The kenyan legal issue 1


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The public image of the Kenyan Judiciary is at test yet again and its a little wonder whether its women that don’t have a place in the Judiciary or is it transparency and honesty itself.It’s only you to find out on

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The kenyan legal issue 1

  1. 1. Breach of promise to Marry: It’s Legality November 2013 Issue #1 Also inside: Why Raila and Kibaki Government was Successful Judiciary watch: Word from the Chief Justice main feature: DO WOMEN HAVE A PLACE IN KENYA’S JUDICIARY?
  2. 2. generation of legal minds, and sometimes it’s not until we compare our current achievements with how things were in the past that we fully appreciate just how much progress has been made, and progress, believe me, is what KENYAN LEGAL is here to make. T here’s all kinds of Brilliance in the world; some will give you trophies, some will fill your bank accounts but there’s a bigger kind of brilliance, that which is nurtured and practiced constantly to near perfection, and makes a difference not only to oneself but to the world abode. By what I mean not only individually but also in terms of the whole legal industry as a whole, the Kenyan legal system is at its prime and the best way to keep this going is to involve in particular the coming I also wish to be particular in appreciating the committed individuals that contributed towards this publication; it’s in not question that this is your success, and for those who never got the chance, here it is! Am really thankful, Keep up you great work! As once stated: “The size of your success is measured by the strength of your desire; the size of your dream; and how you handle disappointment along the way” this is the dream and we’re headed towards Success. That said, as well as with great happiness and humility, it’s also with a sense of pride that I welcome you to the newest success in town, the very first publication of “the KENYAN LEGAL” magazine. REGARDS, Michael Michael Opondo O. Managing Editor, KENYAN LEGAL ©Kenyan Legal 2013 Page 2
  3. 3. CONTRIBUTORS Sheila Mokaya, K.U.S.O.L Otieno Arnold O., K.U.S.O.L Caren Kerubo, K.U.S.O.L Victor Kiamba, Advocate of the High Court Gabriel Pelu, JKUAT Kenneth Kimathi, K.U.S.O.L Sylvia Anne A., U.o.N Henry Omukubi, K.U.S.O.L Nelson Otieno, K.U.S.O.L Michael Opondo O., K.U.S.O.L Cover photo by: Patricia Ngare, Model/Law Student, Kenyatta University. Whilst every effort has been made to ensure the accuracy of the information in this magazine, the authors, publisher and editor accepts no responsibility for any loss, financial or otherwise by any person using this publication Copyright © 2013 by Kenyan Legal All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law. For permission requests, write to the publisher, addressed “Attention: Permissions Coordinator,” at the address Copyright protected by: Creative Commons 2013 ©Kenyan Legal 2013 Page 3
  4. 4. Inside this issue Case Of The Month............................................................................................................5 Third Party Rights In Marriage?.........................................................................................7 The Rule Of Law In Kenya ..................................................................................................9 The Law On Third Party Proceedings...............................................................................11 Sausage Machines? .........................................................................................................14 Criminal Responsibility For Omissions: Negligence In Scope...........................................16 Do Women Really Have A Place In Kenya’s Judiciary? ....................................................19 Why Raila And Kibaki Government Was Successful ........................................................21 Where Is Kenya Headed To .............................................................................................23 Legality Of Breach Of Promise To Marry .........................................................................24 Carla’s Diaries..................................................................................................................26 The New Constitution And The Youths ...........................................................................27 Legal Positivism: Is It Or Not In Kenya? ...........................................................................29 Tyranny Of The Urgent? ..................................................................................................32 The Law Of Contract: An Introduction.............................................................................33 Criminal Justice And Human Rights: Death Penalty ........................................................36 Judiciary Watch ...............................................................................................................38 Our New Brand Identity – A New Promise To The Mwananchi ........................38 We Don’t Take Public Support For The Judiciary For Granted..........................40 ©Kenyan Legal 2013 Page 4
  5. 5. Case of the month REPUBLIC OF KENZA IN THE COURT OF APPEAL OF KENZA AT NAIRI (NAIRI LAW COURTS) CONSTITUTIONAL APPLICATION No. 20 OF 2012 BETWEEN MUNGA……………………………….APPLICANT AND THE HON. ATTORNEY GENERAL………RESPONDENT AND IN THE MATTER OF ARTICLES 10, 20, 22, 29(d), 39, 50, 258(l) and 259 of the CONSTITUTION OF KENZA The appellant Joel Munga was 20 years ago arrested, processed, charged and convicted of murder contrary to section 203 of the penal code, Cap. 63 of the Laws of Kenza. He was sentenced to death pursuant to section 204 of the said legislation. After ten years of service of his sentence was mutated to life imprisonment through a presidential decree. After 19 years of service, new and compelling evidence exonerating the appellant was discovered. The accused petitioned the court for his release. The prosecution did not raise any objections against the petition. The Director of Public prosecution observed that “a great injustice had occurred”. The appellant is seeking damages to the tune of Kshs. 76 million, for “a lost life.” The High Court rejected the argument that his rights had been violated arguing that there was no evidence to the effect that the trial was anything but fair and that at the time of his conviction, the prosecution had diligently demonstrated its case beyond any reasonable doubt, solely relying on the evidence available. He appeals to the Court of Appeal inter alia on the following grounds:1. THAT the High Court erred in Law in failing to provide remedy for the loss suffered during detention. 2. THAT the Court of Appeal declares that monetary compensation in addition to any other remedies be granted to the appellant. (The Legal system of Kenza is similar if not same to that of Kenya; this includes the legislation and rules of procedures before the courts. Also, applicable case law in the Kenyan Legal system carries the same weight in the Kenza legal system.) ©Kenyan Legal 2013 Page 5
  6. 6. CONSIDER: - Maxims of Equity. D.P.P’s Statement. Constitutional provisions. The Evidence Act. Dear Reader, this column calls for and will appreciate your feedback and thoughts on the issue(s) raised for discussion. The comments, answers and thoughts will be published in the next issue of the magazine kindly send them to or visit You are also invited to send your case for discussion before 19th November 2013 for discussion in this forum. ©Kenyan Legal 2013 Page 6
  7. 7. LEGAL DISCOURSE With Michael Opondo O. “The power of the Lawyer is in the uncertainty of the Law” THIRD PARTY RIGHTS IN MARRIAGE? To commence with; the first blush of this legal discourse is there’s absolutely no Law in Kenya that prohibits non-adults (child) of age under 18 from entering into a marital union. As embodied in the spirit of Article 45(1) of the Kenyan constitution, “The family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State.” And further in Article 45(2), “Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties”, emphasis on the word “EVERY; the word “EVERY” leaves a room for exceptions not unless the word “ONLY adults can Marry” was instead used which on the otherwise leaves absolutely no room for exceptions, as it is, “every person who is an adult can marry(or get married)”, but not “only adults can get married”. So far here, it’s no brainer to understand that the parties to a matrimonial union must not be adults, and “adult”, just so we are clear, is but a concept and thus relative from one person to the next, allow me to demonstrate. As regards to law of Succession, “Child” is a person born of another, that is, 80 year old Michael Oduor born of Opondo is but a “Child” to the later mentioned and thus in reverse, a six day old Michael Oduor is “Adult” enough to be included in Opondo’s will and consequently inherit, as clear as your understanding. Moving on to the Laws of the Land that form basis in matrimonial unions, an adult is a person who has attained a majority age of 18 years, as per the constitution, the Sexual offences Act and the Marriage Act. The rationale behind capacity of 18 years of age is to ensure the parties are able to make rational decisions and handle responsibility; a view expressed by Pearce J. in Pugh vs. Pugh (1951): “According to modern thought, it is considered socially wrong that a person of age, at which we now believe them to be immature and provide for their education, should have the stresses, responsibilities and sexual freedom of marriage and the physical strain of Child birth” Marriage is a contract under statutory Law between two equal parties of Man and Woman, as husband and wife, in exclusion of all others (Hyde vs. Hyde); and consequently, rules of contract apply from the onset. There’s Offer and Acceptance, that is, the initial seduction and courtship period stretching to Engagement-one offered on his knees and the other accepted the ring-, there’s Consideration, that is, the duties and obligations whilst in marriage; consortium, maintenance and the matrimonial confidence in spouses-“dirty linen” should remain in the laundry basket-, there’s Capacity to the contract that is the majority age as aforementioned and if things don’t work out, there’s termination in Divorce. ©Kenyan Legal 2013 Page 7
  8. 8. Privity of this Contract has however to be questioned as per section 19(1) of the Marriage Act which purports that for marriages of parties between the ages of 16 to 21 years old require consent of parent or guardian. So question is, from the onset that the Parent/guardian is a third party to the matrimonial contract, i.e. in willfully giving consent of which otherwise no contract would be formed in the first place, does this mean they remain party to the contract forever and therefore has to be constantly consulted until death do “us” part or it’s termination? Or does the third party lose the position soon as the two married attain majority age? So here’s the Legal Discourse, what’s your course of thought? ©Kenyan Legal 2013 Page 8
  9. 9. THE RULE OF LAW IN KENYA By Henry Omukubi he rule of Law means that government and it’s officials, together with private citizens must act under the law. The rationale behind it is the control of the exercise of public power is by the state by ensuring that it is exercised within legal limits. The concept of rule of law is recognized in the constitution of Kenya 2010 under article 10(2b) which lists the national values and principles of governance as patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people. The rule of law is both a legal and a procedural mechanism and as such it has its elements which ensure its effectiveness. First and foremost, it provides for equality before the law as A.V. Dicey stated: “With us no man is above the Law, but that here every man, whatever be his rank or condition, is subject to the ordinary law…law of the realm” Also provided for by article 27 of our constitution that: “Every person is equal before the law and has the right to equal protection and equal benefit of the Law.” T ©Kenyan Legal 2013 Secondly, the rule of Law requires no man punished or to be lawfully made to suffer in bodily or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land. Punishment can only be imposed on someone who has violated the law. Article 50 (2n) of the constitution provides: “Every accused person has the right to a fair trial which includes the right not to be convicted for an act or omission that at the time it was committed or omitted was not an offence in Kenya or a crime under international Law.” ‘Open Laws’ is another element of the rule of Law. This means that the Laws should be open so that individuals are able to access them. They should not be secret or difficult to locate as this would not enable the individual be guided by Law. This is enshrined in the Constitution where it is provided that the state shall publish and publicize any important information affecting the nation [article 35(3)] The rule of Law further requires that the courts be accessible to the citizens. This is to enable the citizens to access justice easily without any delays evident by virtue of article 48 which states that: “The state shall ensure access to justice for all persons and if any fee is required, it shall be reasonable and shall not impede access to justice” Judicial independence is yet another element of the Rule of Law. This requires that disputes as to the legality of acts of government are to be decided by judges who are independent of the executive. It is provided under article 160(1) that in the exercise of judicial authority, the judiciary, as constituted by article 161 shall be subject only to the Constitution and the Law, and shall not be Page 9
  10. 10. subject to the control or direction of any person or authority, and in article 160(5) that a member of the Judiciary is not liable in any action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function. The rule of Law also guarantees the observance of the principles of natural justice which comprises of the right to a fair hearing and the rule against bias. This is also clearly enshrined in the Constitution of Kenya under article 50(1) which provides that every person has the right to have any dispute that can be resolved by the application of Law decided in a fair and public hearing before a court, or, if appropriate, another independent and impartial tribunal or body. To Comment follow link: Second year, school of Law, Kenyatta University ©Kenyan Legal 2013 Page 10
  11. 11. THE LAW ON THIRD PARTY PROCEEDINGS question or issue arising between the Plaintiff and The Defendant and should be determined as between the Plaintiff and Defendant and Third Party or between either of them. Proceedings against a Third Party These are provided for under Order 1 Rules 15 to 23. By Victor Kiamba I n any given civil proceedings, there are two parties involved; the plaintiff who is also the claimant and the defendant. We may have several litigants in either part whether several plaintiffs or several defendants. The Third Party In other given circumstances, the Defendant may wish to claim against any other person who is not already a party to the suit against the Defendant by the Plaintiff where the said person is said to have been involved in the said Cause of Action and is intricately linked to the Plaintiffs claim. This person is the Third Party. Order 1 Rule 15 (1) of the Civil Procedure Rules, 2010, a Defendant may claim against any other person not already party to the suit where; 1. He is entitled to Contribution or Indemnity 2. He is entitled to any relief or remedy relating to or connected with the original subject matter of the suit and substantially the same as some relief or remedy claimed by the Plaintiff. 3. Any question arising or issue related to or connected with the said subject matter is substantially the same 1. The Third Party Notice This is the Defendants claim against the Third Party and is served upon the Third Party after leave of the court to issue the notice is granted. It is addressed to the Third Party. The Third Party Notice adopts the original case citation and the Third Party is cited as a party to the suit below the Defendant. It states the nature of the claim. That is, the Plaintiffs claim against the Defendant as well as the Defendant’s claim against the Third Party. The Notice also states the date that leave to issue the Notice was granted by the court and the time within which the Third Party must enter appearance. 2. Issuing of a Third Party Notice Within 14 days after close of pleadings, any Defendant may apply for leave of the court to issue a Third Party Notice. This Application is by way of an Ex Parte Chamber Summons which is supported by an Affidavit. A draft Third Party Notice is also annexed to the Supporting Affidavit. The Defendant may apply for an enlargement of time within which to issue a Third Party Notice if the 14 days
  12. 12. within which he must apply for leave expire. This Application is by way of a Notice of Motion. Leave to issue a Third Party Notice for service on the Government is only granted when the court is satisfied that the Government is in possession of all such information as it reasonably requires as to the circumstances in which it is alleged that the liability of the Government has arisen and as to the departments and officers of the Government concerned. Once leave to issue a Third Party Notice is granted, the Third Party Notice is then filed and served upon the Third Party in accordance to the rules under Order 5 on Service of Sermons. An Affidavit of Service must be filed with the court as evidence of service upon the Third Party. 3. Appearance of Third Party and Defence When a Third Party has been served with the Third Party Notice, The Third Party shall file his appearance within the time prescribed in the Third Party Notice. As noted earlier, a Third Party Notice must state the time within which the Third Party must enter appearance. This is unless the court orders otherwise. Appearance is by a Memorandum of Appearance which shall state the address of service of the Third Party being either his residence or place of business and his postal address if he is appearing in person or his Advocates address of service being the place of business within Kenya and their postal address. The Memorandum of Appearance is the stamped and filed in ©Kenyan Legal 2013 the court registry and a copy served upon the Plaintiff and the Defendant. 4. Default of Appearance by Third Party Under Order 1 Rule 17, in the event that a Third Party desires to dispute the Plaintiff’s claim as against the Defendant on whose behalf the notice has been given, or his own liability to the Defendant, the Third Party must enter an appearance in the suit on or before the day specified in the notice; and in default of his so doing he shall be deemed to admit the validity of the decree obtained by such Defendant and his own liability to contribute or indemnify, as the case may be, to the extent claimed by the Third Party Notice. In the case of Joram Were & Another –vs- Transpares (k) LTD & 3 Others [2005] eKLR , Warsame J noted that since the Third Parties therein failed to contest an order enjoining them as Third Parties their Application seeking to dismiss the suit against them was misconceived. Where a Third Party is in default of appearance in the suit and the suit is tried and judgment entered in favour of the Plaintiff against the Defendant, the courts may either at the trial or after the trial enter such judgment against the Third Party. This is after giving notice to the Third Party of the intended Judgment. Execution of such Judgment shall only be with the leave of the court and only if the Defendant has satisfied the Decree against him. Order 17 does not apply on Default of Appearance by the Government as Third Party unless the court so orders Page 12
  13. 13. upon an application by the Defendant which is by Chamber Summons. 5. Third Party Directions After appearance of the Third Party, the Defendant must apply to the court for directions by way of chamber summons. If the court is satisfied that there is a proper question to be tried as to the liability of the Third Party, it may order that such question be tried during the trial or after the trial. The court may also direct that the Judgment entered against the Defendant in favour of the Plaintiff be entered against the Third Party in favour of the Defendant. The court will also determine the question of costs between the Third arty and other parties to the suit and may make orders to costs as the justice of the case may require. LL.B Hons. (CUEA) Post Graduate Dip. In Law (KSL) Advocate of the High Court of Kenya To Comment follow link: ©Kenyan Legal 2013 Page 13
  14. 14. OPEN SPEAK With Nelson Otieno SAUSAGE MACHINES? D octor Stockman is pitted in the book of “An Enemy of the People” as an extremist but of major concern today is his quote that a party is like a sausage machine that smashes all sorts of fatheads and blockheads and the rest is a long story for another day. Kenya before 1992 is not the Kenya we see and live in today. Political appointments were made in the roadsides and ones destiny and achievement of power was determined by his allegiance to KANU- the then ‘chama cha baba na mama”. These times were severe; no one would stay in the streets for a whole day in the name of mass action without taking a bite of his own medicine. Furthermore it was near to impossibility as allegiance to Kanu simply meant belief in the dogmatic ideas based on the party leaders personal interests thanks to Raila’s newly launched book “Flames Of Freedom” which explains more of the traumatizing experiences . These days we enjoy political rights especially those of multi-partism. Our heroes fought for the latter but what must disturb a patriotic mind is whether the set objectives of the church clerics, politicians, some now dead, have been achieved .Political parties have come from avenues for fighting human for rights to ladders for selfishly rising to power. Take for instance, upon the death of Saitoti, Gideon Konchela took over the PNU leadership and within a span of one day made coalition agreement with TNA shortly before making another with URP party. Our political leaders do not take it upon themselves to show respect to our heroes since they are not led by the party manifestos but by their personal interests. When an m.p enjoys good meals at the ICC restaurants, accompanying an ICC suspect, devil knows who, hiding under the umbrella of ‘solidarity while the parliamentary proceedings are in session , and planning to jet back to the country to introduce a bill in the parliament to remove himself from the list of public officers not forgetting the VAT bill that he supported before taking the expensive flight to the Dutch court , something must be wrong politically and I have nothing to lose because am losing anyway to the infamous tyranny of numbers. One is left to wonder how political polygamy has taken root in our country. To the MPs, party hopping is a custom and Kenyans vote for parties rather than individuals irrespective of how transformative their ideas or plans may be. When politicians were buying certificates from smaller parties like Muungano party in the eve of party nominations it just shows how the Kenyan definition of a party conforms to Henrick Ibsen’s. For a politician to successfully vie for a position in Kenya, he must pledge his loyalty to the political kingpin. The effect of this is twofold, first it necessitates that the kingpins to form their political parties that consequently become tribal .The political system in Kenya is thus destabilized due to the tribal divisions. This explains why however transformative someone’s plans may be, he may not succeed in any
  15. 15. political ambition outside ODM and TNA in Siaya and Kiambu counties respectively. The multi party’s fighters did not however envisage such sharp tribal divisions. This political idea has led to certain tribal sayings such as mundu wa nyumba, a kikuyu saying meaning a man of our own. It further reflects the attitude that different tribes has toward any person trying to achieve his political ambitions who hails from a rival or a different tribe. Secondly, any person hailing from any minor tribe in Kenya will never realize his political dreams. Our politicians should be woken up to be rational, cease party sycophancy and serve the people of Kenya. It is only through this that we are able to achieve the envisaged political freedom to all Kenyans. Second year, School of Law, Kenyatta University To Comment follow link: ©Kenyan Legal 2013 Page 15
  16. 16. CRIMINAL RESPONSIBILITY FOR OMISSIONS: NEGLIGENCE IN SCOPE By Sylvia Anne A. I n common language, “negligence” would simply refer to carelessness or nonobervantness to facts/issues at hand. Well, this isn’t as much far from what Law considers as “Negligence”; as in Law, Negligence is a breach of a duty caused by the omission to do something which a reasonable person, guided by those considerations which ordinarily regulate human conduct, would have known to cause harm. In essence you are negligent if you unintentionally cause injury to someone in a situation where you should have known your action could cause harm. This far it sounds much like “Accident”, I mean, a person knows reasonably that the harm could occur but still it happened, can’t that person plead that it was all by accident? This is where the doctrine of Res Ipsa Loquitur comes in, that is, Accident talks or thing speaks for itself. Res Ipsa Loquitur It is sufficient for the plaintiff to prove the accident and nothing more as there are many cases to that effect; the landmark case to its explanation being in Scott vs. London and St. Katherine Docks Co. [1865] 3H&C 596 by the Court of Exchequer, “where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen, it affords reasonable evidence in the absence of explanation by the defendants that the accident arose from want of care.” This doctrine of res Ipsa Loquitur only shifts the onus/burden of proof in that a prima facie case is assumed to be ©Kenyan Legal 2013 made out, throwing on the defendant the task of proving he was not negligent. However, essential requisites for the application of this doctrine are: i) The thing which causes the harm must be under the defendant’s control. ii) The defendant offers no explanation; and iii) While under his control, an accident happens, which would not in the ordinary course of things happen, without negligence? Does this then mean that any negligent act or omission a person does is unlawful? Ingredients of negligence. It’s not just unlawful every negligent omission or act a person does is; three requisites must prevail for liability to arise: i) That the defendant owed the plaintiff a duty of care. A person can be as negligent as he pleases towards the whole world if such person owes no duty of care to it. A duty of care is the obligation to avoid careless action that could cause harm to one or more persons. In Donogue vs. Stevenson[1932], Lord Atkin redefined the concept of Duty of care, he observed, “You must take reasonable care to avoid such acts or omissions which you can reasonably see would be likely to injure your neighbor. Who the n in Law is your neighbor? Persons who are so closely and directly affected by my act that I ought to have them in my contemplation as being affected so when am directing my mind to the Page 16
  17. 17. acts or omissions in question,” This is the Neighbor Principle. ii) That the defendant failed to provide proper standard of care that a reasonable person would have provided in a similar situation. The standard of care is a way of measuring how much care a person owes another. It is the conduct of a reasonable man in a particular situation. The degree of care which a person is required to use in a particular situation varies/depends on the obviousness of the risk; if the danger of causing injury to the person/property of another is great, then great care is necessary, and vice versa. iii) The third requisite is, that the action of the defendant was the cause of injury to the plaintiff. The determining cause often done by applying the “But for” test, that is, an injury would not have happened “but for” the defendant’s action. In Cork vs. Kirby, Lord Denning said, “if the damage would not have happened but for a particular fault, then that fault is the cause of the damage. If it would have happened, just the same fault or not fault, then the fault is not the cause of the damage.” Quite clear there but a question arises why then is it a crime for being negligent as not stopping a crime in action you are capable of stopping but owe no duty of care to stop?-This is the general feeling of the Kenyan populace. Criminal responsibility and duty of care The Kenya Penal Code criminalizes omission on part of the respondent for not stopping a crime in action he would otherwise been able to stop. This brings back the element, Duty of care. The Law on duty of care is non-static in the sense that something was not a privilege yesterday and is today, ©Kenyan Legal 2013 however, the courts have previously considered duty that as laid down by precedent by now; this is to widen the area of application for better protection of public interest. Laid down in the case of Caparo vs. Dickman [1990], the three stage test on establishing duty of care is: 1. Was the harm or loss caused reasonably foreseeable? 2. Sufficient “Proximity” between the parties. The act complained of must directly affect whom the defendant would know would be directly affected by his careless act. Proximity does not refer to geographical/physical closeness but is a legal term; legal closeness. Sometimes it is used in a different sense as indicating not the relationship between the parties but the relationship between the defendant and the source of harm, as illustrated in the case of Hill vs. Chief Constable West Yorkshire. 3. The situation must be one which the court considers it fair, just and reasonable. Even if there is the requisite degree of proximity, like for instance a sufficiently close relationship of love and affection, a duty may still be denied if in the court’s view the imposition of liability would be unfair, unjust and unreasonable. In conclusion therefore, dear reader, next time you are witnessing a crime in action being committed of which reasonably you are able to stop, three things, one, do you have any type of relationship, professional, fiduciary or any other control over the person causing the harm? {proximity} ; two, would it be reasonable, fair and just for you to stop the crime considering the circumstances?-don’t go to a gun fight with a knife-, and three, was it reasonably foreseeable on your part Page 17
  18. 18. that such crime action could have happened yet you took no actions to stop it? If not, you are free to walk away-we have the police, don’t we? Have a crime free Endeavour Third Year, School of Law, University of Nairobi To comment follow link: ©Kenyan Legal 2013 Page 18
  19. 19. POWER PLAY Power, Politics &Governance With Otieno Arnold Odiembo In this Issue:  DO WOMEN REALLY HAVE A PLACE IN KENYA’S JUDICIARY?  WHY RAILA AND KIBAKI GOVERNMENT WAS SUCCESSFUL  WHERE IS KENYA HEADED TO? Second Year; School of Law, Kenyatta University, DO WOMEN REALLY HAVE A PLACE IN KENYA’S JUDICIARY? hat is it with women who tend to harsh way that they should rather be keen in exemplify a sign of profound their common knowledge and not deem as strength or rather power in the minute things that may seem simple and of no judiciary? From the abintio of this great importance. entire Shollei saga I thought to When it came to the one great Willy myself and posed this Mutunga, he made a query to myself, “could judgement on the March 4th this be another elections without validated scenario like the one arguments in making his Nancy Barasa faced? decisions based on a bogus From this it is lucid or claim of rather looking at the rather elucidate that time wasted than the feminine gender is presentations by the advocates always at risk in the who handled the cases. Any judiciary. Nancy Baraza reasonable prudent individual was almost being who watched the proceedings crucified when she saw that George Oraro and merely pointed a gun at Kethi Kilonzo rather presented the face of the a strong case and if not all but egocentric Kerubo, To one of their prayers was to be me all she did was just allowed. But what happened? try to educate an All of them were thrown out. Women in the Judiciary ignorant Kenyan in a This raised questions by a W
  20. 20. number of questions on the reliability of the judiciary in handling matters. This was not questioned by the judicial service commission. Let me leave that aside as I would be termed political but trust me that if you are not a vacuous vessel of ignorance and a manifestation of emptiness you will agree with me without a qualm. Recently, Lawyer Ahmednassir Abdulahi was faced with allegations against him being in participation with the influence of the high court in the decision where National Cereals and Produce Board (NCPB) was ordered to pay Sh564 million to Erad Suppliers and Contractors Company over supply of maize . On the other hand one chief registrar of the judiciary Shollei was suspended pending investigations against her pertaining corruption. If this is so the question to ask oneself is does gender equality really apply in the judiciary? And if the judiciary has the role to interpret the law as is its role where are we headed if that body we all look at to be the abintio of ensuring equality has not exemplified it? I still feel and strongly believe that if Shollei is suspended from office then one Ahmednassir Abdulahi should be suspended leave alone be in the committee that is yet to determine the fate of one Mrs. Shollei. I strongly believe that women have played quiet a great role in ensuring the betterment of the judiciary and legal field at large and thus as most of us are fighting for the protection of Raila who is a kernel figure in this great nation so should we also ensure the protection of the women in the judiciary as they are almost becoming the ‘white rhino’. Look at personalities like Martha Karua, the Hon. Lady Justice Kalpana Hasmukhrai Rawal susanna, the Hon. Lady justice Mary A. Ang’awa amongst others. If these individuals are not protected then trust me we are headed for somewhere dark and a Rubicon. PROTECT WOMEN IN THE JUDICIARY IS MY PLEA TO ALL. To Comment Follow Link: Picture courtesy of Caren Kerubo ©Kenyan Legal 2013 Page 20
  21. 21. WHY RAILA AND KIBAKI GOVERNMENT WAS SUCCESSFUL “ UNITED WE STAND DIVIDED WE FALL” is a saying that has always raised qualms through my head rather than my thoughts but truly I came to agree with it when I started analyzing things more critically. I came to realize a government manned by two individuals at almost the same level of power is better than one handled by one individual. Some may question the trueness of my adage but trust me it is backed by more than just a minute factual claim. During the tenure of Kibaki and Raila in the coalition government, I feel they ensured the best of this country both in the economic sense and also in the international ties between Kenya and other countries both locally within the continental context and the international view. When in power it was lucid that Raila ensured the connection of Kenya with the western world due to his known good relation in diplomacy. Raila ensured that we as a third world state received assistance both financially and any other way adequate to ensure out sustainability and ensconce as a country. With this, though we lived with debts ,but never was there an instance when the government was so broke to increase leave alone impose VAT tax to basic commodities. The aids and grants offered by the western countries really anchored our economy and well being as a state. establishment of infrastructures like roads, airlines bridges inter alia. This ensured the beauty of our state and also the accessibility of it thus ensuring and promoting trade and also any other income promoting project. The aforementioned luminously implore the benefits we as a country ensured from the Kibaki- Raila tenure as heads of states. Some may intimate my adage as being in favor or political based but trust me this is the bare bitter truth which can either be taken at its positive edge or rather criticized to its fullest. “In comparison to the current government we only benefit from one angle which is rather risky to us as a nation than to our benefit” Auxiliary, it was also known that Kibaki had a good rapport with the Eastern nations which are known for their kernelty in the business sector and development of infrastructure. This in itself ensured that we got favor in ©Kenyan Legal 2013 In comparison to the current government we only benefit from one angle which is rather risky to us as a nation than to our benefit. The normal human being is made to always go for what will ensure his or her reverting state than be a problem of cause problems. The current government from my point of view is not in the best of terms with the western nations due to the current case status of the president with the ICC. Trust me this has led to us missing or rather deprived the so called western assistance which plays a big role in ensuring the well being of us. Hon Uhuru Kenyatta clearly focuses on one side of the coin which in this context is the eastern nations. The eastern nations inclusive of china clearly focus on business deals whenever they construct any beneficial infrastructure in this country. When china was up to building the Thika Super highway, they made a deal that ensured that this project would be initiated by the Chinese and also that the Chinese engineers were to undertake the project to its whole. When they cleared the construction, it was so Page 21
  22. 22. wow that it blinded the Kenyan people and they did not focus on the unemployment we faced during its construction. Few years after its completion we now remain with the terror of ensuring that the road is maintained and also paying yearly fees to the Chinese government whereas as a country we cannot even pay our teachers adequately. This is lucidly a loss to us as a nation. Normally, I have always been a proud guy who would at no point ask for money from a lady due to the mindset I have always had that it is to be vice-verse . A day came when I had only two options ask my girlfriend for economic assistance or rather face war by some thugs. This but just an example to illustrate that we have to at times undertake some decisions ©Kenyan Legal 2013 against our pride and also accept our weaknesses as a nation. I believe that it is time we accept that as a nation we are weak and clearly need help from all angles. Hon Uhuru Kenyatta should work out a way to ensure that he is not only close to the eastern nation but also the western nation. We must be proud as a nation yes but when one is weak he/she needs to put away any pride within to ensure we resort our problems before regaining the normal pride as a nation. To Comment follow link: Page 22
  23. 23. WHERE IS KENYA HEADED TO F rom the first time I heard about the burning of JKIA, it ran through my head that this was the beginning of Kenya’s problems. JKIA to the best of my knowledge has one of the most titled security detail in Kenya. If this is the case and still was vulnerable to it being burnt and up to now we the Kenya people have not gotten lucid explanation of what exactly happened and caused the situation as it occurred this then is like to state that the security situation in Kenya is at its worst. Some may not understand the great loss this situation brought to the country apart from the distraction of property. But trust me there is much to that. As it is self explanatory that tourism is one of the most valuable source of income to this superlative state. As a result of the fire at JKIA questions were posed to the heads of tourists concerning the security status as it was in our heads. This for sure reduced the number of incoming tourists in the country. LOSS TO US In the last twenty four or so hours, the instances that have covered the news and have brought melancholic feelings to most Kenyans clearly back the statement ‘We are headed nowhere closet vision 2030 if we cannot stiffen our security.’ At times I always think of what Nancy Baraza says when she watches the TV and sees the security issues we face as a country. I think she rejoices saying ‘Now they thought frisking everyone would help maintain security, and it’s getting worse’. The scenario at west-gate lucidly showed our vision for vision 2030 in context of movie acting. The incident yesterday is one that I have only seen in movies. Where on earth have terrorists learnt the art of holding hostages? And how did they plan all this and subdued the west-gate mall if there were security officers at the entrance ©Kenyan Legal 2013 who are believed to frisk people at their entrance to the mall? What really do the security personnel do in the name of frisking individuals in the entrance to such malls and other building? What is the government doing about this? Auxiliary there was a fire at Kenyatta National Hospital today morning. Is this an illustration that we do not know what to expect and where to expect it? Is there a nexus to the instance that occurred yesterday and today morning? Some weeks ago there was a committee set to look into the main cause of the fire at JKIA. It has been weeks now since and no adequate answer has been given back to the people. This again is what we are to expect in the west-gate issue. This time it would be rather appropriate for the government to ensure they give the Kenyan people answers. This is the least they can do to those injured and the families of those who lost their lives in the gunfire instance at west-gate. I think it is time to ensure the security of all Kenyans and make it the brim of Kenya’s agenda rather than other puerile things. It is time that we see the main impact that the so called police reforms brought into office. It is time that the government proves its worth in ensuring that criminals are brought to justice and punished accordingly for the lack of ensconced they bring to Kenyans. The Kenyan people are watching and you will be judged accordingly. R.I.P to all that lost their lives and I would like to wish all that were injured in the whirlwind quick recovery. To Comment follow Link: Page 23
  24. 24. LEGALITY OF BREACH OF PROMISE TO MARRY By Gabriel Pelu. M arriage under the Matrimonial Causes Act cap 150 means the voluntary union of one man and one woman for life to the exclusion of all others. Legally, marriage is a voluntary act that should be legally able to accommodate free consent and thought for a valid and responsible decision to be reached by marriage capable parties. Under legal thought, breach of promise to marry is legal in its entire entirety unless proven illegal and unlawful whereby persons on breach stand to be charged for the damage caused and the injury incurred. Under law, many factors are taken into account in regard to the legality of breach of promise to marry. Such factors may be who, the cause of the breach of promise, reason for the breach of promise and time of the breach of promise to main lay terms, a breach of promise to marry is all about second thought where the ‘heart’ feels unsatisfied with the person of promise thus the break out. Just as consent to marry is required, so should a second thought of whether to see to a contemplated marriage ought to return any gifts that were exchanged or given. “Where the parents are the ones making the marriage agreement, neither party to the intended marriage can bring an order for breach of promise to marry” promise of marriage or not basically out of personal decisions because marriage is a life commitment and no one would like to walk that journey half minded of his/her better half. Under civil law, breach of promise to marry is acceptable where the legal position depends on who is at fault for the breach. Where the man is at fault, the promise breaks without any returns whatsoever of any gifts given in anticipation of the marriage while if it’s the girl who breaks the promise, she is obliged to return any anticipatory gifts that she got from the man or his family. Where mutual consent to the breach occurs, both parties to the Where the parents are the ones making the marriage agreement such as in Hindu and Islamic cultures, neither party to the intended marriage
  25. 25. can bring an order for breach of promise to marry because the contract was between the parents. Where the parents bring such an action, they can only receive back presents depending on who is at fault for the breach of promise. Parents cannot To Comment follow link: ©Kenyan Legal 2013 receive damages for the breach of promise to marry. Court holds that; it is against public policy and morality for parents to compel children to marry against their wish. Second year, School of Law J.K.U.A.T Page 25
  26. 26. CARLA’S DIARIES Carla’s diaries is a diary of a law student sharing her hostel life experiences Today I woke up hating one thing: the sound of my alarm clock snoozing. I mean, couldn’t my alarm just wait for just one minute? Yawning, I reached for my phone, immediately realizing I had a text message; “Hello comrade, be informed that the intended lecture for jurisprudence that was to take place this morning at 0830hours has been postponed to next week Wednesday...Otieno” I couldn’t help chuckling. Our class representative surely had a way with words, did he just say 0830hours? Couldn’t he just use the standard student language 8.30am full stop?!Hehe. Pulling my covers closer, I thanked my lucky stars about the class that had bounced. This was surely divine intervention! I turned in bed and faced the wall, thinking of nothing but sleep. In that moment, Henry Barlow’s poem “Building the nation” crossed my mind. Mmph, building the nation huh? “Carla!” someone called at the corridor, followed by Cynthia barging into my room with, “Carla, I need my dissertation course outline copy”. Just that and I was up immediately, “Take it from the table Cynthy”, I said yawning at a thankful Cynthia leaving the room with her course outline. I thought of my undone dissertation research and jumped out of bed. Talk of a ruined promising morning! Agrrrh! By Caren Kerubo K.U.S.O.L
  27. 27. THE NEW CONSTITUTION AND THE YOUTHS By Kenneth Kimathi The constitutional referendum in Kenya on 4th August 2010 in which the citizens overwhelmingly approved it paved way to the promulgation of the second constitution which refigured the Kenyan youths. For the first time youths have their rights enshrined in the Supreme Law of the Land. Since its promulgation, consequently, in the spirit of Article 55 of the constitution, we as the youths should never be threatened into taking particular political stands just so as our grievances can be addressed. Any government that gets to power has the mandate to cater for and satisfy the requirements of the said article as A breach of this should lead to a judicial action for constitutional breach. Besides that, neither the government nor the legislature that takes over has the power to re-enact a law that is inconsistent with this article. This article provides that the state shall take measure, including affirmative action programmes to ensure that the youth shall: a) Access relevant education and training. Therefore it’s our obligation as the youths to utilize the opportunity irrespective of our social or economic backgrounds. Our academic backgrounds also don’t have to limit us from reaching the epitome. The government should also respond to this particular clause by playing an equal opposite role by ensuring education is accessible to all youths. It should ensure that all youths attain higher education; college, university or technical levels. ©Kenyan Legal 2013 b) This part gives the youths a chance to associate, be represented and participate in political, social, economic and other spheres of life. The state therefore should go an extra mile to abolish and deter organizations from coming up with legislations that contravene this part of the article. Organizations should be stopped from discriminating the youths when it comes to offering loans and grants that would otherwise allow them to participate in the economic sphere. The parliament should also enact legislation that provides for affirmative action to the youths so that they can participate in the political sphere without paying any fee to electoral commission as required by the elections Act. The last part of this article provides that the state should protect the youth from harmful cultural practices and exploitations. It’s therefore upon the state to use its representatives and organs to ensure that the youth are protected at the village levels because this is where the centre stage of cultural practices, if any, takes place. It should ensure that all the barbaric and harmful practices that affect the youth are abolished and any person found in practice of the same to face the full wrath of the Law. Youths in the past have been exploited mostly when it came to employment and other opportunities that the youths seemed to have interest in. they were asked to part with huge amounts of money in order to get access to such opportunities. Any individual found to be Page 27
  28. 28. involved in such unscrupulous practice of exploitation must also be dealt with accordingly. All in all, as a youth I see this as a rare opportunity that we have and therefore ought to fully utilize it. t Second Year School of Law, Kenyatta University To comment follow Link: ©Kenyan Legal 2013 Page 28
  29. 29. LEGAL POSITIVISM: IS IT OR NOT IN KENYA? By Michael Opondo O. I n contrast with the general idea, the essence of legal positivism is not a denial of ‘Natural Law’ theory claim that Law and morality are heavily interlinked, but rather that the identification of the law is not solely dependent on moral argument, but that it depends on social facts alone. In my view Rather, Kenya’s Law application is solely built on Legal positivism as natural law sources are slowly but sure seeing their demise, take for example, Customary Law. Legal positivism, therefore, is a school of Jurisprudence whose conventional nature of law is socially constructed with legitimate source from written rules and regulations. It was largely developed by legal thinkers in the nineteenth-century. ©Kenyan Legal 2013 The doctrine, that law can be identified by reference to social facts alone without engaging moral argument is called “The sources thesis” by Prof. Joseph Raz. He states that, in “The Authority of Law (1979)” , that the legal positivist thesis is that what is law and what is not is a matter of social fact. He further postulates that a jurisprudential theory is only acceptable only if its test for identifying the content of Law and determining its existence depends exclusively on facts of human behavior. Back home in Kenya, Law is sewed on Social dynamics and not the other way round-law follows social change-thus social facts constitutes what is and what is not law of the land. This has however not been conclusive as there’s no exact test to be used to identify Law. Prof. Ronald Dworkin comes in to attack “the sources thesis” in his “Magnum opus on legal theory, Law’s Empire (1986)” arguing that legal positivism cannot properly account for legal argumentation by lawyers and legal decisions by appellate judges in so called ‘hard cases’. He further says that law consists not merely of the settled legal rules but also legal principles which are not identified from the ‘sources thesis’ but “Law is to bring pleasure and avoid pain, with pain and pleasure as the ultimate standards on which Law is to be judged” Page 29
  30. 30. from the moral interpretation of Law. Dworkin’s view is however often characterized as a ‘third theory’ partly because it’s not clear where he stands on question of whether there is a conceptual relation between Law and morality. Does Kenyan Law have a relation to morality or not? Jeremy Betham (1742-1832) brings in his legal philosophy called “Utilitarian individualism” whereby “utilitarianism” is a theory in normative ethics holding that proper source of action is the one that maximizes overall happiness. He criticized the method of Lawmaking, corruption and inefficiency in the administration of justice and restraints on individual liberty. The law in his view was to emancipate the individual from bondage and restraints upon his freedom; once the individual was made free, he would be able to look after his welfare. Law is to bring pleasure and avoid pain, with pain and pleasure as the ultimate standards on which Law is to be judged. As held by Betham, Law in Kenya is viewed as to either merit an individual with freedom and rights or to bring bondage and/or punishment to law breakers. The Legislature is the Law making body in Kenya, being an arm of the sovereign Government; accordingly, as stated by John Austin (1790-1859), sovereign is the source of law. “Every positive law or every law simply and so called is set by a sovereign individual or a sovereign body of individuals to a person or persons in a state of subjection to its author”. He further postulates that “positive law consists of commands set as general rules of conduct by a sovereign to a member or members of the independent political society where in the author of the law is supreme”, therefore, accordingly, Austinian Theory is that Law has its source in sovereign authority and there can be no law without a sovereign, and every law is a command of the sovereign accompanied by a ©Kenyan Legal 2013 sanction. This comes under criticism and subsequent improvements by Hans Kelsen. Kelsen’s theory, as is well known, doubly pure, free from psychological and sociological investigations and it separates law from morality. Hans Kelsen propounded a theory of law, which is an improvement upon Austin’s theory, in his essay, “The pure theory of Law”. He postulates that law is a norm of action, normative science, and remain valid even when they are infringed and even when the indicated consequence has not followed. Kenyan Supreme Court rulings involving ‘punishment by death’ has not been executed in the long recent past but still remains valid. “State” is therefore a synonym for the legal order which is nothing but a pyramid of norms. ‘Purity’ of Kelnite theory as his theory is Universalist and not confined to any particular legal system. Next comes the replacement of “The command theory” of Betham and Austin effectively by “The rule of recognition” of Prof H.L.A Hart (1907-1992). In essence that the identification of law was to be made upon observance of the behavior of legal officials and how they identified rules in their society, Kenya’s delegated legislation fully fits this view. Both “The command theory” and Hartian “rule of recognition” are examples of Joseph Raz’s “Sources Thesis”, Law of a society is to be identified by social facts alone. Hart also brought up “separation thesis” which stated that “having a legal right to do something doesn’t entail having a moral right to do it”. All about freedom but at the same time he does accept the society’s need for a common morality. John Stuart Mill argues that the common morality may be utilitarian in nature but it does not arrive from the divine but from men who interpret the various natural phenomena to achieve utilitarian government. He postulates that trying to impose a moral code Page 30
  31. 31. on society was unacceptable as it was an attack on the liberties of the individual and also that even if the state tried to impose such a moral constraint on society, then it would make no difference as it would have no effect on changing attitudes. This I deem true as far as, for example, the rule by Kenyan Law against F.G.M is concerned-it is illegal. In conclusion, legal positivism is the thesis that the existence and content of law depends on social facts alone and not its merits, and in order to know your legal rights, you need to look at what laws your society has, which is very practical in Kenyan Legal Scene. To comment follow link: Second year; School of Law, Kenyatta University, ©Kenyan Legal 2013 Page 31
  32. 32. Moment with Self With Sheila Mokaya D TYRANNY OF THE URGENT? o we ever feel one day flow into the next, one week flow into the next and one year flow into the next? There is always one more task, one more assignment, one more item to check off your “to do list”. The tyranny of urgent consumes our lives. We rush from one task to another. One may wonder, ‘is it really worth it all, will it make any lasting difference? That the things which are most important get pushed out of our lives by the things which are most immediately demanding?’ Our homes which were a place of comfort and rest have been reduced to a place of convenience; a place to eat and sleep. The modern world never whispers. Our cities are like arcades without exits. Urgent voices, flashing signs and an endless stream of media images surround: Adapted from When God Said Remember. Did God intend for us to live such miserable lives; our minds always overcrowded? Truth is that He had a better plan for us. The wisest man on earth admits that everything under the sun is meaningless and vanity. That there is no remembrance of men of old, and even those who are yet to come will not be remembered by those who follow- Ecclesiastes 1:11 he questions: without God who can eat or find enjoyment? Psalms 127: 1-2, unless the Lord builds the house, its builders labor in vain. Unless the Lord watches over the city, the watchmen stand guard in vain. In vain you rise early and stay up late, toiling for food to eat-for He grants sleep to those He loves. Let us go back to the source, to the one who created us, the one who determines our destiny, and the one who gives us rest. He gives us an easy solution; is anyone of you in trouble? He should pray. For the fight is not ours, but the Lords. ©Kenyan Legal 2013 Second year, School of Law, Kenyatta University Page 32
  33. 33. THE LAW OF CONTRACT: AN INTRODUCTION By Gabriel Pelu contract is an agreement entered into voluntarily by two parties or more with the intention of creating a legal obligation, which may have elements in writing, though contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific performance of the contract or an injunction. The parties may be natural persons or juristic persons. A contract is a legally enforceable promise or undertaking that something will or will not occur. The word promise can be used as a legal synonym for contract, although care is required as a promise may not have the full standing of a contract, as when it is an agreement without consideration. At common law, mutual assent is typically reached through offer and acceptance, that is, when an offer is met with an acceptance that is unqualified and that does not vary the offer's terms. The latter requirement is known as the "mirror image" rule. If a purported acceptance does vary the terms of an offer, it is not an acceptance but a counteroffer and, therefore, simultaneously a rejection of the original offer. Offer and acceptance A The most important feature of a contract is that one party makes an offer for an arrangement that another accepts. This can be called a ©Kenyan Legal 2013 concurrence of wills or consensus ad idem (meeting of the minds) of two or more parties. The concept is somewhat contested. The obvious objection is that a court cannot read minds and the existence or otherwise of agreement is judged objectively, with only limited room for questioning subjective intention: Smith v. Hughes. Richard Austen-Baker has suggested that the perpetuation of the idea of 'meeting of minds' may come from a misunderstanding of the Latin term 'consensus ad idem', which actually means 'agreement to the [same] thing'. There must be evidence that the parties had each, from an objective perspective, engaged in conduct manifesting their assent, and a contract will be formed when the parties have met such a requirement. An objective perspective means that it is only necessary that somebody gives the impression of offering or accepting contractual terms in the eyes of a reasonable person, not that they actually did want to form a contract. The case of Carlill v Carbolic Smoke Ball Company is an example of a 'unilateral contract'. In Australian Mills v The Commonwealth, the High Court of Australia considered the term "unscientific and misleading". Obligations are only imposed upon one party upon acceptance by performance of a condition. Offer and acceptance does not always need to be expressed orally or in writing. An implied Page 33
  34. 34. contract is one in which some of the terms are not expressed in words. This can take two forms. A contract which is implied in fact is one in which the circumstances imply that parties have reached an agreement even though they have not done so expressly. For example, by going to a doctor for a checkup, a patient agrees that he will pay a fair price for the service. If one refuses to pay after being examined, the patient has breached a contract implied in fact. A contract which is implied in law is also called a quasicontract, because it is not in fact a contract; rather, it is a means for the courts to remedy situations in which one party would be unjustly enriched were he or she not required to compensate the other. For example, a plumber accidentally installs a sprinkler system in the lawn of the wrong house. The owner of the house had learned the previous day that his neighbor was getting new sprinklers. That morning, he sees the plumber installing them in his lawn. Pleased at the mistake, he says nothing, and then refuses to pay when the plumber delivers the bill. Will the man be held liable for payment? Yes, if it could be proven that the man knew that the sprinklers were being installed mistakenly, the court would make him pay because of a quasi-contract. If that knowledge could not be proven, he would not be liable. Such a claim is also referred to as "quantum meruit". Consideration Consideration is something of value given by a promissor to a promisee in exchange for something of value given by a promisee to a promissor. Typically, the thing of value is a payment, although it may be an act, or forbearance to act, when one is privileged to do so, such as an adult refraining from smoking. Consideration consists of a legal detriment and a bargain. A legal detriment is a promise to do something or refrain from doing something that you have the legal right to do, or voluntarily doing or refraining from doing something, in the context of an agreement. A bargain is something the promissor wants, usually being one of the legal detriments. The legal detriment and bargain principles come together in consideration and ©Kenyan Legal 2013 create an exchange relationship, where both parties agree to exchange something that the other wishes to have. The purpose of consideration is to ensure that there is a present bargain, that the promises of the parties are reciprocally induced. The classic theory of consideration required that a promise be of detriment to the promissor or benefit to the promisee. The emphasis is on the bargaining process, not an inquiry into the relative value of consideration. This principle was articulated in Hamer v. Sidway. Yet in cases of ambiguity, courts will occasionally turn to the common law benefit/detriment analysis to aid in the determination of the enforceability of a contract. Sufficiency Consideration must be sufficient, but courts will not weight the adequacy of consideration. For instance, agreeing to sell a car for a penny may constitute a binding contract. All that must be shown is that the seller actually wanted the penny. This is known as the peppercorn rule. Otherwise, the penny would constitute nominal consideration, which is insufficient. Parties may do this for tax purposes, attempting to disguise gift transactions as contracts. Past consideration is not sufficient. In Eastwood v. Kenyon the guardian of a young girl obtained a loan to educate the girl and to improve her marriage prospects. After her marriage, her husband promised to pay off the loan. It was held that the guardian could not enforce the promise because taking out the loan to raise and educate the girl was past consideration—it was completed before the husband promised to repay it. Stilk v. Myrick, in which a captain's promise to divide the wages of two deserters among the remaining crew if they would sail home from the Baltic short-handed, was found unenforceable on the grounds that the crew were already contracted to sail the ship through all perils of the sea. Consideration must move from the promisee. For instance, it is good consideration for person A to pay person C in return for services rendered by person B. If there are joint promisees, then Page 34
  35. 35. consideration need only to move from one of the promisees. In addition to the elements of a contract:  a party must have capacity to contract;  the purpose of the contract must be lawful;  the form of the contract must be legal;  the parties must intend to create a legal relationship; and  the parties must consent. As a result, there are a variety of affirmative defenses that a party may assert to avoid his obligation.    Ewan McKendrick, Contract Law - Text, Cases and Materials (2005) Oxford University Press ISBN 0-19-927480-0 P.S. Atiyah, The Rise and Fall of Freedom of Contract (1979) Clarendon Press ISBN 0-19-825342-7 Randy E. Barnett, Contracts (2003) Aspen Publishers ISBN 0-7355-6525-2 To comment follow link: Affirmative defenses Vitiating factors constituting defenses to purported contract formation include:  mistake;  incapacity, including mental incompetence and infancy/minority;  duress;  undue influence;  Unconscionability  misrepresentation/fraud; and  Frustration of purpose. Freedom to contract and Hurley v. Eddingfield Second year, School of Law J.K.U.A.T In most systems of law, parties have freedom to choose whether or not they wish to enter into a contract. Hurley v. Eddingfield (1901), in which the Supreme Court of Indiana ruled in favor of a physician who voluntarily decided not to help a patient whom the physician had treated on past occasions, despite the lack of other available medical assistance and the patient's subsequent death. Reference ©Kenyan Legal 2013 Page 35
  36. 36. CRIMINAL JUSTICE AND HUMAN RIGHTS: DEATH PENALTY committed a crime, all in all, pursuing the essential object of Criminal Law which is primarily to protect the society from Criminals and Law breakers; however, if applied in extreme, human rights might be violated irreparable. Human Rights By Michael Opondo O. Criminal Justice Criminal Justice, or rather in Kenyan context Criminal Procedure refers to the procedure of bringing a criminal suspect to justice in entirety from investigation, through arrest, charges, trials, sentences and punishment. By virtue of section 3(1) of the Criminal Procedure Code, which states: “All offences under the Penal Code shall be inquired into, tried and otherwise dealt with according to this code” And section 3(2) which states that: All offences under any other Law shall be inquired into, tried and otherwise dealt with according to this code subject to any enactment for the time being in force regulating the manner or place of inquiring into, trying or otherwise dealing with those offences” It can be deduced that Procedural Criminal Law has the purpose of administering the Substantive Law and to bring certainty as to process to be followed when a person has ©Kenyan Legal 2013 The question of what really Human rights are is a mammoth one as such and would only imperfect it’s definition in attempt to pigeon hole it in one summary, however, an attempt would do. Human Rights are what every person/individual shall have by virtue of birth as human being; they are and remain inherent and inalienable. In the formation of a society, however, from a positivist view, individuals surrender some of their rights to the government for protection and to maintain social order, for example, right to life-you have no absolute right over your life making suicide a crime. Human rights are premised under the following assumptions:  Human rights transcend territory and time. They are universal.  Human rights represent legal and moral limits of the government’s power.  Human rights are ancient in origin.  Human rights are more sacred than ordinary legal rights.  Human rights are supra-legal. They do not depend on existence of government or constitution. Page 36
  37. 37.  Human rights are essential conditions for a free and democratic society.  Fundamental human rights belong to human beings as individuals as well as to human groups as collective entities. The Kenyan Penal system is highly built on the “Highly Punitive” strategy in administering justice, that is, the attitude that offenders should be dealt with severely as possible, taking of “Shoot to Kill” and such measures, rather that the “Managerialist” strategy which rather seeks to protect and uphold the human rights of offenders, victims and potential victims of crime, never neglecting any. Death penalty Have a lively Endeavour. To comment follow link: Second year; School of Law, Kenyatta University, Talking of neglected, the Hangman’s Noose seems to be feeling so; maybe its justified, or maybe not. Quoting one Stuart Banner: “Whether phrased in Philosophical, political or economic terms, the arguments have been rooted in a basic moral question: Are there Crimes so grave or any Criminals so evil that death is the only just punishment? Is it right for the state, acting in our name, to put criminals to death?” Blood defiles the Land, and it’s not about being morally blinded or uptight on this, but any reasonable man-whoever he is-should feel the same and it therefore beats logic why we still have the death penalty at the disposal of our Law courts. May plea, Kenyan Penal System, lets spare lives both in bold, black and white; and in practice. ©Kenyan Legal 2013 Page 37
  38. 38. JUDICIARY WATCH Our new brand identity – A new promise to the Mwananchi Source: (PUBLIC DOMAIN ISSUE) October 11, 2013 The Hon. Dr. Willy M. Mutunga, D.Jur, S.C., E.G.H. Chief Justice & President, Supreme Court of Kenya Chairman, October 2013 Nairobi, Kenya W e are making a bold promise. Understanding our role as the agency through which Kenya’s robust, indigenous, patriotic and progressive jurisprudence will be monitored, reported and also packaged as a product for export to other jurisdictions, and acknowledging our social justice obligation to provide public legal information that is open and accessible, we will be the gold standard by which law reporting and access to public legal information is measured. The people of Kenya, from whom our mandate is derived, the letter and spirit of the Constitution of Kenya, 2010 and the Judiciary Transformation Framework requires nothing less of us. The essence of our renewed sense of obligation is captured in our new slogan “Where Legal Information is Public Knowledge”. We have come to an enlightened understanding of our mandate and ©Kenyan Legal 2013 Page 38
  39. 39. make a commitment to not merely be a provider of public legal information but the people’s fountain of knowledge and understanding of the law for the promotion of the rule of law and the advancement of a civilized society. We have renewed our minds and rededicated ourselves to the national values and principles of public service set out in the Constitution of Kenya, 2010 and we have re-engineered our systems and processes to exceed the expectations the people, the Judiciary, our partners and our stakeholders. The essence of this renewal is expressed in a new brand identity – KENYA LAW. The Laws of Kenya (Revised and Consolidated Edition) – A token of our commitment to providing quality public legal information Committed, effective and comprehensive implementation of the Constitution will place Kenya on a social-democratic trajectory. The Constitution has fundamental and core pillars that can mitigate the current unsustainable and unacceptable status quo in our economic, social, cultural, ideological, and political sectors. Undermining the Constitution will destroy these pillars. The Constitution calls upon us to be patriotic. I do not see any other way of expressing our patriotism except in our expression of fidelity to the Constitution and its unequivocal implementation. Kinachohitajika ni moyo wa dhati wa kuikubali Katiba na kuitekeleza. Hilo lisipofanyika basi hapatakuwa na usawa, demokrasia, utawala wa sheria, uhuru wa Mahakama, wala maendeleo yoyote yale katika jamii. The Constitution of Kenya, 2010 places an obligation on every citizen to respect, uphold and defend the Constitution. This obligation, and indeed the obligation placed on the citizen to obey the other laws as well, necessarily gives rise to a duty on the State to publish the law. The citizen’s obligation can therefore only be discharged where the citizen has easy access to an accurate, reliable and authoritative source of the text of the law. Indeed, in the Bill of Rights, the Constitution establishes the citizen’s right to access ‘information held by the State’ and places a duty on the State to ‘publish and publicise important information affecting the nation’. Therefore, at Kenya Law, we strongly believe that the free flow of information is fundamental for both access to knowledge and the development of culture. Public legal information is part of the common heritage of humanity and maximizing access to this information promotes justice and the rule of law. Such information, which includes the primary sources of law, should therefore be accessible to all citizens. We are glad to present the first revised and consolidated edition of the Laws of Kenya since 1989. In keeping with our policy and our obligations on accessibility, the edition is provided and will continue to be updated in print, online and on CD-Rom; the digital edition is provided on a technology platform that meets the industry standard for openness and accessibility and the edition is free from unfair copyright restrictions. I would like to acknowledge and appreciate the leadership provided by the Members of the Council for Law Reporting; the innovativeness, diligence and dedication of its Team Leaders and Team Players and the technical and financial support of the Attorney General and our development partners. ©Kenyan Legal 2013 Page 39
  40. 40. See more at: We Don’t Take Public Support for the Judiciary for Granted Source: (PUBLIC DOMAIN ISSUE) May 20, 2013 Remarks by the Hon. Dr. Willy Mutunga, D. Jur., SC, EGH Chief Justice, President, Supreme Court of Kenya. (This article was also published in the Sunday Nation edition of May 19, 2013.) “ Ever since I took my oath of office on June 20, 2011, I have never been under any illusion that winning public confidence is a destination – rather I believe that it is a continuous journey. Even at those moments when surveys have found that the Judiciary enjoyed some of the highest public approval ratings for a public institution, we have been keen to seek ways of winning the confidence of those who still found our services and attitudes unsatisfactory. I was, therefore, surprised to read the online report in the Daily Nation (Wednesday, May 15, 2013) attributing to me remarks to the effect that the proof of Kenyans’ confidence in the court system could be found in the unanimous decision of the Supreme Court in the recent presidential petition. Nothing could have been further from what I said. It is possible that since the reporter was not present at the meeting with Chief Judge Lippman in his Manhattan chambers, he entirely missed the context and substance of our discussions. Going by the reactions online, this report has caused a great deal of distress to many Kenyans. I have, therefore, requested the editors of this newspaper to allow me to exercise the right of reply on this matter in order to set the record straight. From May 13, 2013, I have been visiting the United States as part of my continuing engagement with other jurisdictions to draw lessons on how to speed up the transformation of the Judiciary launched a year ago. It has been a mutual learning experience for us as well as for our hosts. In New York, for example, Chief Judge Lippman of Circuit of Appeals is working to bring into the mainstream of the justice system its town and village justices, many of whom are non-lawyers who have been criticised for conduct ranging from appearing drunk in court to failing to inform defendants of their right to counsel, to convicting defendants without trial. We, on the other hand, are attempting to reconcile the councils of elders, which are important in traditional Kenyan society, with the protections of our new constitution, for example, with regard to women’s rights. ©Kenyan Legal 2013 Page 40
  41. 41. Our discussions also centered on experiences in negotiating budgets with the Executive and the Legislature as an independent Judiciary. I recall telling Chief Judge Lippman that unlike in 2007 when election contestants refused to go to court, this time round, on the basis of the confidence building work we have undertaken since 2011, there was recourse to the courts and not violence. The closest I came to discussing the petition was to say that political questions are problematic for courts worldwide because what makes sense in law, evidence and the Constitution may not always be what makes sense politically. The Supreme Court judges and I are only too aware that the decision handed down in on March 30, 2013 may not be universally popular. We have subsequently taken steps to open spaces for it to be debated, for the benefit of all actors and interests involved not just now but also for the future. One of the events scheduled upon my return to Kenya is the handover of all materials from the presidential election petitions to university law schools in Kenya in order to launch a robust debate and lifelong scholarly inquiry on the cases and the decisions that flowed from them. Through this engagement, the Supreme Court, and indeed the Judiciary, will be inviting criticism of its processes and outcomes as well as evaluations and affirmations as appropriate. It is a testament to our acceptance of the principle that it is only through constant engagement that we can build public confidence in Kenya’s justice system. Whenever the public has expressed confidence in the workings of the Judiciary, we have never seen it as an opportunity to become over-confident in our abilities or rest on our laurels. We remain eternally grateful to those Kenyans who continue to keep the faith in the ideal of the Judiciary created by the Constitution. We remain keenly aware that to those whose faith may be flagging, we have a duty to restore it in our decisions and conduct. See more at: ©Kenyan Legal 2013 Page 41
  42. 42. Special thanks to: i) The Contributors Sheila Mokaya, K.U.S.O.L Otieno Arnold O., K.U.S.O.L Caren Kerubo, K.U.S.O.L Victor Kiamba, Advocate of the High Court Gabriel Pelu, JKUAT Kenneth Kimathi, K.U.S.O.L Sylvia Anne A., U.o.N Henry Omukubi, K.U.S.O.L Nelson Otieno, K.U.S.O.L ii) Picture models; Patricia Ngare; and Caren Kerubo. Powered by: To participate in the next issue, please send articles, with your personal details and picture to: or With the reference: KENYAN LEGAL ARTICLE before 19th November 2013 With Complements: Opondo Michael, Managing Editor, ©Kenyan Legal 2013 All Rights Reserved. ©Kenyan Legal 2013 Page 42