receives and accounts for proceeds of sale to his client
What are the duties of an Advocate acting on behalf of a Financier, i.e. a Bank?
Prepare professional undertaking for release of funds upon registration of charge in favour of the Bank
Prepare charge documents in favour of the Bank
What are the completion documents needed in a conveyancing transaction?
The Original Certificate of Title
The ID, PIN Certificate, Passport photographs of both the Purchaser and Vendor
Certificate of Incorporation + a board resolution authorising the transaction if either party is a company
Rates and Rent Clearance
Consent to transfer land
A duly executed transfer instrument
Capital Gains payment confirmation slip
Application for government valuation (for purposes of payment of S.D.)
For agricultural land: you need a Land control Board Consent
What is the difference between joint tenancy and tenancy in common?
Joint tenancy: this is a form of ownership of property whereby the joint tenants have equal and undivided ownership. This creates a right of survivorship so that if one of the joint tenants dies, the remainder of the property is transferred to the survivor
Tenancy in common: this is a form of ownership where each tenant has an individual, divisible interest in the property which may be alienated, transferred, etc. There is no right of survivorship as the interest in the property may be transferred by will, deed, conveyance, etc.
What are requisitions?
The purpose of Requisitions on Title is for the Buyer's Conveyancing Solicitor or Conveyancer to raise any queries relating to the title supplied by the Seller, which they have found to be unsatisfactory
On a practical level, requisitions on title are also used to deal with the administrative completion arrangements, e.g. may help in negotiating
What are the different kinds of pleas?
Guilty
Not guilty
Autrefois convict – where the accused was charged, convicted and has served the sentence for similar charges based on the same facts
Autrefois acquit – accused was charged, tried and acquitted of similar charges based on the same facts
Pardon
Immunity (presidential immunity, judicial immunity, diplomatic immunity)
What are insanity proceedings?
Insanity is a disease of the mind rendering one incapable of legal capacity, thus exempting the person from civil or criminal liability
It arises in two situations:
As a defence ( person was insane at the time of committing the offence
Procedural insanity ( declared insane when the proceedings are ongoing and so the person is incapable of understanding the charge or preparing a defence
If an individual is declared insane, he/she will be committed to a mental institution. However, this is not a bar for future proceedings, i.e. if the patient recovers, proceedings may be commenced against him/her from scratch
What are the elements of a crime?
Actus reus: the prohibited act or omission ( need not be proven for offences of vicarious liability
Mens rea: the intention to commit a crime, i.e. act was done voluntarily and with foresight of the consequences ( need not be proven for offences under the Food, Drugs or Chemical Substances Act
What is the difference between murder and manslaughter?
For murder, the accused is proved to have malice aforethought
The requirement of mens rea is not necessary in a charge of manslaughter
Difference between a decree and an order?
A decree is extracted from a final judgement
An order is extracted from an interim application
Difference between judgement and sentencing?
Judgement: the adjudication by the court on whether the defendant is guilty or not guilty
Sentencing: procedure at which a court of competent jurisdiction makes an order on the specific penalty to be meted out to the criminal after he is found guilty
What is the procedure for plea taking?
The charge is read to the accused in a language he understands (get an expert in the language for translation if necessary)
The accused takes a plea
If he pleads not guilty, the matter proceeds to trial
If he pleads guilty, the facts of the offence are read to him. He is then given a chance to explain, vary or deny the facts
If he denies the facts, then a new plea is taken. If he agrees with the facts constituting the charge, then under S. 348 he is barred from appealing on the conviction
What is the trial process?
Complaint ( Arrest ( Charge ( Plea ( Trial ( Judgement ( Sentence
Name different kinds of Tribunals in Kenya.
The National Environment Tribunal
Sports Disputes Tribunal
Cooperative Tribunal
Auctioneers Licensing Board
Water Appeals Board
HIV and AIDS Tribunal
Public Private Partnership Petition Committee
Rent Restriction Tribunal
Business Premises Rent Tribunal
Competition Tribunal
Standards Tribunal
Transport Licensing Appeals Board
Industrial Property Tribunal
Energy Tribunal
Communication and Multimedia Appeals Tribunal
National Civil Aviation Administrative Review Tribunal
Legal Education Appeals Board Tribunal
Micro and Small Enterprises Tribunal
Education Appeals Tribunal
State Corporations Appeals Tribunal
Energy Regulatory Commission Tribunal
What are the exceptions to the rule against hearsay?
Where the witness or business documents relied on are unavailable
Statements of witnesses who do not testify due to fear
Public information
Reputation as to character
Reputation as to family tradition
Res gestae (reported words are so closely connected as to form part of the transaction)
Confessions
Admissions by agents (situations in which a solicitor has been authorised by a defendant to make an admission on his behalf)
Common enterprise (where a number of persons are engaged in a common enterprise, then the statement of any of those persons is admissible against the others if uttered in furtherance of that common enterprise)
Expert evidence
Relationship between Res Judicata and Estoppel.
Res Judicata is where the same issues between the same parties has already been adjudicated upon and concluded with finality
Estoppel is where you are at law barred from changing your position because another party has placed reliance on it to their detriment
Res Judicata is a form of estoppel because parties are estopped from re-opening the same matter as the party in whose favour the judgement was rendered is enjoying the fruits of judgement after having placed reliance on it
What are Garnishee Proceedings?
Order 23 CPR
These are proceedings instituted by a decree holder against a third-party holding property on behalf of the judgement debtor, i.e. where the property of the judgement debtor is in the hands of a third party
The property over which the order is sought must be specific and recognised in the order (cannot be general, e.g. ‘over all of [x]’s property’)
What are interpleader proceedings?
Arises when a person holding property applies to court to determine who of the two adverse parties claiming the property should get the property
Must prove: no interest in the claim (save for expenses), no collusion with either party, and ability to deal with the property how the court directs
What is the procedure and purpose of cross examination?
Procedure: you may ask leading questions or question a witness on previous testimony of the witness
Purpose 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 are the contents of a demand letter?
Name and address of the Advocate
Facts of the case
Act/breach committed
Demand
Damages sought
Threat/consequences of not heading to the demand
What are the defences in defamation?
The statement is true
The statement constituted fair comments on a matter of public interest
The statement is covered by absolute privilege, e.g. parliamentary proceedings, judicial proceedings, statements between Advocates and Clients, etc.
The statement is covered by qualified privilege, e.g. statements made in the performance of a duty
The statement has been followed by an offer of amends
The plaintiff consents to the publication of the statement
Difference between set-off and counterclaim?
Set-off: a counterclaim made by a defendant against a plaintiff for reduction or discharge of a debt by reason of an independent debt owed by the plaintiff to the defendant ( may be describes as a shield which operates as a defence to the plaintiff’s claim
Counterclaim: a legal case that a person or organisation starts against someone who has brought a case against them ( it is both a shield and a sword; it is basically a cross-action and is in fact usually treated as a separate suit even for billing purposes by Advocates
What is Trespass?
It is the unlawful interference with one’s body or property without consent
Trespass to person includes: assault, threat of GBH, battery, actual infliction of harm, false imprisonment, unlawful restriction of a persons’ liberty, etc.
Trespass to land:
There must be interference;
The interference must occur on the possessor’s land or property;
The interference must be voluntarily/deliberate/intentional;
The plaintiff must possess the land; and
The act that caused the trespass must be direct
Defences to trespass in land: necessity, lawful authority and licence
When can a claim for summary judgement be made?
Relief sought by Plaintiff is for a liquidated claim; or
The claim is for recovery of land with or without a claim for rent and profits
Can only be given where summons are issued, and the defendant has entered appearance ( it must be that no valid defence has been filed or no defence has been filed at all
What is an interlocutory judgement?
This is a court judgement made before the end of a trial. It is passed during the pendency of a suit or proceeding, and does not determine finally the substance, rights and liabilities of the parties in respect of the subject matter of the main suit
E.g. where a summary judgement is made in an unliquidated claim, then the matter may proceed to full hearing so that damages may be examined
What are mitigating circumstances?
These are facts that may be put forward by the defendant to either reduce or negate the defendant’s liability
E.g. in cases of slip and fall, if you put a sign up saying that persons should watch out for the slippery floor then you may be able to mitigate losses/damages owed to a person who was injured because he/she slipped and fell
What to consider before instituting a civil suit?
Whether you have a valid cause of action
What court/tribunal to institute that cause of action in
Whether the claim is worth litigating, i.e. would you rather use ADR/settle the claim
Who are the defendants in your suit, i.e. are they bodies/persons capable of being sued?
What exact relief you are seeking
Whether the relief sought is proportionate to the time and resources you are likely to expend in prosecuting the claim
How is a JR suit commenced?
In the High Court
First you seek leave to initiate the JR: By way of Chamber Summons, ex-parte ( C.S. is accompanied by a statement setting out the remedies sought and an Affidavit verifying the statement
Once leave is granted: The JR is then instituted by way of Notice of Motion 21 days after the leave to proceed with the JR is granted ( The hearing date is then set for 8 days after the Notice of Motion is filed ( Hearing is restricted to grounds and reliefs set out in the statement accompanying the application for leave
What are the ways of terminating proceedings?
Striking out of pleadings
Summary Judgement
Judgement in Default
Final Judgement & Ruling
How do you effect service where the defendant cannot be found?
Affix the copy on the gate of the last place of residence/the gate of the last known place of business
Affix the copy at some conspicuous place in the court house
Service by substitution (advertisement in the newspaper, by leave of the court)
Service by registered post to the last known address
All forms of service must be followed with an Affidavit of Service by a Registered Court Process Server
How do you serve the following people with summons?
Public officer/officer of a local authority: If it appears to the court that it will be convenient, the summons may be sent to the head of the office in which the defendant is employed, together with a copy to be retained by the defendant himself
Soldier: the summons are sent to the soldier’s commanding officer, together with a copy to be retained by the defendant
On the Government: through the Attorney General (can be served personally or summons can be delivered to the office that he occupies)
A company/corporate: is common practice to serve the Principal Officer/Secretary/Director of the company, normally at the business premises of the company
What are third party proceedings?
Covered by order 1, Rule 15 of the Civil Procedure Rules ( instituted by way of a Chamber Summons + an Affidavit
Must be filed 14 days after the close of the proceedings
This is a situation where a defendant blames another party (i.e. a third party) for the proceedings instituted as against it/orders issued as against it
The defendant is usually seeking indemnification or contribution from the third party from the adverse orders issued against it
It is possible for a third party to dispute the liability of the defendant in the main suit (even though the third party is not a defendant in the main suit)
When can a suit be settled and in what ways?
Any civil proceedings may be settled, in the following manner:
Plaintiff may discontinue suit
Plaintiff may withdraw part of his claim
Defendant may submit to judgement
Defendant may make payment into court in satisfaction of Plaintiff’s claim
Defendant may compromise with plaintiff on certain terms (most common)
A possible form of settlement in criminal proceedings may be entering in to a plea bargain
What is a judgement?
It is a final decision of the court that is binding on both parties, based on an application of the law to the facts of the dispute
The essentials of a judgement are: concise statement of facts; issues for determination; decision on each issue; and reasons for each decision
When can a court strike out pleadings?
Order 15, Rule 2 CPR ( Application to be made by Notice of Motion by party seeking to have pleadings struck out
The pleadings do not disclose a reasonable cause of action or defence
The pleadings are scandalous, frivolous and vexatious
The pleadings may prejudice, embarrass or delay fair trial
The pleadings are an abuse of the process of the court
What is the relationship between criminal law and probate?
A person who murders another cannot benefit from the property of the person he has murdered, i.e. a beneficiary will be treated as though he/she died before the deceased (S. 96 LSA)
Intermeddling with the property of the deceased is a crime (S. 45 LSA)
Who is an Executor?
A person appointed by the Testator under the will to administer the estate upon his/her death
What is matrimonial property?
Matrimonial property: the matrimonial home or homes, household goods and effects in the matrimonial home or homes, any other movable and immovable property jointly owned and acquired during the subsistence of the marriage (Section 12 Matrimonial Property Act)
Ownership of matrimonial property is determined by the financial contribution of each party and is divided as such during a divorce
Contribution includes monetary and non-monetary, e.g. domestic work and management of the matrimonial home, child care, companionship, management of the family business and property, and farm work
What are the rights of a surviving spouse in matrimonial home?
Section 28 LRA ( spouse has an overriding interest in the property
Section 93 LRA ( law presumes house is owned jointly by a joint investment, thus the spouse is protected under joint tenancy
In either situation, a surviving spouse’s interest in a matrimonial home is secure
How to deal with the estate of an intestate person?
Section 35: where deceased leaves surviving spouse and children ( spouse is entitled to personal and household effects of the deceased absolutely with a life interest over the whole residue of the net intestate estate (life interest is held on trust for the children)
Section 36: where deceased leaves surviving spouse but no children (
Surviving spouse entitled to personal and household effects absolutely;
The first 10 thousand out of the residue of the net estate, or 20% of the residue of the net estate, whichever is greater
A life interest in the whole of the reminder of the estate
Section 38: where deceased leaves surviving child/children but no spouse ( net estate devolves upon the child or children
Section 39: where deceased leaves no surviving spouse or children ( net estate devolves upon the kindred or blood relatives of the deceased following order of consanguinity
Section 40: where deceased was a polygamist (
Personal and household effects are divided among houses according to number of children
The estate is divided in accordance to the number of children in each house
What are the elements of an oral will?
S. 8 – will may be written or oral
S. 9 – oral will is valid if made in the presence of two or more competent witnesses and the Testator dies within 3 months of making the oral will
Difference between donatio mortis causa and gift inter vivos?
Donatio mortis causa: this is a gift in contemplation of death, which takes effect after the donor passes away. Elements of a gift in contemplation of death:
The donor must contemplate death
The gift must be movable property
There must be delivery of the gift
There must be an intention for the gift to pass only upon death
Gift cannot pass if death is caused by suicide or if the donor asks for the gift back
Gifts inter vivos: transfer of the property becomes operative during the lifetime of the donor
How is a will revoked?
By destruction, i.e. tearing, burning or otherwise destroying the will
Be writing another will or codicil
Where the will is lost without a trace
By marriage, unless the same was contemplated
How do you relate revocation of destruction to the law of evidence?
Where the will is contested and it has been destroyed, the rules of evidence demand that for the revocation to be valid, two things must be proved:
Testator had the intention to actually destroy the will; and
There was an intention that the destruction would be a revocation
What is the ejusdem generis rule?
This is a rule of interpretation that where a class of things is followed by general wording that is not itself expansive, the general wording is usually restricted things of the same type as the listed items.
What are the rules of statutory interpretation?
Literal approach
Golden rule
Mischief rule
Purposive approach
Who is a 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 (and for whom no family members/deceased can be traced)
How does the process of resealing work?
Foreigner with property in Kenya: grant applied for in country of origin ( once granted, is filed in the High Court in Kenya and the normal procedure of gazettement is done
Kenyan citizen residing in a foreign country: grant applied for in country of domicile (commonwealth countries allow application for grant in any country) ( once granted, is filed in the High Court in Kenya and the normal procedure of gazettement is done
What is corporate bankruptcy?
The legal process by which a company or other business declares that it is unable to pay its debts (i.e. the amount it owes creditors is greater than the revenue generated) and so requires relief
How do you convert a partnership to a company?
File a Notice of Cessation at the Registrar of Companies ( document notifies Registrar that owners of the partnership wish to stop using a particular business name
Notice of Cessation is to be presented with the Original Certificate of Registration of the Partnership
Once the Notice of Cessation is approved, the Advocates should reserve the name that the clients wish to use for the company they intend to incorporate (done through writing a letter to the Registrar asking him to confirm whether a company by that name exists, and if not, to reserve the name)
You need the following documents to register the new company:
Memorandum and Articles of Association
Statement of Nominal Capital + Stamp Duty Form
Notice of situation of registered office
How to deal with racial discrimination in a company as an Advocate?
Racial discrimination is a breach of the right to equality under the constitution, and so as an Advocate you could approach it by way of a Constitutional Petition
You could seek for:
Declaratory order that companies' practices are racially motivated
Damages for harm suffered as a result of the racial discrimination
Order of mandamus, ordering the company to take steps to alleviate the racial discrimination in the company, e.g. employ new hiring practices
What are the grounds for winding up a company by the court?
Inability of the company to pay its debts (i.e. money owed to creditors)
Special resolution by the company
Default in holding a statutory meeting or delivering a statutory report
Failure to commence business within a year of incorporation
Reduction of members below the minimum (private company is below 2 members, and public company is below 7 members)
It is considered just and equitable to wind up the company, e.g.
Where the sub-stratum of the company is dissipated, i.e. object no longer being fulfilled
There is a deadlock in management or vision of the company
Company is used as a vehicle of fraud
Minority membership of company is oppressed
Lack of confidence in directors
What factors vitiate a contract? (i.e. void a contract)
Misrepresentation
Mistake
Undue influence/duress
Illegality
Lack of capacity
Who are the agents in a company?
An agent is someone who is authorised to act on behalf of a principal in a transaction involving three or more people ( he/she has the capacity to legally bind the company
The Directors of a company are agents of a company (+ employees, members)
What is the agent – principal relationship?
An agent is someone who acts on behalf of a principal and so legally binds the principal
An agent can only bind the principal for acts or omissions during the course of the agent’s activities, as authorised by the principal
An agent can have two types of authority:
Actual authority: the agent takes an action on behalf of the principal and he reasonably believes that the principal wants this action taken ( includes express and implied authority
Apparent authority: exists where the agent takes actions for the principal with a third party, and the third party believes that the agent had authority to take the action
What are the different kinds of meetings?
Statutory Meeting: Every public company limited by shares—and every company limited by guarantee and having a share capital—must, within a period of not less than one month and not more than six months from the date at which the company is entitled to commence business, hold a general meeting of the members which is to be called the Statutory Meeting. In this meeting the members are to discuss a report by the Directors, known as the Statutory Report, which contains particulars relating to the formation of the company
Annual General Meeting: General Meeting of a company means a meeting of its members for specified purposes. There are two kinds of General Meetings:
(i) The Annual General Meeting and
(ii) Other General Meetings.
Extraordinary General Meeting: Any general meeting of the company which is not an Annual General Meeting or a Statutory Meeting is called Extraordinary General Meeting. An Extraordinary General Meeting is held for dealing with some business of special or extraordinary nature and which is outside the scope of the Annual General Meeting. This meeting is also held to transact some urgent business that cannot be deferred till the next Annual General Meeting
Meeting of the Board of Directors: The management of the company is vested on the Board of Directors. Therefore, the Directors are to meet frequently to decide both policy and routine matters. The provisions regarding Board Meeting are:
1. Board Meeting must be held once in every three calendar months and at least four times in every year. This provision may be exempted by the Central Govt.
2. Notice of Board Meeting shall be given in writing to every director
Class Meeting: These meetings are held by a particular class of shareholders for the purpose of effecting variation in the Articles in respect of their rights and privileges or for conversion of one class into another. The provision for variation must be contained in the Memorandum or Articles and this variation must not be prohibited by the terms of issue of shares of that particular class. Such resolutions are to be passed by three-fourth majority of the members of that class
Meeting of Creditors: These meetings are called when the company proposes to make a scheme of arrangement with its creditors. The Court may order a meeting of the creditors or a class of creditors on the application of the company or of liquidator in case of a company being wound-up. Such a meeting is held and conducted in such a manner as the Court directs. If arrangement is passed by a majority of three-fourth in value of creditors and the same is sanctioned by the Court, it is binding on all the creditors
Meeting of Debenture Holders: These meeting are called according to the rules and regulations of the Trust Deed or Debenture Bond. Such meetings are held from time to time where the interests of debenture holders are involved at the time of re-organisation, reconstruction, amalgamation or winding-up of the company. The rules regarding the appointment of Chairman, notice of the meeting, quorum etc. are contained in the Trust Deed
Meetings of Creditors and Contributories: These meetings are held when the company has gone into liquidation to ascertain the total amount due by the company to its creditors. The main purpose of these meetings is to obtain the approval of the creditors and contributories to the scheme of compromise or rearrangement to save the company from financial difficulties. Sometimes, the Court may also order for such a meeting to be held. When a company desires to vary the rights of debenture-holders, such meetings are to be held according to the rules laid down in the Debenture Trust Deed. They are also held to enable the company to issue new debentures or to vary the rate of interest payable to debenture-holders. The term “contributory” covers every person who is liable to contribute to the assets of the company when the company is being wound-up
Procedure for the formation of a company.
Conduct a search and reservation of the intended company name
File the memorandum of association and articles of association
File the following documents: physical address of company, amount of nominal capital, list of names and addresses of the directors and secretaries, certificate of compliance
Payment of stamp duty
Commencement of business once the registration certificate is issued
Provision in the Advocates Act on working under an Advocate before one opens his or her own firm.
Section 13(1)(i) Advocates Act
Pupillage for a maximum of 18 months under an Advocate who has been practicing for a minimum of 5 years
What kind of questions are asked in the Examination in Chief?
Who – What – Where – When – How
Questions that will elicit facts that are favourable to the case of the party calling the witness
No leading questions
Direct questions and each question must bring out a relevant fact or an explanation thereof
How does re-examination work?
This is a revival process ( ‘heal wounds opened during cross examination’
It is restricted to matters that arose in cross-examination
Court may ask witness questions for purposes of clarification
Possible problems of 3 law firms working in one room.
Possible breach of confidentiality
Confusion (e.g. if you are sharing a secretary, court clerks, etc.)
Disorganisation (e.g. if all your filing is done in one place)
May pose health and safety risks if you are all cramped in to one space
Conflict of interest (e.g. if you are both approached to represent adversaries) ( This could link to an increase in running costs because you will always be forced to meet your client outside of the office
What are CBAs and how are they enforced?
Collective Bargaining Agreements ( these are agreed upon conditions which are codified in to a contract and entered into between the labour organisation/union (on behalf of employees) and the employer
Sets out the basis terms of employment which are required by the employee, e.g. wages, leave days, how to handle disputes/grievances, etc.
CBAs should be registered with the ministry of labour
They are enforced as employees are allowed to defer to the provisions of their CBA
What is Joinder of Parties?
This is joinder of plaintiffs where there is a common claim arising from the same act/transaction/series of transactions
Or, joinder of defendants where the there is a right to relief from all the defendants jointly, albeit in the same act/transaction/series of transactions
What is discussed in an AGM?
Business of declaring a dividend
Consideration of account, balance sheets and report of the auditors and directors
Election of directors (normally to replace those retiring)
Appointment of auditors
Remuneration of directors
What are extradition proceedings?
Extradition is an act where one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to their law enforcement
It is a cooperative law enforcement process between the two jurisdictions and depends on the arrangements made between them
Besides the legal aspects of the process, extradition also involves the physical transfer of custody of the person being extradited to the legal authority of the requesting jurisdiction
Through the extradition process, one sovereign jurisdiction typically makes a formal request to another sovereign jurisdiction ("the requested state"). If the fugitive is found within the territory of the requested state, then the requested state may arrest the fugitive and subject him or her to its extradition process. The extradition procedures to which the fugitive will be subjected are dependent on the law and practice of the requested state
Julius Assange – Ecuadorian Embassy
In what situations can a Director be liable to third parties?
Generally, corporate officers and directors do not have a special relationship of trust (i.e., a fiduciary relationship) with third persons or creditors transacting business with the corporation. Moreover, unless they sign in an individual capacity, corporate officers and directors who negotiate and execute a contract on behalf of the corporation are not personally accountable on the contract, even if the corporation later defaults or otherwise breaches the contract. Likewise, corporate officers and directors will not be personally liable for the debts of the corporation, even if involved as an agent of the corporation in undertaking the debt
Exceptions to the rule include:
The Director knew of and committed (or directed) an actionable wrong, such as a tort or fraud, that directly damaged a third person or creditor
If the Director had actual knowledge (or should have known) of the actionable wrong and participated in the actionable wrong
If the Director actively participated in malfeasance in the management of the corporation to the detriment of the third person or creditor, there may be personal liability
If the Director knew of (or should have known of) the following acts and participated in them anyways:
Defamation;
Conversion (i.e., stealing or misappropriating personal property that another person has the right of possession in);
Unfair competition;
Inducing the corporation to breach a contract (usually requires a personal benefit to the officer or director and bad faith); or
Fraud or misrepresentation.
If they contract as agents of an undisclosed principal, i.e. they act on behalf of the company without disclosing that they are acting on behalf of the company
If the action the Director engaged in was ultra-virus and affected a third party
Where there is misstatement of the prospectus
Where there is an irregular allotment (*)
What is a quasi-contract?
A quasi contract is a retroactive arrangement between two parties who have no previous obligations to one another, created by a judge to correct a circumstance in which one party acquires something at the expense of the other
The contract aims to prevent one party from unfairly benefiting from the situation at the other party's expense
These arrangements may be imposed when goods or services are accepted, though not requested, by a party—and the acceptance then creates an expectation of payment
When do contracts terminate?
Performance of obligations under the contract
When the contract is voided, e.g. by mistake, undue influence, duress, etc.
Breach of condition in the contract leading to rescission
Agreement between the two parties
Frustration, e.g. impossibility of performance due to natural disaster
What are the remedies for breach of contract?
Money damages
Restitution
Specific performance
Repudiation (for breach of a condition)
Rescission, e.g. in cases of undue influence, mistake, misrepresentation ( over here, one may apply for money damages
Duties of secretaries of a company.
Issuing notices of general meetings to the members of the company with the Board’s consent
Issuing notices of Board meetings to the members of the board
Taking minutes during board and general meetings
Keeping books and registers
Counters-signing documents to which the company seal has been affixed
Making statutory returns for the company
Various ways to respond to a Plaint.
Counter-claim
Join third party for indemnity/contribution
Set-off
Objection on point of law
Denial
Documents essential before a public company can trade.
Prospectus
Consents
Financial records of the company
Contracts
Functions of an official Receiver in winding up proceedings.
Operate the company as a going concern to try and revive the company
Pay off all creditors of the company
Institute and defend legal proceedings
Give account to the court of assets and liabilities of the company
Ways in which one can stop being a member of the company.
Death
Bankruptcy
Redemption of preference shares
Liquidation of the company
Transfer/surrender of shares
Sale of shares held through the company’s lien
What is the difference between transfer and transmission of shares?
Transfer: a voluntary act of a member that takes place by way of a contract
Transmission: an involuntary transfer of shares by the operation of law, e.g. when the company becomes insolvent/the member dies
What are the defences in Tort Law?
Contributory negligence
Voluntary assumption of risk (volenti non fit injuria)
Illegality
Acts of God
Mistake
Necessity
Self – defence
Principle of Nolle Prosequi.
Nolle prosequi is a Latin phrase meaning “will no longer prosecute” or a variation on the same. It amounts to a dismissal of charges by the prosecution
The prosecution invokes nolle prosequi or dismissal when it has decided to discontinue a prosecution or part of it. Lawyers and judges refer to the charges “nol prossed” or dismissed. The prosecution may nol pross all charges against the defendant or only some
A prosecutor might nol pross or dismiss charges for a variety of reasons, including:
Re-evaluation of evidence
Emergence of new evidence
Failure of witnesses to cooperate
Desire to give the defendant a second chance
Difference between the Advocates Complain Commission and Advocates Disciplinary Committee.
ACC: investigates complaints against an Advocate
ADC: deals with the disciplinary issues involving an Advocate after being heard by the ACC
Difference between Retracted and Repudiated confessions.
Retracted: occurs when the accused person admits that he made the confession but now seeks it revoked on grounds that he has been forced to make the statement
Repudiated: the accused avers that he never made the confession
Eminent Domain.
The power to take private property for public use by the state, municipality or private person or corporation authorised to exercise functions of a public character
It follows from the payment of just compensation to the owner of that property
The land must be private + Government must have capacity to take possession + Property must be tangible + The acquisition must be for a public purpose + The owner must be compensated
The same as compulsory acquisition
Admissibility of CCTV evidence in Kenya.
Is admissible under Section 78A Evidence Act as being digital material (electronic and digital evidence). The admissibility is subject to:
Reliability of manner in which the evidence was generated, stored or communicated;
Reliability of the manner in which the integrity of the evidence was maintained;
Manner in which originator of electronic evidence was identified; and
Any other relevant factor.
Exclusion clauses and how they operate.
These are clauses which seek to exclude the application of a statute/law to your particular contract
However, their use is limited, e.g. in Hire Purchase Agreements, one cannot exclude the application of implied conditions and warranties
What are the elements of murder?
Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder
Wafula was hit by Kevin’s car on Langata road. He comes to you for advice on how he may proceed.
Ascertain the facts of the situation, e.g. how did Kevin get hit? Was Kevin crossing at a zebra crossing? Was Wafula driving dangerously or negligently?
If he has a cause of action, it depends on what he is seeking:
S. 47 of the Traffic Act – reckless driving is a criminal offence, attracting either a fine or imprisonment (thus, Wafula will not be able to claim damages); alternatively
If Wafula is seeking to claim damages for the harm caused to him, he can institute a claim in negligence
X enters into a contract with Y, for Y to supply goods to X. X pays Y, but Y dies before making delivery. X is attempting to sue. Advise Y’s widow.
Y’s widow must apply to the court for grant ad litem
This grant will allow Y’s widow to defend proceedings instituted by X against Y’s estate
Property in the goods would have passed to X at the time when the contract was made because it was an unconditional contract for specific, ascertained goods
Doctrine of Res Ipsa Loquitor.
In tort law, a principle that allows plaintiffs to meet their burden of proof with what is, in effect, circumstantial evidence
The plaintiff can create a rebuttable presumption of negligence by the defendant by proving that the harm would not ordinarily have occurred without negligence, that the object that caused the harm was under the defendant’s control, and that there are no other plausible explanations
To prove res ipsa loquitor negligence, the plaintiff must prove 3 things:
The incident was of a type that does not generally happen without negligence
It was caused by an instrumentality solely in defendant’s control
The plaintiff did not contribute to the cause / the Defendant’s explanation of non-negligence does not explain the Plaintiff’s injury.
What are objection proceedings?
Order 22, Rule 50 CPR
You can stop execution by Objection proceedings
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
E.g. Where judgement has been entered against X and a decree has been issued as against X to a decree holder, who has then applied for execution and property has been attached, there is provision for objection to the attachment, the grounds are usually that the property does not belong to the JD but to a third party, usually the commonest of objections are made by the spouses
B bought land from A, and then sold the land to buyer C. However, B hasn’t completed paying A for the land. Advise B on how to proceed.
This concerns a situation in contract law called novation. Novation is:
Replacing an obligation to perform with another obligation; or
Adding an obligation to perform; or
Replacing a party to an agreement with a new party.
B will assign his liability for payment of the land to C
What does the Advocate of the accused do as part of defence proceedings?
Assessing the case (i.e. what are the chances of conviction or acquittal?)
Handling the pleas (i.e. should your client enter into a plea bargain or are their chances at trial strong?)
Handle the trial
What are overriding objectives?
Section 1A of the Civil Procedure Act
The overriding objective of the Act is just, expeditious, proportionate and affordable resolution of civil disputes
An accused person walks in to your office and you find out he is insane. How do you proceed?
Firstly, submit your client to a medical examination
If they adjudged to be suffering from bouts of insanity, try and determine how long these bouts of insanity have been occurring for
If it can be ascertained that your client was suffering from bouts of insanity at the time of committing the offence, then he/she is not liable ( S. 12 of the Penal Code exempts liability where an individual is suffering from a disease of the mind which renders that individual incapable of understanding what he is doing
This is also reflected in the McNaughten Rule which test determines whether the accused understood whether her actions were wrong. There is a 3-stage test:
The individual suffers from a defect of reason;
The defect of reason was caused by a disease of the mind;
As a result, he/she does not know the nature and quality of the act or that it was wrong
What is the difference between bail and bond?
Bail: an agreement between an accused person and the court that the accused person will attend court when required. Should the accused person abscond, in addition to the court issuing warrants of arrest, the sum of money/property deposited with the court as bail will be automatically forfeited
Bond: an undertaking issued by a surety entered into an accused person in custody, under which he/she binds himself/herself to comply with the conditions of the undertaking. In default of such compliance, to pay the amount of bail or the sum fixed in the bond
What is a charge and discharge of charge?
Charge: a security created by the lender over the borrower’s property so as to secure a loan granted to the borrower, e.g. a charge over land to secure a loan taken by a Bank
Discharge of charge: this is a release of the charge over the borrower’s property after he/she has fulfilled obligations under the loan agreement
What is forefeiture?
This is the loss of any property without compensation as a result of defaulting on contractual obligations or as a penalty for illegal conduct
E.g. the Judge seizing a truck which was used to transport logs that were acquired through illegal logging (i.e. taking away the object with which the crime is committed)
What is stakeholding?
Stakeholders include shareholders, management, employees, the larger community, and even the government
While stakeholders may not have a direct financial interest in the company, they would still stand to benefit if the venture or company succeeds
Thus, stakeholding is the benefit bestowed upon a stakeholder from the success of a company or specific venture
E.g. local government may want to see local companies succeed as this results in generation of higher tax revenue
Explain what ‘bonus issue’ is.
A bonus issue, also known as a scrip issue or a capitalization issue, is an offer of free additional shares to existing shareholder
A company may decide to distribute further shares as an alternative to increasing the dividend pay-out, e.g. a company may give one bonus share for every five shares held
Bonus issues are given to shareholders when companies are short of cash and shareholders expect a regular income. Shareholders may sell the bonus shares and meet their liquidity needs
Bonus shares may also be issued to restructure company reserves. Issuing bonus shares does not involve cash flow ( it increases the company’s share capital but not its net assets
Advantages and Disadvantages of Issuing Bonus Shares
Because issuing bonus shares increases the issued share capital of the company, the company is perceived as being bigger than it really is, making it more attractive to investors. In addition, increasing the number of outstanding shares decreases the stock price, making the stock more affordable for retail investor
Because issuing bonus shares does not generate cash for the company, it could result in a decline in the dividends per share in the future, which shareholders may not view favourably. In addition, shareholders selling bonus shares to meet liquidity needs lowers shareholders' percentage stake in the company, giving them less control over how the company is managed.
What is a ‘rights issue’?
Cash-strapped companies can turn to rights issues to raise money when they really need it
In these rights offerings, companies grant shareholders the right, but not the obligation, to buy new shares at a discount to the current trading price
A rights issue is an invitation to existing shareholders to purchase additional new shares in the company ( This type of issue gives existing shareholders securities called rights. With the rights, the shareholder can purchase new shares at a discount to the market price on a stated future date
The company is giving shareholders a chance to increase their exposure to the stock at a discount price
Until the date at which the new shares can be purchased, shareholders may trade the rights on the market the same way that they would trade ordinary shares
The rights issued to a shareholder have value, thus compensating current shareholders for the future dilution of their existing shares' value ( Dilution occurs because a rights’ offering spreads a company’s net profit over a larger number of shares. Thus, the company’s earnings per share decreases as the allocated earnings result in share dilution
What determines the validity of a will?
Form ( written, signed, witnessed and attested
Capacity ( not a minor, i.e. above 18 years of age
Sound mind ( not suffering from a disease of the mind that affects memory or understanding
What is the meaning of the seriatim clause in a defence?
'In series’ / ‘one after another’
It is a denial of each clause of the plaint as if the same were set out in the same order in the defence
A client tells you, in his native language, what he wants in his will. It is translated in to English and you note it down in English. What other documents should you attach to this will?
A certified translation of the will
Talk about signatures on a will. Is a rubber stamp a valid signature?
The term “signature” is not defined in the Act, but the courts have widely interpreted it to cover any mark of the testator which is intended as a signature e.g. thumb print, initials, assumed name, mark by a rubber stamp with the testators name have all been held to amount to valid signatures
Talk about the application of customary law.
Customary law is applicable so long as it is not repugnant to justice and morality
Example: Otieno v Ougo and Another ( discussed whether Luo customary laws as regards burial are repugnant to justice and morality
What are deal breaking clauses in conveyancing?
If the purchaser goes insolvent
Lack of adequate consideration for the land
Your client has just been arrested, and rushed to Makadara. What would you do next?
You go to the Police Station and ascertain the following:
Why was he arrested, was it a lawful arrest?
Was there a warrant for his arrest?
Were his rights read out to him?
Is he eligible for bail?
Find out when he is due to appear in court on the charges against him
Find out details of the charges levied against him
A wife married under Cap 150 has just heard that her husband is getting married tomorrow. Advise her with regard to stopping the marriage.
Section 15 Marriage Act: any person who may know of any just cause why the marriage should not take place should enter a caveat against the issue of the Registrar’s certificate by writing at any time before the issue thereof
Section 29: once you are married under Cap. 150, it would amount to bigamy to enter into a subsequent marriage without legally dissolving your first marriage
How is the LSA arranged?
Preliminaries
Wills
Provision for dependants
Gifts in contemplation of death
Intestacy
Survivorship
Administration of estates
Difference between nullity and divorce.
An annulment of marriage is a legal decree that a marriage is null and void. Annulments are granted when a court makes a finding that a marriage was invalid from the point of its inception
While a divorce ends a legally valid marriage, an annulment treats the marriage as if it never existed
Grounds for annulment:
Marriage not consummated since celebration
At the time of the marriage and without knowledge of either party, the parties were in a prohibited relationship
One party was married to another in the case of a monogamous marriage
The petitioner’s consent was not freely given
A party to the marriage was absent at the time of the celebration of the marriage
The wife was pregnant at the time of the marriage and it was not the husband’s child
At the time of the marriage and without the knowledge of the petitioner, the other party suffers recurrent bouts of insanity
Grounds for divorce:
Cruelty
Desertion for at least 3 years
Adultery
Depravity
Irretrievable breakdown of the marriage
A Kamba woman wants a divorce under customary law. How do you proceed?
If any of the grounds for divorce exist, then you may petition the court for the divorce – specifically stating the grounds on which the petition is based
Must be supported by an Affidavit sworn by the Kamba woman
What is your take on the Marriage Bill?
Remember: this Bill has been tabled by Parliament
A married man, who has intentions of marrying another wife, seeks consent from his wife or wives and whether she or they approve of the intended marriage
Any man or woman who spells out his or her intentions to marry his or her lover or partner but fails to honour their statement commits an offence, and on conviction shall be liable to imprisonment and the jilted partner will be entitled to compensation
50/50 sharing of property between a couple in case of dissolution of marriage
Where matrimonial property is acquired during the marriage in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other partner
What is a codicil?
A testamentary instrument made in relation to a will
It explains, alters or adds to the dispositions or appointments in the will
It must be duly made and executed as required
Quicquid plantatur solo.
‘Whatever is affixed to the soil belongs to the soil’
This is a legal Latin principle related to fixtures which means that something that is or becomes affixed to the land becomes part of the land
ID Parades.
This is where a suspect is placed in a group of 8 other individuals, all of whom look similar to the suspect, so that a witness to a crime (who has only caught a fleeting glimpse of the suspect) may try and identify the suspect
It is a method of identifying/confirming the identity of a suspect to a crime
Difference between professional misconduct and professional negligence.
Professional negligence: this is the absence of reasonable care and skill which results in damage/loss to your client, e.g. where an Advocate – without reasonable cause – fails to file his client’s documents in court on time or at all
Professional misconduct: there is no absence of reasonable care and skill, but there is non-adherence to ethical/moral standards, e.g. an Advocate may be liable for professional misconduct for failing to honour a promise under a professional undertaking
Failure of both/any parties to appear in court.
Summary judgement/judgement in default of appearance
There are some situations where a failure to appear could lead to a warrant for arrest being issued, e.g. where you fail to appear after you were granted bail
You are the Purchasers Advocate. Before completion, the Vendor mortgages the property, but the Purchaser still insists on acquiring the property. How do you proceed?
Novation ( i.e. replacing the Vendor as the mortgagor in the agreement with the Purchaser
Can spouses testify against each other?
Section 127: a spouse is a competent witness; however, he/she can only be a witness:
Upon their own application;
Upon the application of the person charged; and
Their failure to be a witness cannot draw adverse inferences
However, a spouse may be compelled to be a witness in criminal proceedings in the following three circumstances:
Bigamy
Offences under the Sexual Offences Act
In respect of act/omission affecting the person or property of the spouse or children
Section 130: communication within a marriage is confidential and privileged, and cannot be disclosed without the consent of the other party
Your client was driving along Thika Road and saw an advert on a bill board. As he is short sighted, he couldn’t see an exclusion clause that was in small font. He entered in to a contract with the company, and the company breached the contract on the basis of the exclusion clause. Can your client sue?
Exclusion clauses are terms in a contract that prevent a party being held liable for certain occurrences
Exclusion clauses must be:
Properly incorporated in the contract through notice;
Legal; and
Completely clear (if the clause relates to negligence)
However, the billboard is not a contract but rather is an invitation to treat. It is likely that this man proceeded to enter into a legally binding agreement after viewing the advert on the billboard, and it was up to him (under the law of contract) to ensure that he thoroughly read the contract and understood his obligations, rights, areas of exposure, etc. It is not a defence to say that one did not know about the terms of a contract that he/she has signed
When a document containing contractual terms is signed, then, in the absence of fraud or misrepresentation, the party signing it is bound and it is wholly immaterial whether he has read the document or not
Confessions.
Confessions are an exception to the hearsay rule
However, the source of a confession’s reliability stems from the methods used to extract it, e.g. if a confession is obtained by coercion/torture, then there is a risk that the confession may prove untrue
A confession may also be rejected on the basis that a man cannot be compelled to incriminate himself and upon the importance society attaches to proper behaviour by the police towards those in their custody
At common law, an accused’s silence may amount to a confession by the drawing of adverse inferences ( this is especially in circumstances where an accusation might reasonably have elicited a response from the defendant
Exculpatory statements which are subsequently proven to be untrue do not amount to a confession (e.g. because illegitimate pressure may cause an accused to panic and lie)
Confessions must be excluded from evidence if:
It has been obtained by oppression, i.e. torture, inhumane or degrading treatment, the use or threat of violence, etc.
It has been made in consequence of things said or done that might render it unreliable
If its admission might reflect adversely on the fairness of the proceedings, e.g. where there is a breach by the police to read the accused his rights
It is considered by the courts to be just and reasonable to exclude it, i.e. under judicial discretion, if its prejudicial effect is greater than its probative value
What is discrimination? Where do you institute discrimination proceedings and how?
The unjust or prejudicial treatment of different categories of people
It is governed by Article 27 of the Constitution 2010, which states that every person is equal before the law and has the right to equal protection and benefit of the law ( It includes the right to full and equal enjoyment of fundamental rights and freedoms
Women and men ( right to equal opportunities in political, economic, cultural and social spheres
State shall not discriminate (directly or indirectly) on grounds of race, sex, pregnancy, marital status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth
Institute discrimination proceedings by way of a Constitutional petition ( Article 22: where a right or fundamental freedom has been violated, infringed or threatened
Insanity proceedings.
Dealt with under S. 162 – S. 167 of the Criminal Procedure Code
Court inquiries into the soundness of an accused’s mind if the accused is incapable of making a defence ( if accused is adjudged insane, the proceedings may be discontinued
Where the accused applies for bail, the court may release him on condition that sufficient security has been given and that the accused will be cared for well/prevented from injuring himself or any other person. If bail is denied, the court may order that the accused be retained in sane custody
If the medical officer of the mental hospital or place of custody judges that the accused is incapable of making a defence, the officer is to make a certificate to that effect to the AG ( the AG then informs the court whether the state wants to continue with the proceedings
Where the AG indicates that the state will not continue with the matter, the accused is discharged, but that is not a bar to subsequent proceedings against the accused on the same set of facts. Where the AG says otherwise, the accused is brought back to court and the proceedings will start afresh
What is the structure of the various courts?
Supreme Court
7 Judges, but is properly constituted with 5
Chief Justice is the President + Deputy Chief Justice is the Vice President
Court of Appeal
Not less than 12 Judges and not more than 30
High Court/ELRC/ELC
Chief Magistrates Court
What are mitigating circumstances?
A circumstance in the commission of an act that lessens the degree of criminal culpability
E.g. X was convicted of manslaughter rather than murder because of mitigating circumstances
Can the Judiciary try an Advocate as opposed to the Advocates Complaints Commission?
The decision moves from the Advocates Complaints Commission to the Advocates Disciplinary Tribunal if the ACC that there is a genuine claim that needs to be investigated
A decision made by the Advocates Disciplinary Tribunal is normally appealable to the High Court
Where is a search conducted for the following:
IR81765
CR34567
KWALE/KILIFI/BLOCK 1
Where are the Registries located and who is the Registrar (under the RTA, registrar of titles).
Difference between a caution and a caveat.
Caution: this is a restraint over dealings in the land (e.g. a caveat)
Is registered by a third party who has an interest in the land, e.g. where there is a contractual obligation which the legal owner of the land has not discharged
Cautions may cause the party who filed the caution to be informed of any transactions on the land, as well as prevent dealings over the land
Restriction: this is a restraint imposed by the government or Registrar to prevent fraud, improper dealing or for any other sufficient use
Inhibition: this is an order of the court prohibiting transaction as against a property until the happening of a particular event or until certain conditions are met
Bills that are currently before Parliament/have been recently enacted by Parliament.
What is considered as a fourth arm of the Government and why?
Commissions and Independent Offices (created under the 2010 Constitution)
Restructure the government in order to catalyse better service provision and better systems of accountability
Objects for which C&IO were created include: protect sovereignty of the people, secure observance by all state organs of democratic values and principles and to promote constitutionalism
The constitutional shields them from arbitrary abuse of power by other arms of the Government
They are subject only to the constitution/law, and they are independent, i.e. not subject to direction or control by any person or authority
C&IO have been called the ‘integrity branch’ of the Government ( provide elaborate checks and balances mechanisms that will ensure equitable, efficient and accountable checks and balances of economic and political affairs at all state levels
Who are the heads of the Supreme Court, Court of Appeal and High Court?
Head of the Supreme Court = The President of the S.C. = The CJ, David Maraga
Head of the Court of Appeal = Justice William Ouko
Head of the High Court = Principal Judge = Hon. Lady Justice Lydia Awino Achode
Different kinds of Parliamentary Committees.
What are the 5 phases involved in emergency situations?
Preparedness ( continuous cycle of planning, organising and training on activities in response to a disaster
Prevention ( prevent hazards from developing in to disasters
Response ( mobilisation of necessary emergency services to respond to the disaster
Recovery ( restore the affected area to its previous state
Mitigation ( try and reduce the amount of damage
List four forms of discrimination.
Age, sex, race, colour, gender, ethnic or social origin, religion, belief, etc.
What is sexual harassment, different forms of sexual harassment and different causes of sexual harassment?
Harassment: any behaviour that vexes, disturbs, infuriates, demeans, distresses, makes one uncomfortable, thereby undermining the victims’ morale, dignity and personal freedom
Sexual harassment: unwelcome sexual advances and other verbal or physical contact, usually relating to intimidation, exploitation and abuse of authority or position. This includes:
Use or display of pictures, calendars and posters of a sexual nature at desks, bulletin boards, and other work areas
Making careless jokes or comments of a sexual nature
Whistling, catcalls and other similar behaviour
Note: it is the consequence and not the intention that matters in establishing sexual harassment
Typical causes of sexual harassment
Bar/poor socialisation
Dynamic organisational/social power games/politics (the rise of women) ( powerplay affects people, i.e. how you decide to exercise power over your juniors or others
Absence/declining morals, norms, values and cultures (rising moral decadence)
Victim blame tendency by society
Aggressive group think phenomenon (group (mob) justice)
Absence of policy, standards and procedures
What are the 7 C’s of effective communication?
Clear
Concise
Coherent
Concrete
Correct
Complete
Courteous
What provisions of the Occupational Health and Safety Act have been implemented in the work place?
S. 74 of the OHSA provides for safety with regards to storage. Goods should be stored in a manner such that:
Will ensure their stability and prevent any fall or collapse of the stack
Will not interfere with the distribution of natural or artificial light, natural ventilation systems and the proper operation of machines/other equipment
Will not obstruct traffic ways, gang ways or traffic lanes
Will not obstruct the efficient functioning of the sprinkler system or fire extinguishers
No goods shall be stacked against a wall or partition unless the wall or partition can withstand the pressure of the goods
Explain the procurement process.
Procurement is the act of obtaining or acquiring goods and services by an institution. The procurement cycle entails the following:
Identification of a requirement or need in the organization
After which a plan is put in place emphasizing how to obtain the specific need.
The organisation involved then checks on the availability of funds before proceeding to check the sourcing options
Checking the sourcing options
An advertisement on the procurement is then made ( This depends on the company again. A company could choose the open tendering approach or the restrictive approach
The organisation receives and opens the bids
Evaluating the bids using a checklist and carry out eliminations ( The vendor is identified and a report on the same is put down
The vendor is then notified of the contract award
A purchase order is issued to that effect either via mail, fax or personally ( The order addresses on the terms of service of the contract, the conditions of product of service, price, timelines for delivery etc
Administration of the contract (delivery of goods)
Inspection of purchases (could result to acceptance or rejection of goods depending on whether the products conform to the prescribed order)
Issuance of an invoice (which as a receiving document that indicates completion of contract)
Storing and management of goods
All this is subject to the Public Procurement and Asset Disposal Act
Principles of a good filing system.
Cost effective
Compactness
Simplicity
Accessibility
Flexibility
Accuracy
Suitability
Safety and security
Cross reference
Advantages and disadvantages of centralised and decentralised office functions.
Advantages of a centralised office system:
Saving of costs of equipment and electricity
This layout enables the office to save space
Encourages communication between employees
Provides a sense of community between the employees
Smooth flow of work and easy supervision since staff sit in a pool
Work for absent staff is easily distributed to the pool of staff
Equal distribution of work at the pool
Fewer workers thus cost effective
Uniformity of work
Encourages specialization - efficiency of qualified people
No duplication of work
Easy training of new staff by the pool staff
Flexibility on job since staff are rotated to do various jobs in the department
Better control of office resources and records due to close monitoring
Disadvantages of a centralised office system:
lack of privacy
Lack of confidentiality
It could be noisy
Too much movement to the department from other departments in relation to the centralized work
Boredom and monotony of work
Uniform procedures encourage lack of flexibility if the work is done
High number of messengers needed distribute work to the user offices
It takes long to retrieve documents from a central office
High probability of misplacing documents due to high volume of records
There is no accountability in case of mistake
High risk of loss in case of a disaster like fire
Lack of exposure to other departments and senior executive and may hinder growth
Advantages of decentralised office system:
Saves time
Less noise
Unique requirements of a specific unit are catered for
More accountable for mistakes
Suitable for confidential work
Improves the person's contact with staff of other departments and the executive increasing chances of growth
There is spreading of risk should a disaster strike
Opportunity to learn new talents because staff have different tasks.
Few messengers required since no work needs to be distributed
Minimizes movement of staff going other departments
It reduces boredom and monotony of work due to a variety of tasks
Disadvantages of a decentralised office system:
Expensive
There is no outflow of information from one department to another Centralized office all services are done at a designated point functions Merits
Duplication of work
Lack of flexibility in job rotation
Unequal distribution of work leading to increased over time costs
Difficult to train new staff
Difficult to handle absenteeism
Difficult to supervise since each worker has different tasks
Hinders specialization
Lack of uniformity of work hinders efficiency
Uneconomical in staffing since every office will need e.g. a clerk, typist
What are contracts of ubberimea fidei?
An uberrimae fidei contract is a legal agreement requiring the highest standard good faith
"Uberrimae fidei" or "uberrima fides" is Latin for "utmost good faith"
Insurance contracts are the most common type of a uberrimae fidei contract ( Because the insurance company agrees to share the risk of loss with the policyholder, it is imperative that the policyholder act in good faith by fully disclosing all information that affects the insurance company's level of risk
What is discovery under the CPR and how is it conducted?
Governed by Order 11, Rule 2 CPR ( This covers a situation where the court may give orders for discovery, production or inspection of interrogatories which may be appropriate to the case
Oracle Productions v Decapture Limited: “Pre-trial discovery is so central to litigation that the entire order 11 of the Civil Procedure Rules 2010 has been substantially devoted to it, including sanctions for non-compliance. Orders 4 and 7 now require parties to file and serve documentary evidence with their pleadings. Order 14 empowers the court to order for production, impounding and return of documents. I agree with the holding of Havelock J in the Concord Insurance case (supra) that discovery should be limited solely to the matters in contention. Relevance can only be gauged or tested by the pleadings or particulars provided. Halsbury’s Laws of England (supra) paragraph 38. See also Kahumbu Vs National Bank of Kenya Limited [2003] 2 E.A 475, Oluoch Vs Charagu [2003] 2 E.A 649”
Discovery cannot be used as a fishing expedition for new evidence or new witnesses ( you can only ask for what is relevant to your case/to substantiate claims the other party has raised
E.g. you cannot ask for numerous documents which will have slight, if any, bearing on your matter or the approach you seek to take
When are Originating Summons used?
Can make the following applications:
Reliefs in the nature of sale, foreclosure, delivery of possession to the mortgagee by the mortgagor, redemption, reconveyance, etc.;
Application for extension of time under the rules of Limitations of Actions Act;
Application for land ownership by way of adverse possession;
Application for reconstruction of a file;
Fixing of a matter for directions by one of the parties; or
Where specific legislation provides for the use of an O.S.
When is a Notice of Motion used?
To make the following applications:
For orders for Judgement on Admission;
For Summary Judgement;
For Stay of Proceedings;
For lifting, varying or changing an Injunction;
For release orders, e.g. Habeas Corpus Order;
Judicial Review;
Burial Disputes; and
Constitutional Applications
When are Chamber Summons used?
When making an application seeking orders within a pending suit
What is the difference between Statutory Declarations and Affidavits?
STATUTORY DECLARATION
AFFIDAVIT
This is a written statement that allows a person to declare something to be true under conditions and sanctions defined by statute
A written statement confirmed by oath or affirmation, for use as evidence in court
Normally used for non-contentious matters
Normally used for contentious matters (i.e. where there is a dispute in court)
Statutory Declaration is confirmed by a Deponent
Affidavit is sworn by a Verat
Used outside court proceedings
Used in court/for court proceedings
Governed by the Oaths and Statutory Declarations Act
Governed by the CPR 2010 and the old Statutory Declarations Act
Applying for a practicing certificate; applying to be appointed as a commissioner of oaths; applying to confirm a patent; applying for confirmation of change of name/confirmation of marital status; used in conveyancing, when applying for a caution you need to use a statutory affidavit
Used to present evidence in court
Similarities between the two:
Both documents are duly signed by the authors, which is mandatory under the applicable statutes
Both documents must be commissioned by a person who has been given the authority to administer oaths
In regard to the charge of perjury, the Penal Code Section 108 would apply to swearing a false statutory declaration and affidavit
What is the difference between Ratio Decidendi and Obiter Dicta?
RATIO DECIDENDI
OBITER DICTA
Rule of law applied by and acted upon by the court, or the rule of law regarded by the court as governing the case
A statement made by a judge in the course of his judgement which may not precisely be relevant to the issues before him/her
Binding authority
Persuasive authority
Rule of law based on material facts
Rule of law based on hypothetical facts
Rule of law treated by the judge as a necessary step in reaching the conclusion of the court
Rule of law which is not treated by the judge as a necessary step in reaching his conclusion
Explain the thin skull principle in criminal law.
A wrongdoer must take his victim as he finds him
Therefore, the fact that the victim suffered from a pre-disposed condition which resulted in the injury being more severe than it would have been were the person not affected by the pre-disposed condition is no defence
Difference between murder and manslaughter.
Murder ( both act and intention, i.e. mens rea and actus reus
Manslaughter ( act but no intention, i.e. actus reus but no mens rea
Difference between a confession and an admission.
CONFESSION
ADMISSION
A voluntary and direct acknowledgement of guilt
Admission of a fact which may be used as incriminating evidence
A confession is made by the accused person which is sought to be proved in the Court of Law
An admission usually relates to civil matters and comprises all statements amounting to admissions
A confession is considered conclusive proof
Admissions are considered substantive evidence, but are not conclusive proof of the matters admitted
Confessions made by one or more accused jointly may be used as evidence against a co-accused
Admissions by one of the several defendants cannot operate as evidence against other defendants
Confession is a direct admission of guilt
Admission amounts to inference about the liability of the person making admission in a suit
Difference between an inquest and commission inquiry.
Inquest:
This is usually held to address community concerns about a death, or draw attention to a cause of death, so that such awareness can prevent future deaths
Upon conclusion, a written report with the verdict of the inquest is prepared
The report includes classification of the death and whenever possible, recommendations to the jury on how to prevent a similar death
Public inquiry:
A public inquiry is allowed to make findings of misconduct against individuals
However, it cannot lead directly to a criminal conviction or criminal penalties as it is not a substitute or alternative for a criminal court process
A public inquiry can make its recommendations enforceable by making any order necessary for the purpose of enforcing its orders or directives
What is an equivocal plea?
This is a plea that is contradictory, i.e. the defendant may plead guilty but add something that indicates a defence
What are online sale remedies?
If you are dissatisfied with a product that you have bought online, the following steps may be taken:
Proof of purchase, e.g. invoice/order number
The reason for the return has to be valid and the return acceptance conditions must be met
The method of the refund that the customer prefers and his/her necessary information, e.g. the customer’s bank account details in which the refund should go
A duly filled in return form with the product you are returning
Discuss the Kyoto Protocol.
The Kyoto Protocol was adopted in in 1997 in Kyoto ( Kenya ratified it in 2005
Its main objective is to stabilize greenhouse emissions concentration in the atmosphere
It sets mandatory and binding greenhouse emission limitation or reduction targets for industrialized countries
Countries trade emission quotas among themselves thus enabling them to meet their emission target
The targets majorly concern reducing overall emissions of such gases by at least 5 per cent below existing 1990 levels in the commitment period of 5 years which is from 2008 to 2012.
In order to facilitate the implementation of these commitments, the protocol provides for the use of innovative set of tools known as flexible mechanisms
These mechanisms allow state parties to reduce emissions by undertaking projects in other countries or trading in emission reduction credits
The flexible mechanisms are:
Joint implementations ( Article 6
Clean Development Mechanisms ( Article 12
Emissions trading ( Article 17
What are debentures?
Debentures are a debt instrument used by companies and government to issue the loan
The loan is issued to corporates based on their reputation at a fixed rate of interest
Debentures are also known as a bond which serves as an IOU between issuers and purchaser
Companies use debentures when they need to borrow the money at a fixed rate of interest for its expansion
Is it moral or ethically appropriate to post questions you have been asked to WhatsApp Group chats to other students who have not been examined? Why?
Utilitarianism ( the greatest good for the greatest number ( this gives in to morality
What is the 3-strike principle?
The 3-strike principle significantly increases sentencing of persons convicted of a felony and who have previously been convicted of two or more violent crimes or serious felonies and limits the ability of these offenders to receive a punishment other than life imprisonment
If the 3rd strike is not a serious or violent crime, one can appeal and have the sentence reduced or dismissed
What options are available to a defendant where a Plaintiff has filed a claim but not made appearance in 2 or more years?
The Defendant can apply for dismissal for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules
The Defendant will apply for dismissal by way of a Notice of Motion ( Judge will issue Notice to Show Cause in writing why suit should not be dismissed for inaction for 1 or more years:
If no cause shown, suit is dismissed
If cause for the delay is shown, then the court will issue such orders as it thinks fit for the expeditious prosecution of the suit
Section 2 of the Advocates Act defines a client. What should lawyers be (worried) about in the definition?
“Client” includes any person who, as a principal or on behalf of another, or as a trustee or personal representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or employs, or is about to retain or employ an advocate and any person who is or may be liable to pay to an advocate any costs
There are two issues with this:
‘Or is about to retain…’ ( what information amounts to confidential information? Does this mean information that is covered before you are retained as an Advocate is also covered by confidentiality?
‘Or may be liable to pay…’ ( so over whose property can you hold a lien? And when can you bring a claim for failure to pay fees and against whom?
Are leading questions allowed at trial?
S. 149 Evidence Act: a leading question is one suggesting the answer which the person putting it wishes or expects to receive, or suggesting a disputed fact to which the witness is to testify as a fact which has already been established
S. 151 Evidence Act: leadings questions may be used depending on the circumstance, e.g. in cross examination an Advocate could ask the witness a leading question to make them testify on an area they have been reluctant to testify on
S. 150(1) Evidence Act: leading questions are prohibited in examination-in-chief and
re-examination, save for with the leave of the court
As a general rule, evidence obtained by leading questions is inadmissible, save for with the following exceptions:
A witness may be asked leading questions on normal and introductory matters, e.g. his name, age, address, occupation, etc.
Leading questions are permissible on facts not in dispute
Leading questions may be put to a hostile witness
When opposing counsel consents to use of leading questions on a particular matter
What is treason & the elements of treason?
The crime of betraying one’s country, especially by attempting to kill or overthrow the sovereign or government
You can be guilty of treason for the following:
Where one imagines/invents/devises/intends:
The death, wounding, maiming, imprisonment or restraint of the President;
To depose the President from his position by using unlawful means;
To overthrow the government; and makes these intentions known in any way
Where anyone owing allegiance to the Republic:
Levies war in Kenya against the Republic
Is adherent to enemies of the Republic
Instigates whether in Kenya or elsewhere any person to invade Kenya
Treason is a capital offence punishable by death
What is the procedure for resealing a grant?
Kenyan Citizen who passes away abroad:
If the situation concerns a Kenyan who dies abroad and is generally domiciled abroad, his domicile determines where he should apply for grant
Kenyan Citizen who is domiciled in Kenya:
The grant would be applied in Kenya
The Common wealth countries allow applications for resealing in any of its countries
The grant is then issued by the High Court
The issued grant is filed and minuted
The notice to the Kenya Gazette issued ( If there are no objections then letters are issued
Foreigner, dies abroad but property is in Kenya:
A a grant is applied in his country and filed in the High Court of Kenya for resealing
It must be a certified copy of grant issued by foreign country
The grant from foreign country is then filed and minuted
The notice to the Kenya Gazette is issued ( If there are no objections, letters are issued
A grant given by the High Court can be used in the foreign courts for resealing
A person should make the application either in person or through his authorised attorney ( Such application should be made in the High Court by way of Petition (Form 81/82) and supported by an Affidavit (Form 7)
In making the application one should produce the original/duplicate/certified copy of the foreign sealed grant or a power of attorney (if any)
What is the current situation as regards Nakumatt Holdings?
An administrator has been appointed
The administrator’s term was extended for one year on 22nd January, 2019
The administrator was given 4 months to ascertain the financial position of Nakumatt, and those accounts were to form the basis of the creditors meeting
However, it is noteworthy that the creditors (at a meeting last year) rejected the administrator’s recovery plan
What is an adverse inference and when is an adverse inference permitted?
This is a negative conclusion the court is allowed to draw in the following circumstances:
Unless he has good reason for withholding cooperation, a defendant’s refusal to respond to certain requests for information is capable of grounding an adverse inference if the tribunal of fact feels it appropriate to draw one.
A defendant’s silence, either during the investigative phase of criminal proceedings or at his trial, may ground an adverse inference. The judge may make adverse inferences if they think that doing so would result in a fair and proper conclusion, and are satisfied of 3 things:
When interviewed, the defendant could reasonably have expected to mention the facts on which he presently relies;
The only sensible explanation for the defendant’s failure to mention the facts in question was that he had no answer at the time or none that would stand up to scrutiny; and
Apart from his failure to mention those facts, the prosecution’s case against the defendant is so powerful that it clearly calls for an answer from him
What would you do if you were the Chief Justice?
Improve efficiency of the judicial system, e.g. have online registries, e.g. mentions can be abolished to free up court time, instead parties have to log in to the registry and upload documents to comply, and if they do not then they will automatically be fined (and the fine will be punitive enough to be a deterrent)
Improve efficiency of trials by having typographers in court, and this also helps with accurate record keeping especially for purposes of appeals
Increase sensitisation towards ADR, e.g. set up platforms to educate both lawyers and lay people to the importance and benefits of ADR ( for instance, by talking at major industry events (banking events, manufacturing events, etc.)
Make ADR a mandatory first step of dispute resolution
Who issues titles?
The Land Registrar
Tell us about issues in evidence law.
Article 6 in relation to the Supreme Court.
Article 6: a national state organ shall ensure reasonable access to its services in all parts of the Republic so far as it is appropriate to do so, having regard to the nature of the service
The fact that we only have the Supreme Court in one part of the country, i.e. Nairobi, may act as being contrary to what is averred in the constitution ( The Judiciary is a state organ which should ensure reasonable access to justice and so by the Supreme Court only sitting in one part of the country, this may act as a deterrent to people bringing their cases to the Supreme Court ( this acts as a bar to access to justice, albeit for purely administrative reasons
However, on the other hand, the Supreme Court does not deal with as many cases as the other courts due to its status and the fact that most issues need to be of public importance before being heard by the Supreme court ( it may therefore amount to a waste of public resources to have the Supreme Court sitting in different parts of the country when they may not have those many cases to hear
What are recitals in contracts?
Recitals refer to the "whereas" clauses that precede the main text of a contract
They provide a general idea about the contract to its reader such as, what the contract is about, who the parties are, why they are signing a contract
The first paragraph in the body of the contract can incorporate the recitals by reference and state that they are true and correct in order to avoid any later argument relating to the legality of the contract
The recitals are like the preamble and are situated at the beginning of the contract
You have a client against whom judgement in default of appearance has been entered. What steps do you take as a lawyer to represent them?
You make an application, by way of Notice of Motion, to have the judgement set aside under Order 10 Rule 11 of the CPR
The application must be supported by a supporting affidavit which adduces evidence as to why your client failed to turn up in court, e.g. flight tickets if you are saying that your client was out of the country
What are the special elements and considerations given to evidence given by a child in court?
Under S. 19 of the Oaths and Statutory Declarations Act: where a child is possessed with sufficient intelligence to understand to justify the reception of evidence, and understands the importance of speaking the truth, his evidence against any accused person in any proceedings (after the same has been reduced into writing) shall be deemed to be a deposition
Under S. 124 of the Evidence Act: an accused shall not be convicted solely on the basis of evidence given by a child and in the absence of corroborating evidence. This, however, does not apply to offences under the Sexual Offences Act
Therefore, evidence of children is given special care before being adduced against an accused party, and is only used where the child understands the nature of the evidence given as well as the importance of telling the truth. It is also important to try and have the evidence corroborated
Name some of the constitutional commissions.
Kenya National Human Rights and Equality Commission
Independent Electoral and Boundaries Commission
National Land Commission
Judicial Service Commission
Salaries and Remuneration Commission
Parliamentary Service Commission
What happens at a pre-trial conference?
Informal process where the magistrate/judicial officer, and all the parties, set up a session (not in court)
The purpose of this pre-trial conference is expedition of the trial (every accused person has a right to a speedy trial)
You agree on issues that are in contention ( this reduces the number of witnesses, the time to be taken for each witness, how to protect a certain witness’s identity, etc.
Kenya: the limitation we have in many of the courts is a lack of infrastructure
Give sample questions you would ask in examination in chief.
What?
When?
How?
Where?
Who?
When your client tells you he has killed someone, but someone else was convicted for the same offence, would you report this to the police?
Balance the interests of your client (i.e. client confidentiality) with the duty of honesty owed to the court & the duty of fidelity to the law
What is your opinion on refugees being returned?
The Kenyan government has ordered the UN Refugee Agency (UNHCR) to close the Dadaab refugee camp. It has not stated its reasons for this, but in the past it ordered similar closures on security grounds, claiming Dadaab could host terrorists from the Somali militant group Al-Shabaab.
The camp, established almost 30 years ago, hosts about half of Kenya’s refugees – 230,000 of almost 500,000. The majority are Somali refugees who fled their country’s civil war in the 1990s, or came during the famine in 2011. Other refugees come from South Sudan, the Democratic Republic of Congo and Burundi.
On announcing the closure of the camp, the government said that the refugees would be relocated. For most this means being moved to other camps, but for some this means repatriation: being sent back to their countries of origin.
The government made a similar announcement in 2015 which led to over 80,000 refugees repatriating in three years. But violence and hunger led to 30,000 fleeing back to Kenya.
The 2015 repatriation plan was later declared unconstitutional by the Kenyan High Court on the grounds that the targeting of Somali refugees is an act of group persecution, illegal and discriminatory. But the government hopes to implement the new plan regardless.
Those being repatriated rely on the UNHCR which, using money from wealthy donor states, facilitates their transport. The UNHCR says that it only helps with voluntary returns. It also claims that repatriation is desirable when conditions in home countries have significantly improved, or returning is much safer than staying in the country of asylum.
But some human rights organisations have criticised the UNHCR for not giving refugees enough information and not living up to its commitments to ensure a truly voluntary return.
This is a situation where you are balancing National Security and Human Rights
What is the difference between election and merger in agency?
Election: refers to a decision to pursue either the agent or the principal for a civil cause of action ( once a Plaintiff has elected to sue either party, they may not later choose to pursue the other party
Merger: it occurs once judgement has been granted against either the agent or the principal ( once a judgement is given against one, the cause of action against the other automatically dissipates (otherwise this may amount to unjust enrichment as the Plaintiff would be paid out twice)
What is the effect of pre-contract agreements in international contracts?
A pre-contract is a contract that prohibits a party from entering into a comparable agreement with someone else
Might act as a hindrance to international trade
Difference between submissions under S. 210 and S. 215 under the Criminal Procedure Code.
Section 210: at the close of the prosecution's case during a criminal trial, the defendant may submit to the judge or magistrate that there is no case for the defendant to answer. If the judge agrees, then the matter is dismissed and the defendant is acquitted without having to present any evidence in their defence
Section 215: at the close of both the prosecution and the defence cases, both parties make submissions to the court (summing up their arguments) before the judge retires to write the judgement
What is the difference between acquittal and discharge? (Cite cases)
Acquittal: the matter has been heard and the accused has been held to be innocent. He/she cannot be tried again on the same matter
Discharge: the matter has been withdrawn but this does not mean that the accused is innocent ( it simply means that:
Either the prosecution has withdrawn their case; or
The DPP has withdrawn the case
What is the procedure to amend the constitution?
Hold a constitutional referendum
Article 255: proposed amendment to the constitutional will be by way of a constitutional referendum if it touches on any of the following matters:
Supremacy of the constitution;
The territory of Kenya;
The sovereignty of the people;
The national values and principles of governance;
The Bill of Rights;
The term of the office of the President;
The independence of the Judiciary and the commissions and independent offices;
The functions of Parliament; and
The objects, principles and structure of devolved government
Article 256: procedure of amendment by way of a Bill:
Bill is introduced in either House of Parliament
Bill may not address any other matter apart from consequential amendments to legislation
Bill shall not be called for second reading in either House within 90 days after first reading of Bill in that house
Bill shall have passed Parliament when each House has passed the Bill in its second and third readings
Parliament shall publicise the Bill to facilitate discussion
Both Houses shall then submit to the President:
The Bill, for assent and publication; and
A certificate that the Bill has been passed in accordance with this Article
President shall assent to the Bill and cause it to be published within 30 days after being enacted by Parliament
If the Bill relates to any matters listed in Article 255:
The President shall request the Chairperson of the IEBC to hold a national referendum within 90 days for approval of the Bill; and
Within 30 days of the referendum being held and approval of the public being obtained, assent to the Bill
Article 257: procedure by way of popular initiative:
1 million registered voters must sign the popular initiative
The promoters of the popular initiative shall deliver the Draft Bill and supporting signatures to the IEBC to verify it is supported by 1 million voters
The IEBC shall then submit the Draft Bill to each county assembly for consideration within three months
If approved, the speaker of the County Assembly shall deliver a copy of the draft Bill jointly to speakers of both Houses of Parliament
It will be passed by Parliament if supported by a majority of the members of each House
If Parliament passes the Bill, it shall be submitted to the President for assent
If either House of Parliament fails to pass the Bill, the proposed amendment shall be submitted to a constitutional referendum and the conditions applicable in Article 256 shall apply
What is a Special Bill?
One that relates to election of members of the County Assembly or County Executive
It also concerns the Annual County Allocation of Revenue Bill
Difference between a Sale of Goods Agreement and Hire Purchase.
Sale of Goods Agreement: property in the goods passes as soon as the contract for the purchase of goods is entered into, regardless of whether time of payment or delivery or both is delayed
Hire Purchase: property in the goods does not pass until the purchaser has completed making all periodic payments and exercised his right to buy the goods
What is the burden of proof?
This is the obligation to prove (substantiate/establish) one’s assertion ( the obligation on a party at trial to adduce sufficient evidence to prove the claims they have made against the other party
May be on a balance of probabilities or beyond reasonable doubt
What is a law firm strategy?
A vision/plan of action for the law firm designed to achieve its long term and short-term goals
This may include: budgetary targets, profit targets, recruitment policies, market-share targets, market penetration initiatives, etc.
Has Cap. 28 in relation to insolvency been helpful in any way since its enactment?
Operate company as a going concern: The Act seeks to redeem insolvent companies through administration as opposed to liquidation ( The Act focuses more on assisting insolvent natural persons, unincorporated entities and insolvent corporate bodies whose financial position is redeemable to continue operating as going concerns so that they may be able to meet their financial obligations to the satisfaction of their creditors
Wider scope of protection for creditors: Previously, a bankruptcy petition would only be applicable where the debtor was domiciled in Kenya or within a year before the date of presentation of the petition, had ordinarily resided, had a place of business or carried on a business in Kenya. Section 15(3) of the Act now provides that an application can also be brought if the debtor is personally present at the date of application or had ordinarily resided or carried on business within three years of the date of application. The Act has therefore widened the scope to allow bankruptcy application to be brought against debtors ensuring that creditors’ interests such as those of lending institutions are protected.
Difference between mis-joinder and non-joinder.
Mis-joinder: joining the wrong [arty to the suit
Non-joinder: failure to join a party to the suit all together
Doctrine of recent possession (criminal litigation).
The ‘doctrine of recent possession’ is a misnomer as it is not a doctrine and does not refer to recent possession—it refers to possession of property that has been recently stolen
The ‘doctrine’ is simply part of the principles of circumstantial evidence
It applies only to offences of handling stolen goods and is relevant to proving the mens rea of the offence
The ‘doctrine’ was explained in the case of R v Abramovitch [1914–15] All ER 204 and lays down that when a person charged with handling stolen goods is found in possession of, or dealing with, goods that have recently been stolen, a jury may infer that he is guilty if he offers no explanation of his possession or they do not believe the explanation given
The jury is not bound to draw such an inference and must only do so if they are satisfied that he has committed the offence charged
What is the difference between pleading guilty to murder and pleading guilty to stealing?
Murder is a capital offence and robbery is not a capital offence
The social impact report would hold more value when it comes to murder
How does the law protect the right to life?
Abortion is outlawed under the 2010 Constitution
Murder is illegal under the Penal Code ( it is a capital offence
What is the difference between the AG and DPP’s roles?
ATTORNEY GENERAL
THE DPP
Is the principal legal advisor to the Government and he shall represent the National Government in any legal proceedings save for criminal proceedings
Is a state official who is supposed to be a completely independent and does not require consent of any person for the commencement of criminal proceedings
Under the control of and derives authority from the National Government
Not under the control of any person or authority
Nominated, and with the approval of the National Assembly, shall be appointed by the President
Nominated, and with the approval of the National Assembly, shall be appointed by the President
Mainly deals with civil disputes
Mainly concerned with criminal disputes
Anything you know about the Kenyan constitution.
It is the Supreme Law of the land ( all other laws are subordinate to and subjected to the constitution, in that all laws have to be interpreted in accordance with the constitution
The constitutional has a Bill of Rights which sets out a myriad of fundamental rights and freedoms that all Kenyan citizens are entitled to
It sets up Independent Offices and Commissions which are to act as oversight bodies
Procedure for entering into a valid Hire Purchase Agreement.
Draft a hire purchase agreement in writing
Executed by all parties
Contains a cash price at which the goods may be purchased
Agreement must show: amount of each instalment, period of repayment, description of goods, notice of hirer’s rights displayed in a prominent form, etc.
Agreement must contain a statutory notice setting out the rights of the hirer
The Agreement must be registered with the Registrar of Hire Purchase Agreements within 30 days of its execution ( period may be extended for delay, accident, inadvertence, etc.
Agreement cannot be enforced against the Hirer/Guarantor if not registered
Owner will not be able to recover goods from the Hirer
A copy of the agreement must be delivered or sent by registered post to the Hirer within 21 days of the date of agreement
A failure to do so means the owner will not be entitled to enforce the hire purchase agreement or any contract of guarantee relating to it
Can one bequeath a company in a will, why?
No – a company is a separate legal entity
The most that one can do is nominate a nominee for their shares in the company to be transferred to the nominee upon the death of the nominator
Companies normally have internal regulations/rules governing what happens to a member’s shareholding upon his or her death, e.g. in some cases the shares may automatically revert back to the company
Make a brief comment on the Consumer Protection Act versus the Sale of Goods Contract in relation to online transactions.
They both provide protection for consumers in online transactions as against goods of unmerchantable quality, lack of fitness for purpose, lack of goods adhering to the sample, etc.
In both situations, you will be allowed to return the goods bought online if you are not happy with them
Define and expound on the nature, effect and procedure for a deed poll?
Nature: a legal document that is used to change, rearrange, add or remove names
Effect: registration of a deed poll results in legal recognition of a new name by the Government
Procedure:
One must visit the Registrar General’s department and have a copy of the deed poll drafted
Sign the new name in the presence of the Justice of the Peace
Take the document to the Tax Department and have it stamped for payment of duty
Return the stamped document to the Registrar General’s department for recording
The new name is then gazetted
What consents are required for a purchase of land in Kajiado? What completion documents are required for this transaction?
Agricultural land or livestock areas:
West Pokot
Turukana
Marsabit
Mandera
Kajiado
Wajir
Garissa
Tana River
Narok
Samburu
Isiolo
Lamu
Consents required: Land Control Board (which meets every first Wednesday of the month for LCB meetings) and The National Land Commissioner’s Consent (to transfer the land, and consent to charge if you are charging the land to a financier)
Reason for LCB consent is so that neighbours to the agricultural property are aware of what is happening with the property and how the ecology may be affected
Our society is dependent on agriculture, which means that persons with legitimate expectations on the land go beyond the registered proprietor, especially in Rural Areas where land is registered in the name of the nominal head of the family. In the absence of intervention, the people on the land need protection and so the Land Control Act has set up the LCB which controls transactions dealing with agricultural land
Completion documents: (see above)
What are the essentials of a valid lease?
Parties: The parties to a lease are the lessor and the lessee. The lessor is also called the landlord and the lessee the tenant
Subject matter of lease: The subject matter of lease must be immovable property. The word "immovable property" may not be only house, land but also benefits to arise out of land, right to collect fruit of a garden, right to extract coal or minerals, hats, rights of ferries, fisheries or market dues. The contract for right for grazing is not lease. A mining lease is lease and not a sale of minerals
Duration of lease: The right to enjoy the property must be transferred for a certain time, express or implied or in perpetuity. The lease should commence either in the present or on some date in future or on the happening of some contingency, which is bound to happen. Though the lease can commence from a past day, but that is for the purpose of computation of lease period, as the interest of the lessee begins from the date of execution. No interest passes to the lessee before execution
Consideration: The consideration for lease is either premium or rent, which is the price paid or promised in consideration of the demise. The premium is the consideration paid of being let in possession
Sub-lease: A lessee can transfer the whole or any part of his interest in the property by sub-lease. However, this right is subject to the contract to the contrary and he can be restrained by the contract from transferring his lease by sub-letting. The lessee can create sub-leases for different parts of the demised premises. The sub-lessee gets the rights, subject to the covenants, terms and conditions in the lease deed
The ‘use clause’: this determines how the property can be used, e.g. what kind of business can be run from the premises
What is intermeddling and what are the consequences of the same?
The LSA at section 45 provides that no person should handle, take possession, dispose of, or otherwise intermeddle with the free property of a deceased person unless authorized by law so to do or by a grant of representation
Under section 45(2) (a), it is an offence to intermeddle with an estate without legal authorisation: punishable with a fine not exceeding Kshs. 10,000, imprisonment for 1 year, or both
S 45 does not apply where the intermeddler is the person required in law to deal with the affairs of the deceased e.g. an executor appointed under a will.
You will be answerable to the rightful executor or administrator to the extent of the assets that have been intermeddled with, after deducting any payments made in the due course of administration
Why do you want to become a lawyer?
Everyone gives their own individual answers.
Who do you look up to in the judiciary and why?
Sample answer:
We look up to former CJ Willie Mutunga
He developed the Mutunga Rules, i.e. for the practice and procedure for the enforcement of the Bill of Rights
The overriding objective of the rules is to ensure that the court is accessible, fair and efficient ( this contributed to the duty of lawyers to the court and to the law in that advocates are tasked with ensuring efficient administration of justice by expediting proceedings
Before the Mutunga Rules, the courts relied on the absence of such rules to argue that they lacked jurisdiction to enforce rights and fundamental freedoms that were alleged to have been denied, violated, infringed or threatened
Recent decision where Justice Mumbi Ngugi ordered a baby born out of a concubine to have the Father’s name on the birth certificate. What is the relevant law for that decision?
According to Justice Mumbi Ngugi, Section 12 of the Registration of Births and Deaths Act is unconstitutional and violates Article 27 of the Constitution
She points out that the statute only allows the names to be included with the consent of the fathers
The Attorney General has now been given 45 days to comply with the directive and make the necessary legislation
Under the Registration of Births and Deaths Act, a child’s mother cannot enter the name of the father of the child in the birth certificate without the father’s consent in the case of children born out of wedlock
Justice Mumbi Ngugi said we must protect the rights of every child regardless of the marital status of the child’s parents
What is the difference between Summons and Memorandum of Appearance?
Summons: are the procedure through which a party may be informed that a suit has been instituted against them. They are asked to defend themselves and failure to appear in court and defend themselves could result in judgment being made against them
Memorandum of Appearance: this is a response to summons ( may be filed by the Respondent themselves or the Respondent’s Advocate (stating that they are acting on behalf of the Respondent) and that they will appear in court on the prescribed date and time indicated in the summons
Misfeasance proceedings under Company Law (S. 324 of the Companies Act).
Under the Companies Acts and common law, directors of companies have duties not to:
Misapply company money;
Retain or misapply company property; or
Breach any duty of trust when dealing with company money.
What is a company prospectus?
A prospectus is defined by Section 2 of the Companies Act as “any notice, circular advertisement or other invitation, offering to the public for subscription or purchase any shares or debentures of a company”
The definition suggests that a prospectus embrace any document, notice, circular advertisement
What matters is not the name given to the document by its authors but its effect on the person reading it
If the person reading the document would conclude that he was being ‘invited’ to apply for any shares or debentures of a company, the document would legally be a prospectus even if it is not headed so
The offer must be made to the public
What is an International Bill of Exchange? What is ‘noting and protesting’?
A bill of exchange is a written order used primarily in international trade that binds one party to pay a fixed sum of money to another party on demand or at a predetermined date
Bills of exchange are similar to checks and promissory notes – they can be drawn by individuals or banks and are generally transferable by endorsements
A bill of exchange transaction can involve up to three parties (
The drawee is the party that pays the sum specified by the bill of exchange
The payee is the one who receives that sum
The drawer is the party that obliges the drawee to pay the payee
The drawer and the payee are the same entity unless the drawer transfers the bill of exchange to a third-party payee
Unlike a check, however, a bill of exchange is a written document outlining a debtor's indebtedness to a creditor. It’s not payable on demand and is usually extended with credit terms, such as 90 days. As well, a bill of exchange must be accepted by the drawee to be valid.
Bills of exchange generally do not pay interest, making them in essence post-dated checks. They may accrue interest if not paid by a certain date, however, in which case the rate must be specified on the instrument. They can, conversely, be transferred at a discount before the date specified for payment
When a promissory note or bill of exchange has been dishonoured by non-acceptance or non-payment, the holder may, within a reasonable time, cause such dishonour to be noted and certified by a notary public. Such certificate is called a protest ( the purpose of the certification by a notary public is to allow the holder of the dishonoured bill of exchange to have authenticated proof that the Bill of Note has been dishonoured, and so to institute legal proceedings
Can children enter into contracts? What is the relevant legal provision?
Though not provided for under the Law of Contract Act, as a general rule, a minor may not have the legal capacity to enter into a contract unless through guardians and trustees
The only exception is where a minor is purchasing necessities, as is provided for under S. 4 of the Sale of Goods Act
How to proceed when your client’s copyright is infringed, and he/she knows where to obtain the requisite evidence from the defendant’s premises?
An Anton Piller is a form of mandatory injunction which allows for search and entry into a defendant’s premises which can be granted at any time, before or after judgement is given
An Anton Piller when granted, allows the plaintiff to enter the premises of a defendant in order to search for articles and documents kept in the said premises and to inspect them physically and to even remove them for safe-keeping
The ‘element of surprise’ is a key factor in this instance as it prevents the potential destruction or concealment of materials which may be relevant in any pending or intended litigation that an Anton Piller order is usually obtained
An Anton Piller order may be granted at any stage of an action. It is flexible and it may even be granted before the issuance of the writ of summons and in some cases it may even be granted after judgment and solely for the purpose of aiding execution. An Anton Piller order must be expressed in clear and unambiguous terms and if the defendant disobeys the order, he or she will be in contempt of court
Considering that an Anton Piller injunction is only granted in the most exceptional of circumstances, the plaintiff must show that there is a valid cause of action. The essential prerequisites to be met before an application for an Anton Piller order is allowed are briefly as follows:
The plaintiff must show that it has a very strong prima facie case;
The plaintiff must show that the actual or potential damage to it is very serious; and
There must be clear evidence that the defendants possessed vital material which they might destroy or dispose of so as to defeat the ends of justice
In exceptional situations, courts may allow an ex parte application for an Anton Piller order to be made without notice to the defendant. The procedural requirements for an ex parte application are generally similar to that of a standard inter partes interlocutory injunction. In applying for an ex parte Anton Piller injunction, the applicant must make full and frank disclosure of all the material facts surrounding the case
To avoid abuse of an Anton Piller order, safeguards are in place to ensure that the order is carried out in a peaceful and orderly manner. Non-compliance of any of the procedural safeguards as listed in the order may render it void and is incapable of being remedied by subsequent compliance. Briefly, the procedural safeguards are as follows:
The order usually contains a term that before complying with the order the defendant is afforded the opportunity of obtaining legal advice, provided this is done forthwith
The order itself should be permitted to be executed only on working days in office hours, when a solicitor can be expected to be available
Unless this is seriously impracticable, a detailed list of the items being removed should be prepared at the premises before they are removed, and that the defendant should be given an opportunity to check this list at the time
Anton Piller orders frequently contain an injunction restraining those on whom they are served from informing others of the existence of the order for a limited period
Unless there is good reason for doing otherwise, the order should not be executed at business premises save in the presence of a responsible officer or representative of the company or trader in question
Service of the order is to be affected by a solicitor and not merely a representative and/or agent of the plaintiff
Service of the order must be affected in the presence of a Supervising Solicitor who is an independent party with the requisite experience in the operation of search orders
Upon the conclusion of the search, the Supervising Solicitor shall provide a report on the execution of the order
An Anton Pillar Order is applied for by way of Chamber Summons
Role of criminal law.
Deterrence
Retribution
Rehabilitation
Reconciliation (ADR)
Rylands v Fletcher.
Facts: the defendants employed independent contractors to construct a reservoir on their land. The contractors found disused mines when digging but failed to seal them properly. They filled the reservoir with water. As a result, water flooded through the mineshafts into the plaintiff’s mines on the adjoining property. The plaintiff secured a verdict at Liverpool Assizes. The Court of Exchequer Chamber held the defendant liable and the House of Lords affirmed their decision
It was decided by Blackburn J, who delivered the judgment of the Court of Exchequer Chamber, and the House of Lords, that to succeed in this tort the claimant must show:
That the defendant brought something onto his land;
That the defendant made a “non-natural use” of his land (per Lord Cairns, LC);
The thing was something likely to do mischief if it escaped;
The thing did escape and cause damage.
Strict Liability: is a standard of liability under which a person is legally responsible for the consequences flowing from an activity, even in the absence of fault or criminal intent on the part of the defendant. The mens rea does not have to be proved
How do you deal with a minor being sued?
An application is made to the court under Order 32 of the CPR for the court to appoint a next friend for the minor
The next friend then acts on behalf of the minor and has capacity to either institute or defend proceedings
Formation of a company.
Conduct a search: write a letter to the Registrar of Companies to confirm if the proposed name is available for registration. Once cannot register an existing name that is prohibited, e.g. names related to the national anthem, names involving the name ‘Kenya’, etc. If the name is available and acceptable, it is reserved for 21 days
Draft the Memorandum and Articles of Association: these collectively constitute the constitution of the company
The Memorandum should also contain the names of the subscribers of the shares and how many shares each subscriber holds
The Articles deal with the internal affairs of a company and its day to day operations, e.g. address issues of shares, meetings, directors, etc.
Pay stamp duty: this is done at the Companies Registry. Must fill out a stamp duty form indicating the nominal capital of the company, on which basis the collector will assess the amount of stamp duty payable which is in relation to the nominal capital indicated. Once paid, your form is stamped
File the remaining documents:
Particulars of the directors and secretary
Particulars of the registered office ( street name, plot number, address. This is important for service of legal documents
Certificate of compliance from an Advocate stating all the requirements have been complied with
Commencement of business:
A private company may commence business immediately after registration ( business licences/permits from the local authority/government agency may be the only requirement
Public companies are only entitled to commence business when:
A prospectus is issued for shares; or
A statement in lieu of the prospectus is prepared
How to commence a criminal and civil suit.
Criminal suits:
Complaint to the police;
The police ascertain whether there is a legitimate offence that has been committed;
The matter is taken to the office of the DPP if there is a claim to be answered, and a charge sheet is drawn up;
An application is made for a warrant of arrest;
The individual is arrested and brought into custody;
The person is then presented in court within 24 hours;
The charge is read to the accused and the plea taking process begins.
Civil suits:
File your pliant/memorandum of claim + supporting affidavit + list of documents + documents + list of witnesses + witness statement in court
Serve these documents, together with a summons to enter appearance on the Defendant/Respondent
Why do S. 3 of the Law of Contract and S. 97 of the Evidence Act demand that a transaction relating to land must be in writing?
Evidentiary function: encourage precision and recording of material facts, and this helps avoid disputes as to what interest has been or is intended to be conveyed
Protective function: gives parties a chance to reflect and think on the deal before executing a binding contract
Forensic function: providing simple yet conclusive evidence of the existence of an agreement
What are controlled transactions?
Transactions dealing with a conveyance over agricultural land
Such transactions require the consent of the Land Control Board (see above for reasons)
How does a cohabitee claim her rights?
Cohabit is defined in section 2 of the Marriage act as: ‘...to live in an arrangement in which an unmarried couple lives together in a long- term relationship that resembles a marriage’
Section 6(1) of the same Act outlines the different kinds of marriage to only include Christian marriages, civil marriages, customary marriages, Hindu marriages and Islamic marriages. This precludes arrangements such as cohabitation from the marriage institution. Cohabitees however, may have a remedy in common law with the ‘presumption of marriage’.
In Hortensia Wanjiku Yahweh v Public Trustee, it was stated: “the presumption is nothing more than an assumption rising out of long cohabitation and general repute that parties must be married irrespective of the nature of marriage actually contracted.”
In the case of Beatrice Chelangat Cheluget v Jonathan Manyona Gwako the court established that there was no evidence of a customary marriage. In assessing whether there was a presumption of marriage arising from cohabitation, Justice Majanja applied two criteria: the presence of children born out of the cohabitation and the period of the cohabitation. The latter criterion does not denote a specific period of time, leaving it to the discretion of the court.
Thus, a cohabitee may have no redress under the Marriage Act but may have redress under the common law presumption of marriage ( if so, she may be able to claim as a wife under Section 29 of the LSA
What is the format of a legal opinion?
Facts
Issue
Rule
Analysis
Conclusion (advice)
What are the characteristics of a will?
Oral will: (S. 9 LSA)
Should be made in front of 2 witnesses
Has a duration of 3 months (except for if it is a privileged will because you are in active duty in the armed forces or the military)
Written will: (S.11 LSA)
In writing
Signed by the testator
Witnesses by 2 competent witnesses and attested
In both situations, the testator must have capacity (i.e. be of sound mine) and be of full age (i.e. above the age of 18)
What is the procedure for conducting a search?
Log onto the e-citizen portal and sign up
Click on Ministry of Land, Housing & Urban Development link and choose the land search option
Enter the title number and fill the online land search form Kenya and submit
Confirm the details and proceed to pay using the available payment method which can be a debit card, credit card, M-Pesa, or bank transfers
Once the payment is confirmed, the applicant can proceed to print the results, and if you choose not to, the information will always be available on the portal anytime you log in
How do you institute a debt claim?
Same procedure as instituting a civil claim
Procedure for maintenance of an ex-spouse.
Subordinate Courts (Separation and Maintenance) Act
Section 4:
Powers of the court to give orders on legal custody and provision by the Husband
A provision that the husband shall pay to the applicant personally or for her use to any officer of the court or third person on her behalf such monthly sum as the court, having regard to the means both of the husband and wife, considers reasonable
Section 10:
Where on the hearing of an application for an order of maintenance the application is adjourned for any period exceeding one week, the court may order that the husband do pay to the wife, or to an officer of the court or third person on her behalf, such weekly sum as the court considers reasonable in the circumstances of the case for the maintenance of the wife and any child or children in her custody until the final determination of the case: Provided that the order directing such payment shall not remain in operation for more than three months from the date on which it was made
The procedure is to move the court by way of a Petition under the Subordinate Courts (Separation and Maintenance) Act
What is the difference between Judicial Separation and Divorce?
Judicial separation is always treated to be as an alternative to divorce
The basic difference between Judicial Separation and divorce is that divorce brings the marriage to an end whereas judicial separation does not
The legal status of judicial separation is different from being divorced and married. In case of judicial separation, the court orders for the prohibition on cohabiting together, but does not end the obligations of marriage. Both husband and wife still remain in the same ties of marriage obligations
In case of divorce the parties are allowed to get remarried, but in case of Judicial Separation it is illegal to get remarried
Judicial separation has 2 objectives:
You can seek judicial separation when divorce is not available, e.g. where the parties have not been married for 3 years
The rationale: marriage is the basis of family and society, and so you do not want a situation where people walk in and out of marriage at will
The court does allow a leave of court to get divorced before the lapse of 3 years, but this is only in very exceptional circumstances
There are parties who do not want to sever relations completely and would just like ‘time off’ to reflect
When judicial separation is pronounced by the court, there must be an order of court separating people (you cannot just pick up and leave)
What factors does a court consider when granting alimony?
The recipient’s financial needs
The person’s ability to pay
The standard of living of the recipient (which he/she had become accustomed to during the marriage)
Each party’s ability to earn and self-support
Difference between Donoghue v Stevenson and Rylands v Fletcher.
Donoghue v Stevenson: sets precedent for cases in which a duty of care may be imputed in to a relationship, as well as determining how that duty of case may be breached in cases of negligence
Rylands v Fletcher: sets the precedent for establishing a private nuisance, as well as situations in which strict liability may arise regardless of fault or negligence
Distinguish between assault and battery.
Battery: intentional application of unlawful force upon another person
Battery is actionable per se, i.e. there is no need to show that there was actual harm caused or that there was even intent to cause harm
Any unwanted physical contact amounts to battery – a pat on the back, a practical joke, an unwanted kiss, etc.
However, the force must exceed “physical contact which is generally acceptable in the ordinary conduct of daily life” and must be applied to the claimant by immediate and direct means
The defendant should also not have any defence for the tort to be valid
Assault: assault is an act which causes another person to apprehend immediate, unlawful infliction of force on his person
Assault lies not in physical contact, but in the anticipation of such contact
Assault will almost always be followed by battery (unless third party intervenes, defendant misses the target, defendant changes their mind, etc)
An actionable assault therefore requires:
Defendant intends that the claimant apprehends the application of unlawful force
Claimant reasonably apprehends the direct and immediate infliction of unlawful force
Defendant has no lawful justification or excuse
How do you commence bankruptcy proceedings?
Bankruptcy is for natural human beings while insolvency is for companies
First, a creditor must have demanded payment from the debtor which has not been honoured for 21 days
If so, the debtor moves the court by way of a petition to adjudge the debtor the bankrupt
Such particulars of the debtor’s creditors and of the debtor’s debts and other liabilities and assets as may be prescribed by the insolvency regulations; and
Such other information as may be so prescribed
If the court is satisfied with the financial statements, the court will appoint an authorised insolvency practitioner in relation to the debtor
The insolvency practitioner will inquire into the debtor’s financial affairs and submit a report to the Court
The report will either state that the debtor is willing to enter into a voluntary arrangement with the creditors, and if so, it will state a date and time of the creditor’s meeting to reach such an arrangement
If the debtor is not agreeable to a voluntary arrangement with the creditors, then a creditor may move to the court for appointment of an insolvency practitioner as an interim trustee over the affairs of the debtor. The interim trustee shall:
Take control of any property of the debtor;
Sell any perishable property which is likely to fall rapidly in value; and
Control the affairs and property of the debtor as prescribed by the court
Bankruptcy proceedings commence
What are the reforms in bankruptcy law?
https://www.oraro.co.ke/2018/10/17/the-insolvency-act-2015-the-impact-on-creditors-and-their-right-to-realise-securities/
How do you address a female Judge, a male Judge and your colleague in court?
Female: My Lady
Male: My Lord
Colleague: Learned friend/Learned Colleague/Learned Senior
What is the process of transferring agricultural land?
It is a controlled transaction and therefore you need consent from the Land Control Board (under the LCA) before effecting any transfers over the land
How do you summon a witness outside of the jurisdiction?
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
Return of service: Contents of the return of service will indicate;
Mode of service used;
Time of actual service;
Manner in which the service was effected;
Name and address of the person identifying whomever you are serving
If is it not a commonwealth country:
The summons shall be sealed at the High Court and shall be forwarded to the Minister for Foreign Affairs
The Ministry of Foreign Affairs shall transmit it through the diplomatic channel to the government of the country
The receiving High Court in the foreign country shall give an official certificate on oath stating that they have been served, and this shall be equivalent to an Affidavit of service ( The certificate shall be sent through the diplomatic channel back to the High Court in Kenya
What determines capacity to sue?
Age ( if not of full age, this will be through a next friend (when you are suing) or guardian ad litem (when you are a defendant); or
Company ( that has been incorporated in accordance with the Laws of Kenya and so has capacity to sue and be sued
What happens to a contract in the event of war?
Frustration of contract in the following possible ways:
The sub-stratum of the contract is completely destroyed
The sub-stratum of the contract is possible to perform, however, the contracting party is a member of the enemy state and so it would be illegal to perform the contract and benefit either the enemy state or a member of the enemy state
What are committal proceedings?
This is a preliminary hearing
Committal proceedings are held to determine whether, in the case of more serious criminal offences, there is sufficient, evidence to require the defendant to stand trial
Committal proceedings are generally held before a magistrate, who hears evidence from the prosecution which is recorded and can be used at the trial
After hearing the evidence, the magistrate must determine if there is sufficient evidence to justify the defendant being committed for trial. If there is insufficient evidence, the magistrate may discharge the accused person
This does not amount to an acquittal: it is still open for the prosecution to obtain further evidence and bring subsequent committal proceedings, or proceed direct to trial by way of an ex officio indictment
Difference between adversarial and inquisitorial systems.
Adversarial systems:
Common law countries use an adversarial system to determine facts in the adjudication process
The prosecution and defence compete against each other, and the judge serves as a referee to ensure fairness to the accused, and that the legal rules criminal procedure followed
The adversarial system assumes that the best way to get to the truth of a matter is through a competitive process to determine the facts and application of the law accurately
Inquisitorial system:
Is associated with civil law legal systems, and it has existed for many centuries ( It is characterized by extensive pre-trial investigation and interrogations with the objective to avoid bringing an innocent person to trial
The inquisitorial process can be described as an official inquiry to ascertain the truth, whereas the adversarial system uses a competitive process between prosecution and defence to determine the facts
The inquisitorial process grants more power to the judge who oversees the process, whereas the judge in the adversarial system serves more as an arbiter between claims of the prosecution and defence
What is judicial notice?
Recognised by S. 59 and S. 60 of the Evidence Act
Judicial notice is defined as what judges see or the liberty accorded a judicial officer acting as such to recognise the existence or non-existence of certain facts or phenomena without calling for evidence
Examples of judicial notice:
The names of Judicial Officers
The territories comprised in the commonwealth
The meaning of English words
The ordinary course of nature
The rule of road, land and sea
The common seal of Kenya
What are presumptions?
These are inferences that the court may/could/must draw over a particular issue notwithstanding the fact that there is no evidence or there is no sufficient evidence
There are 3 categories of presumptions:
Presumptions of fact: inferences that may be drawn upon the establishment of a basic fact, e.g. a court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it
Rebuttable presumptions of law: these are inferences that must be drawn in the absence of conclusive evidence of contrary, e.g. the presumption of innocence
Irrebuttable presumptions of law: these must be drawn no matter how much evidence exists to the contrary, e.g. if the accused is below the age of 8 years, it will be assumed that he/she had no capacity to commit the crime
What is the position in Kenya as regards advertising, touting and undercutting by lawyers?
Advertising: Advocates are allowed to advertise their services according to the Advocates (Marketing and Advertising) Rules (or else be liable for professional misconduct)
The advert may contain:
Identity of the Advocate
Identity of the Advocates firm
Date of admittance to the Roll of Advocates
Address and contact information of the firm
Hours of business
Language used
Professional qualifications
Any contribution to a legislative Bill or legal article or legal education
The advert must be in the following form if the Advocate chooses to advertise:
In a non-legal or non-professional directory
In a legal or professional directory
On a website or other digital platform on the internet
In print media, including newspaper, magazine, journal ( only 4 times in a calendar year and the advert must measure 0.21 metres * 0.297 metres
Touting: this is promoting your services without being disclosed that you are being paid to do so ( means a person who procures in any consideration of any remuneration, moving from any Advocate or from any person on his behalf, the employment of such Advocate in any legal business or who proposes to any Advocate to procure, in consideration of any remuneration moving from such Advocate ( not allowed in Kenya and amounts to professional misconduct
Under-cutting: rule 3 of the Advocates Practice Rules states that no Advocate may hold himself out or allow himself to be held out directly or indirectly as being prepared to do professional business at less than the scales laid down by the ARO ( under-cutting constitutes professional misconduct
What happens to the accused when arraigned in court?
The accused takes a plea
Explain the defence of necessity in murder cases.
The elements of the defence of necessity are:
The act is needed to avoid inevitable and irreparable evil;
No more should be done than is reasonably necessary for the purpose to be achieved; and
The evil inflicted must not be disproportionate to the evil avoided.
However, the defence of necessity (or duress) is not available for murder
What are the defences to murder?
Loss of control:
There are 2 elements to this:
The loss of control must have been caused by a qualifying trigger; and
A person of the defendant’s age and sex with a normal degree of tolerance and self-restraint would have acted the same way
The courts are looking for a person who knows what they are doing, but has severely impaired powers to restrain themselves from acting
Qualifying trigger includes: fear of serious violence, an extremely provocative act, or a combination of both
The loss of self-control can root from grief, despair, moral outrage or even depression
Diminished responsibility:
There are 2 elements:
Abnormality of mental functioning arising out of a recognised mental condition
The abnormality substantially impaired his/her ability to understand the nature of his or her conduct, form a rational judgement and exercise self-control
The defendant’s abnormality of mental functioning should provide an explanation ‘for defendant’s acts and omissions in doing or being a party to the killing’
This seems to imply that the defendant’s mental condition must be a cause of the killing.
Provocation
Insanity
Automatism
What can a Judge do if a witness refuses to testify?
Hostile witness: one who is giving evidence that is detrimental to the case of the party who called the witness
Refractory witness: one who refuses to be sworn, refuses to answer questions, refuses to produce any documents, refuses to sign his deposition without offering sufficient reason for his refusal or neglect
How to deal with a refractory witness:
The court may adjourn the case for any period not exceeding 8 days
In the meantime, the refractory witness may be committed to prison unless he sooner consents to do what is required of him
If after adjourning the case, the witness still refuses to do what he is supposed to do, the court may again adjourn the case for the same amount of time until the person consents to do what is required of him
If the witness still refuses to testify, the witness may be punished in an appropriate manner and the court may continue and dispose of the matter using other evidence available
What makes a Judge consider whether or not to grant bail?
If there is an objection by the prosecution, the court will have to consider whether to grant bail or not ( right now, there is no offence which is not bailable
When the prosecution is objecting to granting bail, they present an Affidavit by the Investigating Officer/an officer who has been involved in the investigation to the court
The reason for the Affidavit is to give the accused person an opportunity to challenge what is in the affidavit (e.g. the accused person can cross-examine the investigating officer for the court to see if there is any truth in the averments of the affidavit)
Taking a plea in court.
The Magistrate reads the charge to the accused person
The accused person then pleas to the charge:
Plea of not guilty
Plea of guilty (accept the charge)
The accused person keeps quiet (which amounts to a plea of not guilty)
If the accused agrees to the charges as read, then the Judicial Officer will enter a plea of guilty
Once a plea of guilty is entered, then the facts are read to the accused person by the Prosecutor ( the facts are a summary of the material evidence that the prosecution has against the accused
The accused person is then asked by the court if the facts as read out are correct or not correct
If the accused person says the facts are correct, it is at this stage that the Magistrate will convict the accused person on his own plea of guilty ( i.e. the conviction does not come at the point of taking a plea, but it comes after the facts are read and accepted by the accused
After the individual is convicted, the prosecution presents to the court the accused’s criminal record
The court can then ask for a victim impact assessment/statement or a probation report
There is then mitigation (which is mandatory) ( appeals have been allowed because a judge did not allow mitigation
The court then, after mitigation, finally proceeds to sentencing
In what ways may a criminal proceeding be terminated?
Withdrawal of the complaint by the complainant
Withdrawal of the complaint by the prosecution, e.g. where there is the death of the accused person (this is a discharge, not an acquittal)
Withdrawal of the complaint by the DPP ( Nolle prosequi (this is a discharge, not an acquittal). However, if the complaint is withdrawn by the DPP after the defence presents their case then this is an acquittal
When the accused has no case to answer
If on the date of trial, the accused appears but the complainant fails to turn up (without a good reason given by the prosecution), the court may acquit the accused (acquittal)
When the parties engage in ADR (e.g. reconciliation under S. 176 CPC)
Conviction
Acquittal
Note: The Sexual Offences Act is the only act which prohibits withdrawal of the complaint by the Complainant. There is a task force that has been set up because this gives rise to a problem, as the Constitution says that all cases can be settled, and so technically that provision of the Act may deemed to be unconstitutional
Current case:
Mr. Nyakundi was charged with manslaughter
However, there are allegations that the officer altered the evidence to make it seem like it was manslaughter when it was actually murder
The mother (whose son was killed by her husband) has gone to the High Court and said her rights under the Victim Protection Act and said that her rights as a victim will be infringed if this case is withdrawn
The charge of manslaughter cannot be substituted for a charge for murder in the Magistrate’s Court because the Magistrate’s Court does not have jurisdiction to deal with murder cases (and the Magistrate’s Court does not have jurisdiction to transfer cases)
The DPP cannot bring separate charges in the High Court because of double jeopardy
Why are the hands of the DPP tied, what are the differences between the current constitution and the old constitution?
The previous constitution gave the DPP absolute powers, e.g. could walk into any court at any time and withdraw any charge
The powers of the DPP under the current constitution has limited powers, i.e. he has to give reasons to withdraw a charge and the court must agree
What is the obvious discrimination under the Sexual Offences Act? What are the provisions under the Act which are unconstitutional?
The application of the Sexual Offences Act to defilement cases is discriminatory
The discrimination comes in because defilement has been described as ‘an act which causes penetration with a child’, and the word ‘penetration’ has been interpreted by the courts in a manner that goes against the male gender because it is assumed that the female gender is incapable of ‘penetrating’
This is because of the definition that penetrating has been given as being the ‘partial or complete insertion of the genital organs of a person into the genital organs of another’
The Act is also discriminatory in cases of rape because for rape it is caused by committing an act ‘which causes penetration by his or her genital organs’, yet penetration has been given a definition such that it is only applicable to being penetrated by the male genital organ
What is the sequence of calling witnesses?
Complainant and his witnesses are heard first
What is an Oath?
Every witness has to give evidence upon oath or affirmation
The witness has to be sworn in on a holy book
The oath takes the following format: ‘I do swear that the evidence I shall give in this court, touching the matter in issue shall be the truth, the whole truth and nothing but the truth. So help me God’
The accused person need not take an oath because an accused person has the right to remain silent/the right not to self-incriminate
A witness may decline to be sworn for lack of religious belief
No religious belief shall not affect the validity of the oath ( a witness may be allowed to make a solemn affirmation instead of taking an oath
What is the best way to test the credibility of evidence?
Through cross-examination
What is a Prima Facie case?
If it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence then it amounts to a prima facie case
Bhatt v Republic: where the court defines a prima facie case as one where a reasonable court directing its mind to the law and evidence would convict if no explanation were offered by the defence ( includes the court making a ruling as to whether the defence has a case to answer or not
Once a ruling that a prima facie case has been established is entered, the court shall again explain the substance of the charge to the accused. This is to prepare the accused person or to remind him of the charge
At this point, the court will put the accused person to his defence and the defence case starts
The defence has the option to: give the court an unsworn statement, give the court a sworn statement, i.e. testify, or remain silent
The accused must be reminded that he has the right to remain silent, and also the right to call witnesses (regardless of which of the above three options the accused chooses)
The accused person testifies first, and then each of his witnesses after him
After this, the defence closes its case
At the closure of the defence case, submissions are filed (this is after both parties have presented their case) ( submissions are not mandatory
At this point, the court retires to write a judgement and determines whether the prosecution has proved the charge against the accused person beyond all reasonable doubt
If the court finds that the prosecution has not proved the charge beyond reasonable doubt, then the accused person is acquitted
If the court finds that the prosecution has proved the charge beyond reasonable doubt, then the accused person is convicted
After the accused person is convicted, then the prosecution then presents the court will the accused person’s criminal records
The defence will then provide the court with mitigating factors
Finally, the court will pass a sentence
What is the purpose of sentencing?
Deterrence
Retribution
Rehabilitation
Protection of the public
Symbolic denunciation (i.e. reaffirm validity of moral attitudes)
What are mandatory sentences?
We no longer have mandatory sentences, e.g. the death sentence is no longer mandatory
The reason for this is because of the separation of powers ( the laws that created those sentences were created by the Legislature, and the argument is that the Legislature cannot dictate to the judiciary what sentences to impose
If you have mandatory sentences then you are fettering the discretion of judicial officers, which is given to the judiciary by the constitution
What is the criminal trial process?
The accused is arraigned in court
The charge is read to the accused by the Magistrate in a language that the accused understands
The accused takes a plea of: guilty, not guilty or stays silent
If the accused pleads not guilty, the matter proceedings to trial
However, if the accused pleads guilty:
The prosecution reads the facts of the offence to the accused
The accused is then given a chance to deny, accept or explain the facts
If the explanation or such as to confirm the offence, then a conviction of guilty is entered by the Magistrate/Judge ( at this point, the accused loses the right to appeal the conviction
If the explanation is such as to provide a defence or deny criminal culpability, then the accused is given a chance to vary his plea
What documents are admissible in evidence? What is a primary, secondary and private document?
Parol Evidence: the parol evidence rule the admission of certain evidence concerning the terms of a written agreement. It operates on the assumption that whatever is included in a signed agreement contains the final and complete agreement of the parties. It therefore could bar evidence of any agreements made before or at the same time as the actual written agreement, which were not included in the final written agreement. There are exceptions to the parol evidence rule and it is usually considered an issue of substantive law, rather than a pure evidentiary matter. However, it can come into play to bar documentary evidence indicating the presence of additional agreements
Authentication: authentication is essentially showing the court that a piece of evidence is what it claims to be and documentary evidence can be authenticated similar to other real evidence. However, the failure to properly authenticate a document could result in the court denying its admissibility. A document can be authenticated when a party admits in the record to its existence or when a witness with personal knowledge confirms that the document is what it claims to be or confirms handwriting or other aspects of the document
Best evidence: The best evidence rule can be used to deny the admissibility of copies or replications of certain documents. Under this rule, when the contents of a written document are offered in evidence, the court will not accept a copy or other proof of the document's content in place of the original document unless an adequate explanation is offered for the absence of the original
Hearsay: documents can be considered hearsay if they contain statements made out of court (and not under oath) and where they are being used in court to prove the truth of those statements. While there are many exceptions to the general rule prohibiting hearsay, if a document does not meet an exception, the court can prevent its admission as evidence
How do you examine an expert witness?
When the court has to form an opinion on a specific topic, it may accept an opinion of an expert as an exception to the general rule of evidence law that opinion evidence is inadmissible
The opinion of expert witnesses is not binding on the court; the court will ultimately have to form its own conclusions based on the totality of the evidence presented
There are special considerations that a trial lawyer must have regarding expert witnesses both in examination in chief and cross examination ( there is a 4-step process for examination in chief of an expert witness:
Ensure that the witness is sufficiently introduced:
For ordinary witnesses of fact, it is enough to ask their name, what they do, etc.
However, for expert witnesses, you must persuade the court that this witness is indeed an expert in the field he/she holds him/herself out to be
Expertise can be acquired by formal learning or experience, or both, formal education and experience
Ask your witness a series of questions designed to persuade the court that this person is truly an expert in this field, and therefore, their opinion should really matter (e.g. questions about their experience, their institutional affiliation, publications, etc.) ( as much as is reasonably necessary
Not all witnesses will be asked the same questions; it will depend on the witness you have before you ( a certain witness may be so well known to the court that it is not necessary to draw a detailed biographical introduction of the witness; based on the concept of judicial notice, the court can take judicial notice of the expertise of a certain witness
Establish the connection between the expert witness and the case at hand:
Ask a series of questions to show the court how the witness is connected to the case, i.e. if your witness is a doctor, did this doctor treat the patient?
Sometimes you may call an expert witness who is not directly connected to the case, i.e. the person was not involved directly in the case (e.g. if the doctor did not examine the patient) ( e.g. you may call a witness who is an expert on foreign law, that person does not have to have been involved in your case; you are simply calling him/her to enlighten the court about a certain area of study
Elicit the expert opinion:
What were the findings/observations/conclusions of the expert? What is the expert opinion of the witness about the subject matter?
E.g. if the witness examined the patient, what were the professional findings of the doctor?
Let the expert witness explain to the court in simple, lay-man language, the meaning, the implications, the effect, the consequences of the findings/opinion:
Must be in simple lay-man terms because the court is not itself necessarily an expert in the said field
Many experts have a predilection for using complicated language
The facts elicited by the expert witness may be pertinent to the quantum of damages (S. 13 Evidence Act)
How do you produce documents in court?
Your Honour, I would like to refer the witness to a certain document
What is this document?
What is depicted in the document? (Answer – ‘it is a photograph of a bag’)
When was the photograph taken?
Who took the photo?
Why was the photo taken?
What would you like to do with this photograph?
Your Honour, I now request that this document be marked as Prosecution Exhibit No. 1
Why does it not matter that the accused gives an unsworn statement or has the right to remain silent?
The accused has a right not to self-incriminate himself
Under our constitutional dispensation, the prosecution has the obligation to prove the charge against the accused ( the burden of proof never shifts from the prosecution
Even if the accused person, assuming, says something which shows that he actually committed the offence, even then the court must be persuaded that the prosecution has adduced enough evidence to prove that the offence was committed
Thursday, September 5, 2024
Oral Exam Questions
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