ORALS REVISION AND PREPARATION – 2018-2022 Compilation1

Table of Contents
Tips................................................................................................................................................................2
Civil...............................................................................................................................................................3
Commercial................................................................................................................................................98
Conveyancing..........................................................................................................................................173
Criminal....................................................................................................................................................214
LPM...........................................................................................................................................................292
LWD..........................................................................................................................................................324
Probate......................................................................................................................................................328
Professional Ethics..................................................................................................................................384
Trial & General Questions.....................................................................................................................398

1
Compiled by Kennedy Mburo. This is derivative work from different sources thus I bear no liability for any errors.
Answers (where there are) not mine. Some questions may be repeated. Purely for revision and familiarization.
Tips
1. Content, Knowledge and Comprehension & Application – 7 Marks

2. Presentation – 7 Marks

3. Etiquette – 2 Marks

4. Audibility – 2 Marks

5. Composure – 2 Marks

 Advocacy skills are tested

 Don’t cry, even if it looks like you’re being badgered

 If you don’t know the answer to a question, its best to say that you’re not
sure.

 Be confident

 Maintain eye contact

 Engage the panel

 Don’t appear to be over-confident (a know-it-all) i.e. be humble & respectful

 Dress appropriately
Civil
What is the difference between:

Verifying affidavit: Verifying affidavit states that the averments made are true.

A divorce petition is also supported by a verifying affidavit.

Replying affidavit: Replying affidavits are filed in response to the facts raised in the
supporting affidavit. You file it together with a notice of motion.

Supporting affidavit: A supporting affidavit accompanies good defence to support the

grounds of opposition by the defendant. Generally speaking, ALL applications are
accompanied by a supporting affidavit. The affidavits adduce evidence in the form of
annextures.

What are representative suits?

Representative suits are suits filed under Order 1 Rule 8 where parties with the same
cause of action seeking the same relief/remedy from the respondent institute a suit
under one or more plaintiffs (but not all of them) are allowed to sue and the judgement
affects them all. It prevents multiple suits on the same matter being heard individually.

What is the tarquand rule?

The tarquand rule states that people transacting with a company believe that internal
matters are handled properly and cannot inquire as to how the property is run - Royal
British Bank v Turquand

What are the various ways of attacking a plaint?

You can attack a plaint by:

Set-off
Counter-claim
Defence

Using a defence - The plaintiff may either traverse or deny, Confess and avoid, Object
on a point of Law, Force the opponent to furnish further particulars, Reply to force your
opponent to amend, Admit or make an admission

Set off - Used as a shield to the plaintiff's claim

Counter claim and settle - Under Order 2 Rule 11

If you have a claim against the plaintiff, Defendant has the option of instituting another
proceeding if it can be settled in the same suit without delay or inconvenience, court
allows it

What is the nemo dat principle?

Nemo dat non quod habet principle is a Latin maxim which means that you cannot give
that which you do not have. In a nutshell, the principle affirms that you cannot pass
good title to a third party if you are not the owner of the goods. The principle aims to
protect the rights of the true owner of the goods as well as bonafide purchasers.

How do you serve a foreigner?

Provided for under order 5 rule 21. You may serve a foreigner as long as he/she is in the
commonwealth. You will serve through the High Court

You will seek leave of the court first with an application made by way of chamber
summons supported by an affidavit. You will then tell the court the mode of service to
use.

Difference between special damages and general damages

General damages are those damages that can’t be easily assigned a monetary value e.g.
pain and suffering.

Special damages represent economic losses e.g. loss of earnings.

Generally speaking, general damages can relatively easily be quantified whilst general
damages cannot.

Special damages must be specifically pleaded and proved to warrant any award to that
effect.

Difference between a set off and counter claim

Set off is used as a shield to the plaintiffs claim. For instance if you sue me for 100 bob
then I file a defence stating that you also owe me 100 bob, then the debts would just
cancel out hence setting off.

Counter claim - under Order 2 Rule 11, if you have a claim against the plaintiff, the
defendant has the option of instituting another proceeding if it can be settled in the
same suit without delay or inconvenience

What are garnishee proceedings?

Garnishee proceedings are those where one has a decree but property of the judgement
debtor (the person who lost the case and judgement was passed against) is not in his
hands but in the hands of a third party. The procedure instituted by the decree holder
against the third party holding the property is referred to as garnishee proceedings

What are third party proceedings?

Third party proceedings arise where a defendant in a suit claims against any person
who is a co-defendant or who is not a party to the proceedings that the latter is or may
be liable to the defendant for all or any part of the plaintiff’s claim against the
defendant.

What is discovery under Civil Procedure and how is it done?

Section 22 Civil Procedure Act - Discovery is a pre-trial procedure whereby each party
investigates the facts of the case by obtaining evidence from the opposing party. It can
be done through:

• Delivery and answering of interrogatories

• Admitting documents and facts

• Inspection

• Production

• Impounding

• Return of documents to be produced as evidence

The court may order such documents to be produced or issue summons to persons to
produce the documents or order a fact to be proved by affidavit.

Difference between substantive law and procedural law

Substantive law details the rights of parties in law whilst procedural law lays down the
process by which the right of parties are to be enforced.

Judicial Review steps (very examinable in exam and orals, pay special attention to this)

The procedural law relating to judicial review is under Order 53 CPR and requires an
applicant to first apply to the High Court for leave to institute the application for
judicial review.

APPLICATION FOR LEAVE STAGE- permission of the High Court has to be obtained
before a claim of JR can be commenced; this is done by way of chamber summons

• The applicant makes a chamber summons application.

• The application must be accompanied by a statement setting out the name and
description of the applicant, the relief sought and the grounds for the relief
sought.

• The application must be supported by affidavits verifying and setting out the
facts and evidence relied upon.

• The applicant must give notice of the application for leave not later than the
preceding day to the High Court Registrar. This notice must be accompanied by
copies of statutory statement and verifying affidavits to be used in the
application for leave.

• Grant of leave to apply for prohibition or certiorari may operate as a stay of the
proceedings in question pending hearing and final determination of substantive
application. There can be no stay if the substantive order sought is mandamus
since mandamus issues to compel action on the part of an authority which has
omitted to act and as such, it logically follows that there is no action to be stayed.
 • Leave to apply for certiorari must be made not later than 6 months after the date
of the proceeding/decision to be quashed.

• No rules yet to limit time for applying for mandamus and prohibition.

THE SUBSTANTIVE APPLICATION STAGE

• Where leave has been granted, the applicant is required to file the substantive
application for judicial review with the High Court and apply for the orders for
which leave has been granted within 21days from the date the order for leave is
made.

• The application must be made by Notice of Motion.

• The Notice of motion must be served to all persons directly affected by the
application.

• All persons affected must be notified of the date set for hearing.

• A return of service must be filed before the hearing.

• The notice of motion must be accompanied by copies of the statutory statements

and copies of the affidavits which accompanied the application for leave.

• Copies of any affidavits accompanying the application for leave shall be supplied
on demand, and no grounds shall be relied upon or any relief sought at the
hearing except the grounds and relief set out in the said statement.

• However, the court may allow the said statement to be amended or use of further
affidavits to deal with new matters.

5 types of injunctions

• Prohibitory injunction

• Mandatory injunction

• Interlocutory or temporary injunction

• Anticipatory injunction

• Perpetual injunction
 • Interim injunctions

• Mareva injunctions

• Injunctions against the government to protect children rights.

Interlocutory or temporary injunctions - limited to apply for this only until final
determination by the court of the right of the parties.

Interim injunctions - an order in the nature of interlocutory injunction but restraining

the defendant only after a named day or further order and its granted ex parte

Mareva injunction - a pre-trial injunction restraining the defendant and persons with
control over defendant’s property or assets from dealing with the assets in ways that
will be detrimental to the plaintiff’s interests pending the trial.

Prohibitory injunctions - acts to refrain the defendant from doing certain things

Mandatory injunction - Requires the respondent to do certain things

Explain interpleader and the procedure it undertakes

Section 58 Civil Procedure Act - Interpleader proceedings or application occurs in

situations a third party is in custody of a property claimed by two or more claimants.
The third party will then move to court to determine the true owner of the property.
The third party will have to prove to the court that:

• He has no interest whatsoever in the property except for his charges or costs

• That he has not colluded with either of the claimants and

• That he will be willing to surrender the subject matter to the court.

Give situations where you use:

(i) Notice of Motions

Order 51 Civil Procedure Rules provides for different kinds of applications that can be
done through Notice of Motions:
• Order 51 rule 1 CPR - All applications to court are by way of motion unless
expressly stated otherwise

• Application for a judgement order where there is an admission

• Application for summary judgment

• Application for stay of proceedings

• Whilst seeking the leave of the court to settle a matter out of court on behalf of
persons with disability

• Applications for lifting or variation of injunctions

(ii) Chamber Summons

• There are no witnesses and evidence is by way of affidavit.

• Where the existence of the agreement or contract is not in dispute

• If there is a pending suit in court

• Application for land ownership by virtue of adverse possession

• Reconstruction of a file

(iii) Originating Summons - Order 37 CPR

• Cases related with contracts for sale of immovable property except where the
existence of the agreement and validity of the contract is in dispute

• Summons by mortgagee, mortgagor or others for relief such as redemption,

delivery by mortgagor etc

• Application for extension of time under the rules of the Limitation Act.

• Anything to do with Government Lands Act or Section 57 of the Registration of

Titles Act

• Application for reconstruction of court files

• Originating Summons can also be applied where specific legislations asks for it
e.g. application under limitation of actions, Advocates Act, matters of adverse
possession etc.
Res gestae
A fact or opinion which is so closely associated in time, place and circumstances with
some act or event which is in issue that it can be said to form a part of the same
transaction as the act or event in issue, is itself admissible in evidence.

Res Judicata
Means the conclusiveness of judgment. This Section requires that once a matter has
finally been decided by a competent court, nobody can be permitted to open it in
subsequent litigation. Res Judicata can apply in both a question of fact and a question of
law. Where the court has decided based on facts it is final and should not be opened by
same parties in subsequent litigation. The only way to avoid it is where there is a
pending appeal or where an appeal has been successful and therefore the decision has
been reversed then one cannot plead res judicata. If no appeal lies of right or an appeal
has been dismissed, under Section 7 one can plead res judicata, the parties will not be
allowed to litigate on the same issue. In order to know whether res judicata applies
between co-defendants, 2 things must exist
 There must have been a conflict of interest between the co-defendant;
 It must have been necessary for the court to decide upon that conflict in order to
grant the relief sought by the plaintiff;
 The questions between the co-defendants must have been finally decided; and
 The co-defendants must have been proper and necessary parties.

Difference between res Judicata and sub judice

With regard to res judicata it relates to a matter already adjudicated upon while sub
judice relates to a matter pending for trial or judicial enquiry. One of the two doctrines
bars trial of the suit where the matter in issue has already been adjudicated upon in a
previous suit this is res judicata, sub judice bars trial of a suit in which the matter is
pending. Under what circumstances can one raise objection on the basis of res judicata
and sub judice? Once the matter is decided unless there is an appeal you can raise
objection under res judicata but where there is an appeal one can raise sub judice

Difference between res judicata and estoppel

Estoppel is a doctrine of equity which has been accepted for century as a mode of
ensuring justice is done as between parties where the law does not satisfy that
requirement. One may look at res judicata as a branch of the law of estoppel and we
have estoppel by verdict or estoppel by judgment or by verdict and the rule of
constructive res judicata is nothing else but a rule of estoppel.

Judgment in default of defence and appearance

A Judgment is a statement given by a Judge on the grounds of a decree or Order.
Default judgment – Made when either the defence fails to enter appearance to defend
within 14days of service of summons to enter appearance or when the plaintiff fails to
appear for determination of the suit

Assuming the defendant has been served and opted not to defend the plaintiff may
apply for judgment in default of defence. Where either party fails to appear for the
hearing the other party may apply for judgment in default of appearance.

Garnishee Proceedings
Order 23 – where one has a decree, but property of the judgment debtor is not in the
hands of the judgment debtor. These are proceedings instituted by the decree holder
against a third-party holding property of the judgment debtor.

Interpleader proceedings
Arises when a person holding property applies to court to determine between two
adverse parties claiming the property, who should get the property. Application is by
originating summons

What to do before u institute a suit - Serve the defendant with a demand letter

Content of a demand letter

Name and address of the advocate, client and recipient

Facts of the case

Act/breach committed
Demand
Damages sought

Threat/consequences of not heading to the demand

Elements of defamation
 Defamation is a false statement about a person to his discredit which exposes
him to hatred, ridicule and causes him to be shunned or avoided by right
thinking members of society.

Forms: libel – permanent form e.g written, printed artistic work, picture
Slander – merely spoken, in form of a sign or a gesture
Elements: the statements are false; Defamatory; clearly referred to the plaintiff,
published to a third person

Defences in defamation
a) justification - the statement is true
b) Fair comments on a matter of public interest
c) Absolute privilege – parliamentary proceedings, judicial proceedings,
statements between advocates and clients and those between husband and
wife, state communication.
d) Qualified privilege – reports on parliamentary and judicial proceedings,
statements made in the performance of a duty i.e statements made to protect
an interest
e) Offer of amends - publication of apology and deposit of a sum of money in
court
f) Consent of the plaintiff to the publication

Difference between set off and counterclaim

Counterclaim happens when the defendant has some claim against the Plaintiff.
Usually, the option is that the Defendant will have a choice either to institute a separate
suit or set up their claim in the defence

A set off happens where the plaintiff has a claim of 1000 and the Defendant argues that
the Plaintiff owes him 500/- you settle for a set-off

There are two major distinctions

1. A set-off maybe described as a shield which operates only as a defence to the
plaintiff’s claim; whereas
2. A counterclaim may be described as being both a shield and a sword. A
Counterclaim is basically a cross-action and is in fact usually treated as a separate
suit even for billing purposes by advocates.
When you draw up a counterclaim and serve the plaintiff, the Plaintiff must draw a
defence to the counterclaim and serve the Defendant. The defence must be specific
and what is not denied is deemed to have been admitted. Whenever you have set-
off the plaintiff has to reply to it.
Is a counterclaim separate document from a defence
A counterclaim is usually treated as a separate suit but in most cases to avoid
multiple suits and reduce costs it forms part of the defence

Trespass: Unlawful interference with one’s body or property without consent.

Trespass to person includes – assault threat to cause grievous harm, battery actual
infliction of harm false imprisonment unlawful restriction of a persons liberty
Trespass to land –
There must be interference
The interference must occur on the possessor’s land or property
The interference must be voluntary/ deliberate/ intentional
The plaintiff must possess the land
The act that caused the trespass must be direct
Defences In trespass to land – Neccessity, Lawful Authority, Licence

Summary judgment
It may be obtained in 2 separate areas
 Where the relief sought by the Plaintiff is for a debt or a liquidated claim;
 Where the claim is for recovery of land with or without a claim for rent and
profits. It is for very straightforward cases

Interlocutory judgment
The court will give an interlocutory judgment (temporary or in between) if the sum
sought is an unliquidated claim.

Liquidated and unliquidated damages

Liquidated – specific figures are given
Unliquidated – not specific

Mitigating circumstances

If a person is sightseeing on a high building, sees an accident and falls down and dies
whom do u sue – one may sue the owner of the building if the building does not have
preventive measures to ensure the safety of persons
Negligence - this is an act or omission which a reasonable man would not do/omit.
Elements to be proved;
 That the defendant owed the plaintiff a duty of care
 That the duty has been breached by the defendant
 That the plaintiff has suffered damages as a result of the breach
It gives rise to the Neighbour principle – in Donoghue v Stevenson – it was
stated that a person ought to bear in mind the consequences of his actions on
his neighbour, and a neighbour is a person who is closely or directly affected
by the results of ones action.

Rylands v Fletcher – the principle of Strict liability

A person who in the course of an unnatural use of his land accumulates something
that would harm another if it escapes is liable for the damages or injury caused
by the escape of the harmful object.

Defences of nuisance
Nuisance may be public or private. Public nuisance is some unlawful act that endangers
or interferes with the lives, property and comfort of the public e.g. an obstruction of a
road. Private nuisance is the unlawful interference with the enjoyment or another’s use
of land e.g. loud noises, smells, smoke.
Defences include:
Statutory authority
Triviality – the act or omission is small
Lawful use of land – the act is lawful
Reasonable act or omission
Prescriptive right – the act had been going on for a period of time without the
plaintiff making a complaint

Ways of commencing a suit

By plaint; notice of motion; originating summons, petition, appeal

What to consider before instituting a suit/Essentials of a Civil Suit

 There must be a court of competent jurisdiction

 There must be parties
 There must be a cause of action
 There must be pleadings
 There must be a subject matter
 There must be relief sought and prayed for;
 There must be service of those pleadings; service and summons
  There must be appearance.

Judicial review, at what stage does the suit commence

This is an application to question or seek to have reversed the decision of a public body
based on an illegality. Done in the high court. Section 8 of cap 26 provide for 3
prerogative orders:
 Certiorari - It is an order for quashing or reversing an action of a public
body/authority. It must be brought within 6 months. Order 53 Rule 2
 Prohibition - Restrains a public body from doing that which is illegal
or infringing on the rights of the applicant. Order 53 Rule 1-leave is
mandatory
 Mandamus requires a public body to do a duty imposed on it by law.
Apply only after requiring the public body to act and it has failed.

An ex-parte application for leave by way of chamber Summons, accompanied

by a statement setting out the remedies sought and the grounds on which they
are sought and a verifying Affidavit. Leave may be granted free or with terms
e.g. Costs, giving security. Application be made by way of notice of motion
within21 days after leave has been granted. R. 3(1)
Notice must be served upon every person who may be directly affected by the
order. Rule 3(2)
An affidavit of service indicating the date, place and time of service, and who
was served must be filed before the notice is set down for hearing. Rule 3(3). R.
4(1) Copies of the statement accompanying the application for leave is to be
served with the notice. Fix the hearing date 8 days after service of the motion.
Hearing is restricted only to the grounds and reliefs set out in the statement
accompanying the application for leave.

How do you enter appearance

Once you receive the summons, a party must enter appearance by filing a
Memorandum of Appearance and you can enter appearance yourself or your
advocate can enter appearance on your behalf. There is a standard document
for this. If a person does not enter appearance, judgment can be entered in
default of appearance.

Modes of terminating proceedings

Striking out of pleadings - on the ground that—
(a) it discloses no reasonable cause of action or defence in law or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
 (d) it is otherwise an abuse of the process of the court,
Summary judgment

Where the defendant is nowhere to be found how do you effect service

The court may on application order the summons to be served by affixing a copy
thereof in some conspicuous place in the court-house, and also upon some conspicuous
part of the house, if any, in which the defendant is known to have last resided or carried
on business or personally worked for gain, or in such other manner as the court thinks
fit.

A person out of the country

In such a case you can serve them outside jurisdiction only after the court grants you
permission to do so. You will apply to the court for leave to serve outside the
jurisdiction of the court. Application is by way of Chamber Summons supported by an
Affidavit. Normally you will tell the court the mode of service that you want to use.

How do you serve a foreigner?

Service can also be ordered by the High Court anywhere in the commonwealth. You
can serve a foreigner within Kenya provided the course of action against them arose in
Kenya and if the foreigners are lawfully in Kenya and on their own volition.

Where the defendant is a public officer or an officer of a local authority, the court may,
if it appears to it that the summons may be most conveniently so served, send it for
service on the defendant to the head of the office in which he is employed, together with
a copy to be retained by the defendant.

Where the defendant is a soldier (but not an officer), the court shall send the summons
for service to his commanding officer, together with a copy to be retained by the
defendant.

Service on the government

The Attorney General being the government legal adviser is mandated to receive all
legal service where the government is a party; you can serve the AG personally or
deliver the summons to the offices that he occupies in his legal capacity. You can also
serve an agent of the Attorney General. In normal practice the Attorney General has
mandated personnel who can receive services on his behalf. You can also serve the AG
by registered mail and the time within which delivery should be effected should be
same as that or ordinary post.

Service on a corporate or company

The accepted practice is to serve the company secretary, a director or any principal
officer of the company. When serving the principal officer one must take full
particulars of the officers and indicate it in the affidavit. If you cannot find any of these
persons then you can effect a service by way of registered post to the last known
available address of the corporation you can look this up in the company registry.

How to effect service to a person in jail/ In police custody

The summons shall be served on him personally in the presence of the officer in charge
of the prison or serve the officer in charge of the prison and if in a police station you
serve the OCS and normally you would have to explain to them who the person is after
confirming that they are in their custody. Whoever receives the document has to sign at
the back of the copy. You need an extra copy to leave to the officer in charge and one to
give to the defendant. You must ensure that your service is acknowledged and always
make a return of service.

When does the defendant have a right to begin

 Where the defendant admits the facts alleged by the plaintiff but raises an
objection on a point of law, the defendant will be entitled to make his
submissions on the point of law. E.g. an objection on limitation of cause of action
being time barred by the Limitation of Actions Act or matter is res judicata or
subjudice. Practice is that the objection should be raised at pleadings. Although
nothing prevents one from raising it at the time of trial.
 Where the defendant admits the fact alleged by the plaintiff but states that the
plaintiff is not entitled to begin e.g. suit for recovery of an alleged debt and in
this case the defendant admits the facts, that in fact he did receive the money
from the plaintiff but that the money was not a debt but rather a gift and is
therefore not liable to repay the money. In this case the defendant shall have
right to begin in order to make submissions in order to show circumstance why
the money should not be paid.

Third party proceedings

These are proceedings instituted to include a party(s) to a proceeding as defendants.
The rationale for 3rd party procedure is to prevent a multiplicity of actions. The 3rd
party is brought to avoid multiplicity and to avoid the same facts being tried with
different results. In 3rd party proceedings one can claim indemnity or contribution.
Indemnity is where a party is alleging that they are entitled to reimbursement. This
could arise from court or contract. For example, under the Law of Insurance the
insurance is bound to indemnify the insured if liability is proved. Indemnity can also
arise from a tort. Contribution is partial indemnity; simple one is saying that they are
supposed to pay but somebody else is also responsible and should pay a portion of the
liability.

Instances when you can settle a suit out of court

 Plaintiff may discontinue suit;

 Plaintiff may withdraw part of his claim.
 Defendant may submit to judgment.
 Defendant may make payment into court in satisfaction of the plaintiff’s claim.
 Defendant may compromise with plaintiff on certain terms.

What is a judgment?
A Judgment is a statement given by a Judge on the grounds of a decree or Order. It is a
final decision of the Court to the parties and the World at large by formal
pronouncement or delivery in open court. Order 20 Rule 4 to 5 set out essential
elements of a judgment:

 contain a concise statement of the facts of the case;

 Contain issues for determination;
 The decisions on each of those points;
 Reasons for each of those decisions.

Striking out of pleadings

Order 51 Rule 13 The court may at any stage of the proceedings order to be struck out
or amended any pleadings in an action or anything in any pleading on the grounds that

 It discloses no reasonable cause of action or defence;

 It is scandalous, frivolous and vexatious.
 It may prejudice, embarrass, or delay fair trial.
 It is an abuse of the process of the court.

Difference between hearing date and mention date?

Hearing date is a date given by the court to the parties of a suit for purpose of the suit to
be heard on that particular date.
Mention date on the other hand is a date given by the court to the parties of a suit for
either setting a hearing date or confirming compliance of orders given by the court to
the parties i.e. filing of submission.

Explain the concept of objector proceedings

Which parts of the election amendments laws were declared unconstitutional by the
court?

• Sections 2, IEBC Act, 2011

• Section 7A (4), Section 7A(5), 7A(6) of the IEBC Act 2011 Paragraphs 5 and 7 of
the second schedule to the Act

• Elections Act Section 39(1)(C), Section 39(1)(E), 39 (1)(D) & section 83

Situations where notice of motion is applied

Explain the orders one can seek in judicial review

Difference between a reasonable man and normal man (omnibus case)

Reasonable man-expected skills

Normal man (omnibus case) - age of majority

Difference between Donoghue vs Stevenson and Rylands vs Fletcher

Difference between review and judicial review

Judicial Review: Proceedings before the High Court to address an alleged violation of
rights under Art. 23(3)(f) in the procedural/substantial administrative actions by public
bodies in their exercise of public authority.

Review: A court may review its own decision primarily in criminal cases in the event of
new and compelling evidence to take a second look at its decision based on such.

Types of torts and their brief explanations

Difference between striking out and dismissal

Principle of jus accrescendi in relation to commorientes

How do you proceed as an advocate when the court orders for ADR

How do you complain against a judge

Types of petitions and their application/use

Election

Constitutional-enforcement of rights

Petition for grants

Divorce-dissolution of marriage

Petition for admission to the bar

Petition to be appointed as senior counsel

Rights that cannot be limited

Habeas corpus

Fair hearing

Solitude or servitude

Inhuman treatment

Suits by Minors, how do you approach the court

Minors lack capacity to institute suits hence an action by a minor is guided by Order 32
of the Civil Procedure Rules. One must seek the consent of the guardian of the minor
and thereafter the action shall be commenced through the next friend.

Interpleader proceedings

Judgment in default v summary judgment.

Injunctions.

Mcnaughten rule

Prima facie case in civil n criminal.

Burden of proof in criminal and civil.

Accused not in court for hearing proceedings what application do you make

Mareva Injunction
Difference between procedural and substantive law

Overriding objectives

She gave a scenario that she has died from an accident and now her people are going to
court, how do they apply (ile ad litem)

a scenario on affidavit of service

Contents of affidavit of service

Laws governing affidavit of service

In a case where a child has had an accident in a school bus how and who will you sue?

Assuming the school says that the fault of the accident was a stray matatu how will
you proceed?

Type of affidavits?

Difference between verifying affidavit and supporting affidavit?

In a civil suit who begins the case?

What is the name of that process?

What documents accompany a plaint?

Cost implications of a demand letter

Type of pleas

Your clients are the parents of a child who was in an accident and the child passed
away due to that accident. The company car which caused the accident is insured but
they have not been compensated. Advice on the process. Describe the heading in the
civil suit from q2 above

Strict liability

Vicarious liability

What to do if a person is not a believer while taking oath

What is the ejusdem generis rule?

Ejusdem generis is Latin word meaning "of the same kind". It is used to interpret
loosely written statutes. Where a law lists specific classes of persons or things and then
refers to them in general, the general statements only apply to the same kind of persons
or things specifically listed.

E.g. if a law refers to automobiles, trucks, tractors, motorcycles and other motor-
powered vehicles, "vehicles" would not include airplanes, since the list was of land-
based transportation.

Meaning of the seriatim clause in a defence

Seriatim is a Latin word meaning ‘in series or one by one’.

In every written statement of defence, the defendant must specifically deny every
allegation of fact made in the plaint unless of course he intends to admit them.

The Plaintiff is also expected to specifically deny every allegation made in the counter
claim unless he intends to admit them.

Order 2 rule 11 of Civil Procedure Rules states as follows: (3) Subject to sub-rule (4),
every allegation of fact made in a plaint or counterclaim which the party on whom it is
served does not intend to admit shall be specifically traversed by him in his defence or
defence to counterclaim; and a general denial of such allegations, or a general statement
of non-admission of them, shall not be sufficient traverse of them.

What happens when a plaintiff files a case and 2 years on he has not appeared, what
options are available to the defendant

The defendant can make an application for dismissal of a case for Want of Prosecution,
this is as per Order 17 Rule 2(3) of the Civil Procedure Rules 2010.

It's also a pre-requisite that such an application for dismissal must be brought to the
notification of both parties.

Difference between judgement, judgement in default and summary judgement

A judgement is the final decision made on the matter after both parties have presented
their case and have argued it out.
Judgement in default is made when one party fails to appear in court after being served
with the summons. It is also final but can be set aside if the other party seeks leave of
court by giving reasons for his non-appearance

Summary judgement is made by the judge by looking at the facts presented by both
plaintiff and defendant. And deciding that the plaintiff can't prove or the defendant
can't prove otherwise. This judgement is interlocutor

What is the difference between:

Verifying affidavit: Verifying affidavit states that the averments made are true.

A divorce petition is also supported by a verifying affidavit.

Replying affidavit: Replying affidavits are filed in response to the facts raised in the
supporting affidavit. You file it together with a notice of motion.

Supporting affidavit: A supporting affidavit accompanies good defence to support the

grounds of opposition by the defendant. Generally speaking, ALL applications are
accompanied by a supporting affidavit. The affidavits adduce evidence in the form of
annextures.

What are representative suits?

Representative suits are suits filed under Order 1 Rule 8 where parties with the same
cause of action seeking the same relief/remedy from the respondent institute a suit
under one or more plaintiffs (but not all of them) are allowed to sue and the judgement
affects them all. It prevents multiple suits on the same matter being heard individually.

What is the tarquand rule?

The tarquand rule states that people transacting with a company believe that internal
matters are handled properly and cannot inquire as to how the property is run - Royal
British Bank v Turquand

What are the various ways of attacking a plaint?

You can attack a plaint by:
set off

counter claim

defence

How do you serve a foreigner?

Provided for under Order 5 Rule 21. You may serve a foreigner as long as he/she is in
the commonwealth. You will serve through the High Court

You will seek leave of the court first with an application made by way of chamber
summons supported by an affidavit. You will then tell the court the mode of service to
use.

Difference between special damages and general damages

General damages are those damages that can’t be easily assigned a monetary value e.g.
pain and suffering.

Special damages represent economic losses e.g loss of earnings.

Generally speaking, general damages can relatively easily be quantified whilst general
damages cannot.

Special damages must be specifically pleaded and proved to warrant any award to that
effect.

Set off is used as a shield to the plaintiffs claim. For instance if you sue me for 100 bob
then I file a defence stating that you also owe me 100 bob, then the debts would just
cancel out hence setting off.

Counter claim - under Order 2 Rule 11, if you have a claim against the plaintiff, the
defendant has the option of instituting another proceeding if it can be settled in the
same suit without delay or inconvenience

What are third party proceedings?

Third party proceedings arise where a defendant in a suit claim against any person who
is a co-defendant or who is not a party to the proceedings that the latter is or may be
liable to the defendant for all or any part of the plaintiff’s claim against the defendant.
What is discovery under Civil Procedure and how is it done?
Section 22 Civil Procedure Act - Discovery is a pre-trial procedure whereby each party
investigates the facts of the case by obtaining evidence from the opposing party. It can
be done through:

• Delivery and answering of interrogatories

• Admitting documents and facts
• Inspection
• Production
• Impounding
• Return of documents to be produced as evidence

The court may order such documents to be produced or issue summons to persons to
produce the documents or order a fact to be proved by affidavit.

Difference between substantive law and procedural law

Substantive law details the rights of parties in law whilst procedural law lays down the
process by which the right of parties is to be enforced.

Judicial Review steps (very examinable in exam and orals, pay special attention to this)
The procedural law relating to judicial review is under Order 53 CPR and requires an
applicant to first apply to the High Court for leave to institute the application for
judicial review.

APPLICATION FOR LEAVE STAGE- permission of the High Court has to be obtained
before a claim of JR can be commenced; this is done by way of chamber summons

• The applicant makes a chamber summons application.

• The application must be accompanied by a statement setting out the name and
description of the applicant, the relief sought and the grounds for the relief sought.
• The application must be supported by affidavits verifying and setting out the facts
and evidence relied upon.
• The applicant must give notice of the application for leave not later than the
preceding day to the High Court Registrar. This notice must be accompanied by
copies of statutory statement and verifying affidavits to be used in the application for
leave.
• Grant of leave to apply for prohibition or certiorari may operate as a stay of the
proceedings in question pending hearing and final determination of substantive
application. There can be no stay if the substantive order sought is mandamus since
mandamus issues to compel action on the part of an authority which has omitted to
act and as such, it logically follows that there is no action to be stayed.
• Leave to apply for certiorari must be made not later than 6 months after the date of
the proceeding/decision to be quashed.
• No rules yet to limit time for applying for mandamus and prohibition.

THE SUBSTANTIVE APPLICATION STAGE

• Where leave has been granted, the applicant is required to file the substantive
application for judicial review with the High Court and apply for the orders for
which leave has been granted within 21days from the date the order for leave is
made.
• The application must be made by Notice of Motion.
• The Notice of motion must be served to all persons directly affected by the
application.
• All persons affected must be notified of the date set for hearing.
• A return of service must be filed before the hearing.
• The notice of motion must be accompanied by copies of the statutory statements and
copies of the affidavits which accompanied the application for leave.
• Copies of any affidavits accompanying the application for leave shall be supplied on
demand, and no grounds shall be relied upon or any relief sought at the hearing
except the grounds and relief set out in the said statement.
• However, the court may allow the said statement to be amended or use of further
affidavits to deal with new matters.

5 types of injunctions
• Prohibitory injunction
• Mandatory injunction
• Interlocutory or temporary injunction
• Anticipatory injunction
• Perpetual injunction
• Interim injunctions
• Mareva injunctions
• Injunctions against the government to protect children rights.

Interlocutory or temporary injunctions - limited to apply for this only until final
determination by the court of the right of the parties.

Interim injunctions - an order in the nature of interlocutory injunction but restraining

the defendant only after a named day or further order and its granted ex parte

Mareva injunction - a pre-trial injunction restraining the defendant and persons with
control over defendant’s property or assets from dealing with the assets in ways that
will be detrimental to the plaintiff’s interests pending the trial.

Prohibitory injunctions - acts to refrain the defendant from doing certain things

Mandatory injunction - Requires the respondent to do certain things

Explain interpleader and the procedure it undertakes

Section 58 Civil Procedure Act - Interpleader proceedings or application occurs in
situations a third party is in custody of a property claimed by two or more claimants.
The third party will then move to court to determine the true owner of the property.
The third party will have to prove to the court that:

• He has no interest whatsoever in the property except for his charges or costs
• That he has not colluded with either of the claimants and
• That he will be willing to surrender the subject matter to the court.

Give situations where you use:

Notice of Motions
Order 51 Civil Procedure Rules provides for different kinds of applications that can be
done through Notice of Motions:

• Order 51 rule 1 CPR - All applications to court are by way of motion unless expressly
stated otherwise
• Application for a judgement order where there is an admission
• Application for summary judgment
• Application for stay of proceedings
• Whilst seeking the leave of the court to settle a matter out of court on behalf of
persons with disability
• Applications for lifting or variation of injunctions

Chamber Summons
• There are no witnesses and evidence is by way of affidavit.
• Where the existence of the agreement or contract is not in dispute
• If there is a pending suit in court
• Application for land ownership by virtue of adverse possession
• Reconstruction of a file

Originating Summons - Order 37 CPR

• Cases related with contracts for sale of immovable property except where the
existence of the agreement and validity of the contract is in dispute
• Summons by mortgagee, mortgagor or others for relief such as redemption, delivery
by mortgagor etc
• Application for extension of time under the rules of the Limitation Act.
• Anything to do with Government Lands Act or Section 57 of the Registration of Titles
Act
• Application for reconstruction of court files
• Originating Summons can also be applied where specific legislations asks for it e.g.
application under limitation of actions, Advocates Act, matters of adverse possession
etc.

Petitions
Types of petitions and their application/use

What happens when a plaintiff files a case and 2 years on he has not appeared, what
options are available to the defendant
The defendant can make an application for dismissal of a case for Want of Prosecution,
this is as per Order 17 Rule 2(3) of the Civil Procedure Rules 2010.

It's also a pre-requisite that such an application for dismissal must be brought to the
notification of both parties.

Difference between judgement, judgement in default and summary judgement

A judgement is the final decision made on the matter after both parties have presented
their case and have argued it out.
Judgement in default is made when one party fails to appear in court after being served
with the summons. It is also final but can be set aside if the other party seeks leave of
court by giving reasons for his non-appearance

Summary judgement is made by the judge by looking at the facts presented by both
plaintiff and defendant. And deciding that the plaintiff can't prove or the defendant
can't prove otherwise. This judgement is interlocutor

Difference between hearing date and mention date?

Hearing date is a date given by the court to the parties of a suit for purpose of the suit to
be heard on that particular date.

Mention date on the other hand is a date given by the court to the parties of a suit for
either setting a hearing date or confirming compliance of orders given by the court to
the parties i.e. filing of submission.

Joinder of parties – ORDER 1 CPR

Parties who have a right to a relief in the same act or transaction/series of acts or
transactions may be joined as plaintiff. One may join parties liable in the same
transaction/against whom a right to relief exists in the same transaction/series of
transactions

What the court considers in granting an injunction

 That the applicant has a strong prima facie case/ case with probability of success

 That the matter is irreparable through damages

 An applicant for interim injunction must have a legal right in the subject matter
which he seeks to prevent by the conduct of the defendant to violate.

 One of the most important principles is the preservation of the property which is
the subject matter of the suit.

 In the application, the court must consider the balance of convenience, the
opposite of the balance of convenience.

 For an interim injunction to be granted, the applicant must show the existence of
a real urgency and not a caricature of it.
  Interim injunction can only be granted in cases of emergency.

 The applicant must not delay in bringing the application.

 There must be a subsisting action and relief to found an application for interim
injunction postulates that the applicant has a right the violation of which seeks to
prevent and in order to do so effectively, to ensure at that stage of proceedings
that the subject matter of the right be maintained in status quo.

 The court must consider the gravity of injury and the fact that the loss is
irreparable.

 The applicant must establish or show that it is virtually or practically impossible

to bring a motion on notice considering the compelling sudden events.

 The applicant must show that the award of damages will not be adequate or
enough to compensate him.

Representative suits

These are suits instituted on behalf of a group of people to protect their rights and
interests. Representative suits are allowed in situations where instead of having a
multitude of plaints in court, you allow one or two to sue but judgment affects all of
them. One must satisfy the court that the parties have a common grievance and
common interest. If that does not appear then the court will introduce leave for
representative action

Difference between replying, verifying and supporting affidavit

Replying – gives facts answering to

Verifying – used to accompany pleadings drafted during the preliminary proceedings

(plaint, defence and petitions) to verify statements made therein.

Supporting - sworn by the advocate to support the correctness of pleadings made

during the occurrence of the suit in question(chamber summons, notice of motion,
originating summons)

Affidavit of service – filed by process serves stating how service was carried out
How is service effected

The rule as to service is that it should be effected personally (Order 5). Where the
defendant cannot be found the server should use all due and reasonable diligent effort
to search for the defendant before he conducts a substituted service i.e. service on the
wife/husband. Before affixing the summons on the defendants door, the server must
also use all due reasonable effort to find the defendant or authorized persons and must
state on the affidavit of service full particulars of the premises

Persons authorized by law to effect service

Service will be done by an authorized process server, or by the court itself, which is
rare, or through the advocate’s offices where parties are represented. In practice the
advocates will have a clerk who doubles up as a process server

Defence, various ways of attacking the plaint

 One may traverse or deny;

 One may confess and avoid;

 One may object on a point of law;

 One may admit or make an admission;

Elements of defamation

The statements are false and defamatory, and they refer to the plaintiff and have been
published to a third person.

Review

Review simply stated means to look once again. Under the Civil Procedure Act review
is a judicial re-examination of the same case by the same judge in certain circumstances.
Section 80 of the Act gives the substantive right of review in certain circumstances,
while Order 45 provides the procedure thereof

Sentencing –
Occurs when the court makes the order or issues punishment to the accused person

Volenti non fit injuria –

A person cannot claim a relief if he had consented to the tort or acquiesced his rights or
was aware of the tort but for some time did not protest or bring a claim.

Difference between judgment and ruling

Judgment – the decision of a court in proceedings involving a suit

Ruling – decision of a court in cases of a petition/appeal/application

Defences in tort

 Contributory negligence

 Voluntary assumption of risk - volenti non fit injuria

 Illegality

 Acts of God

 Mistake

 Necessity

 Self defence

The principle in the case of Donogue v Stevenson

 The principle in this case is the neighbour principle.

 One must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour.

 A neighbour was stated to be – persons who are closely and directly

affected by my act that I ought to reasonably have them in contemplation
as being so affected when I am directing my mind to the acts or omissions
which are called in question

Res judicata
Provided for under Section 7 of the CPA.This doctrine requires that there should be an
end to litigation or conclusiveness of judgment. Where a court has decided and issued
judgment then parties should not be allowed to litigate over the same issues again. This
doctrine requires that one suit one decision is enough and there should not be many
decisions in regard to the same suit. It is based on the need to give finality to judicial
decisions. The only way to avoid it is where there is a pending appeal or where an
appeal has been successful

Sub judice rule

The sub judice rule regulates the publication of matters which are under consideration
by the court. Matters are considered to be sub judice (Latin for 'under judgment') once
legal proceedings become active.

NOLLE PROSEQUI

A Nolle Prosequi is a statement that the Republic intends to discontinue the

proceedings and is entered by the Attorney-General. The Attorney-General may enter a
nolle prosequi at any stage of the proceedings before verdict or judgment. There are two
modes of entering a nolle prosequi under the Criminal Procedure Code. First, the
Attorney-General may state it in court or in he may inform the court in writing that a
nolle prosequi has been entered2. Once a nolle prosequi is entered, it stays the
proceedings in respect of which it was entered sine die and discharges the accused
person(s). 'Nolle Prosequi' is different from such withdrawal in that it is not subject to
any form of control by the courts and is a power exclusively vested in and exercisable
by the Attorney-General unless he delegates in writing pursuant to section 83 of the
criminal procedure code to his senior subordinates - Solicitor-General, The Deputy
Public Prosecutor or a State Counsel

When an accused is discharged following the entry of nolle prosequi such discharge is
no bar to subsequent proceedings on account of the same facts

The rule in Rylands vs Fletcher

25
Section 82(1) of Criminal Procedure Code (Cap 75).
A person who in the course of use of his land brings on it anything likely to do harm if
it escapes is held responsible if it escapes and interferes with the use of the land of
another.

As an Advocate how do you proceed with a matter of a dead person and a minor

 A Minor may sue or be sued. Order 32 a suit by a minor shall be instituted in his
name by the next friend of the minor Where the defendant is a minor, the court,
on being satisfied of the fact of his minority, shall appoint a proper person to be
guardian ad litem of such minor

 A Dead person may sue or be sued. The executors or administrators of a

deceased person, or the trustees may take out as of course, an originating
summons, returnable before a judge sitting in chambers for such relief of the
nature or kind following, as may by the summons be specified, and as
circumstances of the case may require. Order 37

Representative Suits. Order 37

These are suits by or against trustees, executors and Administrators of a deceased’s

estate. In all suits concerning property vested in a trustee, executor or administrator,
where the contention is between the persons beneficially interested in such property
and a third person, the trustee, executor or administrator shall represent the persons so
interested, and it shall not ordinarily be necessary to make them parties to the suit, but
the court

may, if it thinks fit, order them or any of them to be made parties.

Where there are several trustees, executors or administrators, they shall all be made
parties to a suit against one or more of them.

How to commence a civil suit and a criminal suit

Civil suit

Make a demand to the defendant through a demand letter.

When the defendant denies the claims, draft plaint and supporting affidavit and present
them to the court registry for stamping.
Prepare summons to enter appearance for signing by the court to be served on the
defendant

Criminal suit

After a complaint is made the police officer prepares a charge sheet stating the
statement of offence and particulars of the offence and files it in court. Court then issues
a warrant of arrest, the accused is arrested and arraigned in court.

Negligence

Arises where a party who owes another a duty of care, is in breach of that duty and as a
result there occurs a non-remote damage.

Requirements for Negligence

Duty of care situation

Foreseeability

Proof that defendant’s conduct was careless

Causal connection between defendant’s carelessness and damage

Extent of damage attributable to defendant

Monetary estimate of that damage

What is notice of motion

Methods of instituting a suit

Remoteness of damage

Even where the defendant's breach of duty is a cause in fact of the claimant's damage,
damages may be denied on the grounds that the breach of duty was not the legal cause
of some of the damage suffered. In these cases the damage in question is said to be too
remote. Policy issues are at work in this area as the court will not wish to impose an
unfair or unduly heavy burden on the defendant or his insurers.

What is discovery in civil litigation

Difference between a judgment and decree

Instances when you can settle a suit out of court

a) Plaintiff may discontinue suit;

b) Plaintiff may withdraw part of his claim.

c) Defendant may submit to judgement.

d) Defendant may make payment into court in satisfaction of the plaintiff’s claim.

e) Defendant may compromise with plaintiff on certain terms.

Difference between substantive & procedural law

Strict Liability

Strict liability is an exception to the fault principle. It is liability without fault. Where a
tort is one of strict liability there is no need to prove fault on the defendant’s part. Once
the plaintiff is proved to have suffered damage from the defendant’s wrongful act, the
defendant is liable notwithstanding with there may have been no fault on his part. A
specific instance of strict liability is afforded by the Rule in Rlylands v. Fletcher

Anton Piller and Mareva Injunction

Ways of responding to an application

Difference, Between judicial review, review and appeals

Interlocutory proceedings

What is mandatory injunction

What is Judicial Review

What are the three writs in judicial review

What are representative suits

What is the tarquand rule

What are the various ways of attacking a plaint

What is an injunction?

When can one apply for an injunction?

Matilda asked about JR. The documents to file at leave stage, what each document
says and what happens in the substantive stage.

What orders does one seek in getting a JR.

Is there a difference between JR in the CoK and the one under Order 53.

What is a statement of claim, it’s format, what to annex, its difference with a plaint.

Difference between JR and Review

If one can appeal after applying for Review

If yes, what will be the grounds of appeal? Is it on the review or the judgement?

Types of pleadings

What is a ruling?

What is a judgement?

What is a holding?

Where do you file cases above 20,000,000?

What is the meaning or effect of serving summons to enter appearance,

How to enter appearance,

Does the plaint accompany summons while serving the summons, documents
accompanying the plant

How to serve a convict in prison

Who serves? His qualification

When does one use an OS.

What is a petition.

Types of petitions

Instances to use summary judgment

Instances not to use summary judgment

Why defamation suit cannot be done by summary judgment

Ways of approaching the court

Way of approaching the court when seeking an extension of time limitations

Which order provides for notice of motion

Without prejudice

Provided for under sec 23 of the Evidence Act Admissions made without prejudice in
civil cases cannot be proved they're made either upon an express condition that
evidence of such admissions is not to be given or in circumstances from which the court
can infer that the parties agreed together that evidence of it should not be given.

Exceptions are

a) If the issue is whether negotiations resulted in an agreement or not

b) Waiver by parties

c) Need to prove fraud or perjury

d) To explain delay in proceedings

e) If its evidence proving violation of Bill of Rights

Insider trading is the trading of a public company's stock or other securities (such as
bonds or stock options) based on material, nonpublic information about the company.

Principles of injunctions

An injunction is an order of the court requiring someone to do or refrain from doing

something until the determination of a matter

Giella v Cassman Brown and Mrao v First American Bank

Prima facie case with high probability of success

Irreparable harm will be suffered if the injunction isn’t granted that damages would not
suffice to remedy

If in doubt decide on a balance of convenience

Interpleader proceedings

Order 34 of the Civil procedure Rules

Property that is adversely claimed by 2 or more parties

Collusion

The property is in your possession

Ready and willing to deliver the property to the rightful owner

Judgment in default v summary judgment.

Summary judgement is where a party enters appearance but they do not disclose a
good defense or refuse to appear during trial

Accused not in court for hearing proceedings what application do you make

Habeas corpus Art 25 of the Cok through a constitutional petition under Art 51 of the
CoK

Deprivation of Liberty Act - (section 7) - the right to a fair hearing and a fair trial as per
article 50 of the constitution

Which are the ways for pre-trial disposal of suits

● Out of court Settlement

● ADR - Negotiation, Mediation and Arbitration

● Summary judgement - when defendant is present but gives a weak case

● Judgement in default - when defendant doesn’t appear in court and is awarded

to the plaintiff

● Judgment on admission - once a party unequivocally admits, then judgement is

entered

A scenario on affidavit of service

● Shows that a party was served by one of the parties in order to quash a claim of
not being served

Contents of affidavit of service

● Process server’s name and address

● He’s a licenced process server

 ● His process server number

● Details of service

○ Who gave the documents

○ By whom

○ To serve on whom

○ Date of service

○ The time of service

○ Who accepted service

○ Annex the documents

● If they refused service, state what happened

● Finish with the jurat

● Place for commissioner of oaths

● Drawn and filed by:

Laws governing affidavit of service

● Statutory oaths and declarations act

● The Civil Procedure Rules, Order 5

I have served a defendant with a summons to enter appearance, what is he supposed to

do and after how long

He should file a Memorandum of appearance within 14 days

I am a decree holder, in what ways can i execute such a decree

Through garnishee proceedings

Attachment of property

Auction

Considerations taken by a court in granting an injunction

Giella v Casman Brown and Mrao v First American Bank

 1. Must establish he has a prima facie case with a probability to succeed

2. Must suffer and irreparable harm incapable of being remedied by damages

3. If court is in doubt, it will implore a balance of convenience to decide

Interlocutory proceedings

Instituted by parties on basis that a matter has come into consideration that needs to be
dispensed with before the continuance of the main suit

What is sub judice

Section 6 of civil procedure rules

“no court can hear matters in between same parties with same claim pending in another
court with jurisdiction “

In Edward R Ouko v speaker of NA

Justification

•interest of parties

•interest of justice

Test

•must exist 2 or more suits filed consecutively

•matter in issue is same

•parties are same

•suit pending in court with jurisdiction to grant relief

What are prohibitory injunctions (give an application scenario and state how you
approach the court and the same for mandatory injunction

Prohibitory - refrain from doing something

Mandatory- do certain thing

Application
 ● notice of motion + supporting affidavit order 40

A client comes to you at 8 am his property is being auctioned at 3pm how do you help
them

Stay of execution

Matilda asked about JR. The documents to file at leave stage, what each document
says and what happens in the substantive stage.

1. Leave stage

Applicant makes an exparte application to judge in chamber for leave

Docs

 chamber summons
 statutory statement
 verifying affidavit
 supporting affidavit

2. Substantive stage

Within 21 of order for lease

Docs

 Notice of motion
 Supporting affidavit

What orders does one seek in getting a JR.

1. Certiorari

Order for quashing or reversing an action of a public body

2. Prohibition

An order restraining a public body from doing that which is illegal

3. Mandamus

An order that a public body does a duty imposed by law

 1. Supplementary

2. Replying affidavit

Difference between verifying affidavit and supporting affidavit?

In a civil suit who begins the case?

Order 18. - party who has right to begin shall state his case

What is the name of that process?

Opening statement

What documents accompany a plaint?

Verifying affidavit

List of docs

List of witnesses

Witness statement

Demand letter

Ways of resolving a civil dispute.

Arbitration

Mediation

Negotiation

Litigation

Settlement

What's the essence of signing a demand letter?

A demand letter should be signed by an advocate.

It is a document that is chargeable under the Advocates (Remuneration) Order, 2009
and therefore attracts the prohibition under section 34 & 35 cap 16, i.e., not to be drawn
by an unqualified person, or remuneration thereof accepted by an unqualified person

Further, signing in the name of the firm is not sufficient as it is not safe – it may lay the
demand letter open to challenge as not being given either by the party or by an
advocate as his representative on his behalf: Singh v Munshi Ram (1937) 4 EACA 9

Authentication - since presented in court and also under order 3

Without prejudice phrase

It means a statement made without prejudice cannot be brought to court and used as
evidence of admission. It is sometimes referred to as 'off the record'. It is a form of legal
privilege with an aim of the parties attempting to settle and negotiate on the matter.

Difference between a ruling and a judgment.

A ruling is a court's authoritative decision on the issues raised about the question of law
and admissions ability of evidence. Rulings are inler;octory while judgments are final

A judgement is the court's final decision on the whole case. It's done at the conclusion of
a case.

What is a miscellaneous application?

An application on a certain aspect in an ongoing trial or on its own. Its a side issue on
something out the main suit, i.e. if lost file

Difference between counterclaim and set off

Set Off Counterclaim

Def: A monetary demand made by the Def: a claim made to offset another
defendant against the plaintiff that is claim, especially one made by the
based on some transaction or occurrence defendant in a legal action.
 other than the one that gave the plaintiff
grounds to sue.

Its A shield in law Its a weapon in law

What is the difference between an interlocutory injunction and interim injunction

What are representative suits

Order 1 Rule 8 CPC

A representative suit is a suit filed for or against one or more persons on behalf of
themselves and others having the same interest in the suit.

They must share a community of interest in the subject matter of the suit.

It is intended to prevent a multiplicity of suits by such a huge number of interested

persons.

Rule 8 ordains in mandatory terms that notice of the suit must be given to all persons on
whose behalf or for whose benefit a suit is instituted or defended.

such notice shall be given either by personal service or by public advertisement in cases
where the number of persons or any other cause such service is not reasonably
practicable.

Lo o *Public advertisement must disclose the following*

the nature of the suit

the reliefs claimed

information that the persons interested may apply to be made a party in the suit and
may prescribe time within which the persons interested may so apply.

declaration that it has been issued pursuant to the order of the court citing the date and
the judicial officer who issued it for better grounding.

What are the various ways of attacking a plaint

1.Traversing

This is where a defendant denies the allegations stated in the plaint and welcomes the
plaintiff to strict proof thereof

2. Admitting

Defendant admits to the allegations in the plaint

3. Confession and avoidance

Defendant confesses to the allegations so as to avoid legal Implications that come with it

4. Raising a point of law

When a certain procedure or law has not been followed you the matter cannot be heard
until it is addressed

5. Counterclaim.

It acts as a shield and a sword. Shield yourself from the plaintiffs allegations and attack
as counterclaim.

A counterclaim is a claim made to rebut a previous claim.

6. Request for further particulars.

7. Set off

You don't deny the allegations but challenged the liability posed against you by the
plaintiff.

Types of injunctions

A preliminary or temporary injunction is a provisional remedy that is invoked to

preserve the subject matter in its existing condition. Its purpose is to prevent dis-
solution of the plaintiff's rights. The main reason for use of a preliminary injunction is
the need for immediate relief. Preliminary or temporary injunctions are not conclusive
as to the rights of the parties, and they do not determine the merits of a case or decide
issues in controversy. They seek to prevent threatened wrong, further injury, and
irreparable harm or injustice until such time as the rights of the parties can be
ultimately settled. Preliminary injunctive relief ensures the ability of the court to render
a meaningful decision and serves to prevent a change of circumstances that would
hamper or block the granting of proper relief following a trial on the merits of the case.

A motion for a preliminary injunction is never granted automatically. The discretion of

the court should be exercised in favor of a temporary injunction, which maintains the
status quo until the final trial. Such discretion should be exercised against a temporary
injunction when its issuance would alter the status quo.

Preventive Injunctions An injunction directing an individual to refrain from doing an

act is preventive, prohibitive, prohibitory, or negative. This type of injunction prevents a
threatened injury, preserves the status quo, or restrains the continued commission of an
ongoing wrong, but it cannot be used to redress a consummated wrong or to undo that
which has already been done.

Mandatory Injunctions Although the court is vested with wide discretion to fashion
injunctive relief, it is also restricted to restraint of a contemplated or threatened action.
It also might compel Specific Performance of an act. In such a case, it issues a
mandatory injunction, commanding the performance of a positive act. Because
mandatory injunctions are harsh, courts do not favor them, and they rarely grant them.
Such injunctions have been issued to compel the removal of buildings or other
structures wrongfully placed upon the land of another.

Permanent Injunctions A permanent or perpetual injunction is one that is granted by

the judgment that ultimately disposes of the injunction suit, ordered at the time of final
judgment. This type of injunction must be final relief. Permanent injunctions are
perpetual, provided that the conditions that produced them remain permanent. They
have been granted to prevent blasting upon neighboring premises, to enjoin the
dumping of earth or other material upon land, and to prevent Pollution of a water
supply.

How do you serve a foreigners

The process is found under Order 5, rule 29 of the Civil Procedure Rules.

After obtaining leave to serve a notice of sermons in a foreign country, the notice must
be sealed with the seal of the H/Court of Kenya.

After that, it's forwarded by the Registrar to the CS in charge of Foreign Affairs together
with a copy of the translated version in the language of the country in which service is
to be effected.
The same is accompanied with a request for further transmission of the notice through
the diplomatic channels to the govt of the foreign country in question. This request is in
Form No. 7, Appendix A.

An official certificate or a declaration upon oath thereafter is transmitted through

diplomatic channels from the govt or court of the foreign country to the HCourt will be
evidence of service of Summons to the defendant.

If it however declares that efforts to serve the notice of Summons were unsuccessful, the
plaintiff, through an ex parte application, could obtain orders for substituted service of
notice as under Form 9, Appendix A.

Difference between special damages and general damages

General damages are damages awarded for things that do not come with a price tag; not
quantifiable e.g. pain and suffering

Special damages are damages awarded for financial losses incurred that directly result
from an action or injury, e.g. medical bills. They must be proven.

Difference between a set off and counter claim

A counterclaim is essentially a cross-action where a defendant in a suit would respond

to a plaint by the plaintiff with a separate claim independent of the plaintiff's

A set-off on the other hand is a claim set up against another, where it essentially offsets
the original claim made. For instance, where there are mutual debts between the
plaintiff and the defendant, one debt may be settled against the other, usually resulting
in the plaintiff's claim being reduced in a suit for recovery of money.

What is a garnishee proceeding

Garnishee proceeding is a process of execution against a judgement debtor whose

money is in the hands of a third party/garnisher (eg a bank) in order to attach the
money instead to the judgement creditor.

What are Mareva Injunctions?

Mareva injunction is a freezing order and is an order restraining or enjoining a person

from dissipating an asset directly or indirectly.
The grant of a freezing injunction is governed by principles quite distinct from those
laid down for ordinary interim injunctions. Before granting a freezing injunction, the
Court will usually require to be satisfied that; -

 The Claimant has ‘a good arguable case’ based on a pre-existing cause of action.
Prima-facie evidence
 The Claim is one over which the Court has jurisdiction.
 The defendant appears to have assets within the jurisdiction.
 There is a real risk that those assets will be removed from the jurisdiction or
otherwise dissipated if the injunction is not granted.
 The balance of convenience is in favor of granting the injunction.

What is the test applied in granting injunctions

The grounds that should be satisfied.

 That it is a prima facie case with a high probability of success.

 That there is irreparable injury that cannot be compensated with damages.
 That there is a balance of convenience in favour of the applicant.
 Jurisdiction

What are interpleader proceedings?

A suit filed by a person holding property being adversely claimed by two or more
people

It’s by way of Originating Summons if it’s a fresh suit and by way of Chamber
Summons if it’s made within a pending suit

The applicant must prove neutrality

Provided for under sect 58 of the CPA and order 34 of the civil procedure rules

What is a default judgement and how do you make a temporary judgement final.

Default Judgment is a judgement entered when a Defendant fails to enter appearance

by filing a memorandum of appearance.
A temporary Judgement becomes final when the Defendant doesn’t appear in court to
seek the default judgment be set aside.

If the default judgment was only for a liquidated sum, then after Formal proof of the
unliquidated sum a final judgment will be entered.

Difference between statutory declaration and affidavits

An affidavit is a sworn written statement of fact whereas a statutory declaration is a

statement of fact but not sworn.

An affidavit is often signed in front of a notary public whereas a statutory declaration is

often signed in front of an attorney or justice of peace.

What is sub judice

The res sub judice rule is codified in Section 6 of the Civil Procedure Act as follows:

No court shall proceed with the trial of any suit or proceeding 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 any other court having jurisdiction in Kenya to grant the relief claimed

Simiyu asked about JR. The documents to file at leave stage, what each document says
and what happens in the substantive stage.

Leave stage. (done ex parte)

1. Chamber summons

2. Statement of claim

3. Verifying affidavit (in statement of claim)

You have to move court within 6 months for the leave stage. (Certiorari)

File for substantive within 21 days after leave stage

Substantive/application

1. Notice of motion

2. Supporting affidavit

What orders does one seek in getting a JR.

1. Mandamus

2. Certiorari

3. Prohibition

Ndung’u asked if there’s a difference between the JR in the CoK and the one under Order
53.

CoK gives right but order 53 gives procedure.

COK- Article 23 you can ask for more orders, that is conservatory orders, injunction,
declaration

Order 53- (Civil cases) limited to the orders above

What is a ruling?

What is a judgement?

What is a holding

What is the meaning or effect of serving summons to enter appearance,

How to enter appearance,

Does the plaint accompany summons while serving the summons, documents
accompanying the plant

How to serve a convict in prison

Who serves? His qualification

How long does an interlocutory injunction last once the order has been granted.
When does one use an OS

Order 37:

1. Administration of trust

2. Summons by vendor or a purchase of land

3. Summons by mortgagee, morge and others

4. Caveat

5. Extension of limitation period

6. Adverse possession

7. Application under RLA

8. Applications under MPSR

9. Summons of Member of partnerships

10. Summons by persons interested in deeds or will

11. Variation of trust

12. Discretions for summons

13. Drafting an Interpleader.

What is a petition

A petition is a legal document formally requesting a court order. In practice, it is used in

constitutional/election matters, divorce/annulment and application to be admitted in the
bar

Types of petitions

 Election petition
 Constitutional petition/JR Petition
 Divorce petition
 Bankruptcy petition
 Admission petition

Res gestae
A fact or opinion which is so closely associated in time, place and circumstances with
some act or event which is in issue that it can be said to form a part of the same
transaction as the act or event in issue, is itself admissible in evidence.

Res Judicata

Means the conclusiveness of judgment. This Section requires that once a matter has
finally been decided by a competent court, nobody can be permitted to open it in
subsequent litigation. Res Judicata can apply in both a question of fact and a question of
law. Where the court has decided based on facts it is final and should not be opened by
same parties in subsequent litigation. The only way to avoid it is where there is a
pending appeal or where an appeal has been successful and therefore the decision has
been reversed then one cannot plead res judicata. If no appeal lies of right or an appeal
has been dismissed, under Section 7 one can plead res judicata, the parties will not be
allowed to litigate on the same issue. In order to know whether res judicata applies
between co-defendants, 2 things must exist

● There must have been a conflict of interest between the co-defendant;

● It must have been necessary for the court to decide upon that conflict in order to
grant the relief sought by the plaintiff;

● The questions between the co-defendants must have been finally decided; and

· The co-defendants must have been proper and necessary parties.

Difference between res Judicata and sub judice

With regard to res judicata it relates to a matter already adjudicated upon while sub
judice relates to a matter pending for trial or judicial enquiry. One of the two doctrines
bars trial of the suit where the matter in issue has already been adjudicated upon in a
previous suit this is res judicata, sub judice bars trial of a suit in which the matter is
pending. Under what circumstances can one raise objection on the basis of res judicata
and sub judice? Once the matter is decided unless there is an appeal you can raise
objection under res judicata but where there is an appeal one can raise sub judice

Difference between res judicata and estoppel

Estoppel is a doctrine of equity which has been accepted for century as a mode of
ensuring justice is done as between parties where the law does not satisfy that
requirement. One may look at res judicata as a branch of the law of estoppel and we
have estoppel by verdict or estoppel by judgment or by verdict and the rule of
constructive res judicata is nothing else but a rule of estoppel.

Judgment in default of defence and appearance

A Judgment is a statement given by a Judge on the grounds of a decree or Order.

Default judgment – Made when either the defence fails to enter appearance to defend
within 14days of service of summons to enter appearance or when the plaintiff fails to
appear for determination of the suit

Assuming the defendant has been served and opted not to defend the plaintiff may
apply for judgment in default of defence. Where either party fails to appear for the
hearing the other party may apply for judgment in default of appearance.

Garnishee Proceedings

Order 23 – where one has a decree, but property of the judgment debtor is not in the
hands of the judgment debtor. These are proceedings instituted by the decree holder
against a third-party holding property of the judgment debtor.

Interpleader proceedings

Arises when a person holding property applies to court to determine between two
adverse parties claiming the property, who should get the property. Application is by
originating summons

Cross examination of witnesses

One is allowed to ask leading questions, question a witness on previous testimony and
it is not restricted in any way. There are 3 aims of cross examination

· To elicit further facts which are favourable to the cross-examining party;

· To test and cast doubt on the evidence given by the witness in chief;
· To impeach the credibility of the witness.

What to do before you institute a suit - Serve the defendant with a demand letter

Content of a demand letter

 Name and address of the advocate, client and recipient

 Facts of the case
 Act/breach committed
 demand
 damages sought
 threat/consequences of not heading to the demand

Elements of defamation

Defamation is a false statement about a person to his discredit which exposes him to
hatred, ridicule and causes him to be shunned or avoided by right thinking members of
society.

Forms: libel – permanent form e.g. written, printed artistic work, picture

Slander – merely spoken, in form of a sign or a gesture

Elements: the statements are false; Defamatory; clearly referred to the plaintiff,
published to a third person

Defences in defamation

 Justification - the statement is true

 Fair comments on a matter of public interest
 Absolute privilege – parliamentary proceedings, judicial proceedings, statements
between advocates and clients and those between husband and wife, state
communication.
 Qualified privilege – reports on parliamentary and judicial proceedings,
statements made in the performance of a duty i.e. statements made to protect an
interest
 Offer of amends - publication of apology and deposit of a sum of money in court
 Consent of the plaintiff to the publication
Difference between set off and counterclaim

Counterclaim happens when the defendant has some claim against the Plaintiff.
Usually the option is that the Defendant will have a choice either to institute a separate
suit or set up their claim in the defence

A set off happens where the plaintiff has a claim of 1000 and the Defendant argues that
the Plaintiff owes him 500/- you settle for a set-off

There are two major distinctions

 A set-off maybe described as a shield which operates only as a defence to the

plaintiff’s claim; whereas
 A counterclaim may be described as being both a shield and a sword. A
Counterclaim is basically a cross-action and is in fact usually treated as a
separate suit even for billing purposes by advocates.

When you draw up a counterclaim and serve the plaintiff, the Plaintiff must draw a
defence to the counterclaim and serve the Defendant. The defence must be specific
and what is not denied is deemed to have been admitted. Whenever you have set-
off the plaintiff has to reply to it.

Is a counterclaim separate document from a defence

A counterclaim is usually treated as a separate suit but in most cases to avoid multiple
suits and reduce costs it forms part of the defence

Trespass

Unlawful interference with one’s body or property without consent.

Trespass to person includes – assault threat to cause grievous harm, battery actual
infliction of harm false imprisonment unlawful restriction of a persons liberty

Trespass to land –

There must be interference

The interference must occur on the possessor’s land or property

The interference must be voluntary/ deliberate/ intentional

 The plaintiff must possess the land

The act that caused the trespass must be direct

Defences In trespass to land – Neccessity, Lawful Authority, Licence

Summary judgment

It may be obtained in 2 separate areas

 Where the relief sought by the Plaintiff is for a debt or a liquidated claim;
 Where the claim is for recovery of land with or without a claim for rent and
profits. It is for very straightforward cases

Interlocutory judgment

The court will give an interlocutory judgment (temporary or in between) if the sum
sought is an unliquidated claim.

Liquidated and unliquidated damages

Liquidated – specific figures are given

Unliquidated – not specific

Mitigating circumstances

If a person is sightseeing on a high building, sees an accident and falls down and dies
whom do u sue – one may sue the owner of the building if the building does not have
preventive measures to ensure the safety of persons

Negligence

This is an act or omission which a reasonable man would not do/omit. Elements to be
proved;

 That the defendant owed the plaintiff a duty of care

  That the duty has been breached by the defendant
 That the plaintiff has suffered damages as a result of the breach

It gives rise to the Neighbour principle – in Donoghue v Stevenson – it was stated that a
person ought to bear in mind the consequences of his actions on his neighbour, and a
neighbour is a person who is closely or directly affected by the results of one’s action.

Rylands v Fletcher – the principle of Strict liability

A person who in the course of an unnatural use of his land accumulates something that
would harm another if it escapes is liable for the damages or injury caused by the
escape of the harmful object.

Defences of nuisance

Nuisance may be public or private. Public nuisance is some unlawful act that endangers
or interferes with the lives, property and comfort of the public e.g. an obstruction of a
road. Private nuisance is the unlawful interference with the enjoyment or another’s use
of land e.g. loud noises, smells, smoke

Defences include:

Statutory authority

Triviality – the act or omission is small

Lawful use of land – the act is lawful

Reasonable act or omission

Prescriptive right – the act had been going on for a period of time without the plaintiff
making a complaint

Ways of commencing a suit

By plaint; notice of motion; originating summons, petition, appeal

What to consider before instituting a suit/Essentials of a Civil Suit

 There must be a court of competent jurisdiction

  There must be parties
 There must be a course of action
 There must be pleadings
 There must be a subject matter
 There must be relief sought and prayed for;
 There must be service of those pleadings; service and summons
 There must be appearance.

Judicial review

At what stage does the suit commence – this is an application to question or seek to
have reversed the decision of a public body based on an illegality. Done in the high
court. Section 8 of cap 26 provide for 3 prerogative orders:

 Certiorari - It is an order for quashing or reversing an action of a public

body/authority. It must be brought within 6 months. Order 53 Rule 2
 Prohibition - Restrains a public body from doing that which is illegal or
infringing on the rights of the applicant. Order 53 Rule 1-leave is mandatory
 Mandamus requires a public body to do a duty imposed on it by law. Apply only
after requiring the public body to act and it has failed.

An ex-parte application for leave by way of chamber summons, accompanied by a

statement setting out the remedies sought and the grounds on which they are sought
and a verifying Affidavit. Leave may be granted free or with terms e.g. Costs, giving
security. Application be made by way of notice of motion within 21 days after leave has
been granted. R. 3(1)

Notice must be served upon every person who may be directly affected by the order.
Rule 3(2)

An affidavit of service indicating the date, place and time of service, and who was
served must be filed before the notice is set down for hearing. Rule 3(3). R. 4(1) Copies
of the statement accompanying the application for leave is to be served with the notice.
Fix the hearing date 8 days after service of the motion. Hearing is restricted only to the
grounds and reliefs set out in the statement accompanying the application for leave.

How do you enter appearance

Once you receive the summons, a party must enter appearance by filing a
Memorandum of Appearance and you can enter appearance yourself or your advocate
can enter appearance on your behalf. There is a standard document for this. If a person
does not enter appearance, judgment can be entered in default of appearance.

Where the defendant is nowhere to be found how do you effect service

The court may on application order the summons to be served by affixing a copy
thereof in some conspicuous place in the court-house, and also upon some conspicuous
part of the house, if any, in which the defendant is known to have last resided or carried
on business or personally worked for gain, or in such other manner as the court thinks
fit.

A person out of the country

In such a case you can serve them outside jurisdiction only after the court grants you
permission to do so. You will apply to the court for leave to serve outside the
jurisdiction of the court. Application is by way of Chamber Summons supported by an
Affidavit. Normally you will tell the court the mode of service that you want to use.

How do you serve a foreigner?

Service can also be ordered by the High Court anywhere in the commonwealth. You
can serve a foreigner within Kenya provided the course of action against them arose in
Kenya and if the foreigners are lawfully in Kenya and on their own volition.

Where the defendant is a public officer or an officer of a local authority, the court may,
if it appears to it that the summons may be most conveniently so served, send it for
service on the defendant to the head of the office in which he is employed, together with
a copy to be retained by the defendant.

Where the defendant is a soldier (but not an officer), the court shall send the summons
for service to his commanding officer, together with a copy to be retained by the
defendant.
Service on the government

The Attorney General being the government legal adviser is mandated to receive all
legal service where the government is a party; you can serve the AG personally or
deliver the summons to the offices that he occupies in his legal capacity. You can also
serve an agent of the Attorney General. In normal practice the Attorney General has
mandated personnel who can receive services on his behalf. You can also serve the AG
by registered mail and the time within which delivery should be effected should be
same as that or ordinary post.

Service on a corporate or company.

The accepted practice is to serve the company secretary, a director or any principal
officer of the company. When serving the principal officer, one must take full
particulars of the officers and indicate it in the affidavit. If you cannot find any of these
persons, then you can effect a service by way of a registered post to the last known
available address of the corporation you can look this up in the company registry.

How to effect service to a person in jail/in police custody

The summons shall be served on him personally in the presence of the officer in charge
of the prison or serve the officer in charge of the prison and if in a police station you
serve the OCS and normally you would have to explain to them who the person is after
confirming that they are in their custody. Whoever receives the document has to sign at
the back of the copy. You need an extra copy to leave to the officer in charge and one to
give to the defendant. You must ensure that your service is acknowledged and always
make a return of service.

When does the defendant have a right to begin

● Where the defendant admits the facts alleged by the plaintiff but raises an
objection on a point of law, the defendant will be entitled to make his
submissions on the point of law. E.g. an objection on limitation of cause of action
being time barred by the Limitation of Actions Act or matter is res judicata or
 subjudice. Practice is that the objection should be raised at pleadings. Although
nothing prevents one from raising it at the time of trial.

● Where the defendant admits the fact alleged by the plaintiff but states that the
plaintiff is not entitled to begin e.g. suit for recovery of an alleged debt and in
this case the defendant admits the facts, that in fact he did receive the money
from the plaintiff but that the money was not a debt but rather a gift and is
therefore not liable to repay the money. In this case the defendant shall have the
right to begin in order to make submissions in order to show circumstances why
the money should not be paid.

Third party proceedings

These are proceedings instituted to include a party(s) to a proceeding as defendants.

The rationale for 3rd party procedure is to prevent a multiplicity of actions. The 3rd
party is brought to avoid multiplicity and to avoid the same facts being tried with
different results. In 3rd party proceedings one can claim indemnity or contribution.
Indemnity is where a party is alleging that they are entitled to reimbursement. This
could arise from court or contract. For example, under the Law of Insurance the
insurance is bound to indemnify the insured if liability is proved. Indemnity can also
arise from a tort. Contribution is partial indemnity; simple one is saying that they are
supposed to pay but somebody else is also responsible and should pay a portion of the
liability.

Instances when you can settle a suit out of court

● Plaintiff may discontinue suit;

● Plaintiff may withdraw part of his claim.

● Defendant may submit to judgment.

● Defendant may make payment into court in satisfaction of the plaintiff’s

claim.

● Defendant may compromise with plaintiff on certain terms.

What is a judgment?
A Judgment is a statement given by a Judge on the grounds of a decree or Order. It is a
final decision of the Court to the parties and the World at large by formal
pronouncement or delivery in open court. Order 20 Rule 4 to 5 set out essential
elements of a judgment:

● Contain a concise statement of the facts of the case;

● Contain issues for determination;

● The decisions on each of those points;

● Reasons for each of those decisions.

Striking out of pleadings

Order 51 Rule 13 The court may at any stage of the proceedings order to be struck out
or amended any pleadings in an action or anything in any pleading on the grounds
that:

● It discloses no reasonable cause of action or defence;

● It is scandalous, frivolous and vexatious.

● It may prejudice, embarrass, or delay fair trial.

● It is an abuse of the process of the court.

Joinder of parties – ORDER 1 CPR

Parties who have a right to a relief in the same act or transaction/series of acts or
transactions may be joined as plaintiff. One may join parties liable in the same
transaction/against whom a right to relief exists in the same transaction/series of
transactions

What the court considers in granting an injunction

● That the applicant has a strong prima facie case/ case with probability of success

● That the matter is irreparable through damages

 ● An applicant for interim injunction must have a legal right in the subject matter
which he seeks to prevent by the conduct of the defendant to violate.

● One of the most important principles is the preservation of the property which is
the subject matter of the suit.

● In the application, the court must consider the balance of convenience, the
opposite of the balance of convenience.

● For an interim injunction to be granted, the applicant must show the existence of
a real urgency and not a caricature of it.

● Interim injunction can only be granted in cases of emergency.

● The applicant must not delay in bringing the application.

● There must be a subsisting action and relief to found an application for interim
injunction postulates that the applicant has a right the violation of which seeks to
prevent and in order to do so effectively, to ensure at that stage of proceedings
that the subject matter of the right be maintained in status quo.

● The court must consider the gravity of injury and the fact that the loss is
irreparable.

● The applicant must establish or show that it is virtually or practically impossible

to bring a motion on notice considering the compelling sudden events.

● The applicant must show that the award of damages will not be adequate or
enough to compensate him.

Representative suits

These are suits instituted on behalf of a group of people to protect their rights and
interests. Representative suits are allowed in situations where instead of having a
multitude of plaints in court, you allow one or two to sue but judgment affects all of
them. One must satisfy the court that the parties have a common grievance and
common interest. If that does not appear then the court will introduce leave for
representative action

Test suits- common grievance but different interests

Difference between replying, verifying and supporting affidavit

Replying – gives facts answering to issues raised in the plaint

Verifying – used to accompany pleadings drafted during the preliminary proceedings

(plaint, defence and petitions) to verify statements made therein.

Supporting - sworn by the advocate to support the correctness of pleadings made

during the occurrence of the suit in question(chamber summons, notice of motion,
originating summons)

Affidavit of service – filed by process server stating how service was carried out

How is service effected

The rule as to service is that it should be effected personally (Order 5). Where the
defendant cannot be found the server should use all due and reasonable diligent effort
to search for the defendant before he conducts a substituted service i.e. service on the
wife/husband. Before affixing the summons on the defendant’s door, the server must
also use all due reasonable effort to find the defendant or authorized persons and must
state on the affidavit of service full particulars of the premises

Persons authorized by law to effect service

Service will be done by an authorized process server, or by the court itself, which is
rare, or through the advocate’s offices where parties are represented. In practice the
advocates will have a clerk who doubles up as a process server

Elements of defamation

The statements are false and defamatory, and they refer to the plaintiff and have been
published to a third person.

Types of torts

● Negligence

● Trespass

● Nuisance
 ● Defamation

● Strict liability

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

Difference between Judicial Review and Review

• Review:

o 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

o 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

o 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:

o Is an application made to a higher authority to review procedure by which

a decision made by a subordinate authority

o 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

o Governed by Section 80 of the Civil Procedure Act

o 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

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:

 o Constitutes ethnic incitement, vilification of others or incitement to cause
harm; or

o 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)

What do you need to prove for an injunction?

 The test for injunctions comes from Giella Casman v Brown

(i) Prima facie case

(ii) Irreparable damage that cannot be compensated by damages

(iii) 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 injunctions?

 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:

(i) Restoration mandatory injunction  requires the defendant to undo a

wrongful act to restore the status so that the damage does not continue

(ii) 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:

(i) A very strong probability of future infringement;

(ii) Proof that the damage is imminent;

(iii) It will cause substantial or irreparable damage for which an award of

damages will not be an adequate remedy; and

(iv) Damage will be of most serious nature.

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

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:

o Duty of care

o Breach of that duty

o Causation

o Proximity/foreseeability

o Damage as a result

 The test for duty of care are (Caparo Industries v Dickman):

o Harm must be a reasonably foreseeable result of the defendant’s conduct

o A relationship of proximity must exist

 o 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

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)
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

o Assault

o Battery

o False imprisonment

o Conversion

o Infliction of emotional distress

o Fraud/deceit

o Trespass

o 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

o Slip and fall accidents  can happen at the front office

o Car accidents

o Truck accidents

o Motorcycle accidents

o Pedestrian accidents

o Bicycle accidents

o 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 nuisance
  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)

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)

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

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

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

o 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

o File in the Environment and Land Court

o A Constitutional Petition is accompanied by a witness statement, list of

witnesses, list of documents and bundle of documents

 Approach two: Public nuisance suit

o Brought at the Environment and Land Court

o Breach of public rights under the constitution

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:

o 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.

o Land matters  e.g. cases related with agreements for sale, purchase of
immovable property, disputes between chargors and chargees, etc.

o Making an application for a caveat may be by way of an O.S.

o 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 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:

o Illegality;

o Irrationality; or

o 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:

o 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

o 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

o Mandamus  an order by the court requiring an administrative body to

perform an act (e.g. make a decision)
 o Certiorari  an order that quashes a decision that has been made
unlawfully

o 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.

Types of petitions

 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

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)
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

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

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 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:

o There must be interference;

o The interference must occur on the possessor’s land or property;

o The interference must be voluntarily/deliberate/intentional;

o The plaintiff must possess the land; and

o 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 courthouse

 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:

o Plaintiff may discontinue suit

o Plaintiff may withdraw part of his claim

o Defendant may submit to judgement

o Defendant may make payment into court in satisfaction of Plaintiff’s claim

o 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

Various ways to respond to a Plaint.

 Counter-claim

 Join third party for indemnity/contribution

 Set-off

 Objection on point of law

 Denial

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

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:

o 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

o If Wafula is seeking to claim damages for the harm caused to him, he can
institute a claim in negligence

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:

1. The incident was of a type that does not generally happen without negligence

2. It was caused by an instrumentality solely in defendant’s control

3. 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

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

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

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:

o Reliefs in the nature of sale, foreclosure, delivery of possession to the

mortgagee by the mortgagor, redemption, reconveyance, etc.;

o Application for extension of time under the rules of Limitations of Actions

Act;

o Application for land ownership by way of adverse possession;

o Application for reconstruction of a file;

o Fixing of a matter for directions by one of the parties; or

o Where specific legislation provides for the use of an O.S.

When is a Notice of Motion used?

 To make the following applications:

 o For orders for Judgement on Admission;

o For Summary Judgement;

o For Stay of Proceedings;

o For lifting, varying or changing an Injunction;

o For release orders, e.g. Habeas Corpus Order;

o Judicial Review;

o Burial Disputes; and

o 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 A written statement confirmed by oath or

person to declare something to be true affirmation, for use as evidence in court
under conditions and sanctions defined
by statute

Normally used for non-contentious Normally used for contentious matters

matters (i.e. where there is a dispute in court)
 Statutory Declaration is confirmed by a Affidavit is sworn by a Verat
Deponent

Used outside court proceedings Used in court/for court proceedings

Governed by the Oaths and Statutory Governed by the CPR 2010 and the old
Declarations Act Statutory Declarations Act

Applying for a practicing certificate; Used to present evidence in court

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

 Similarities between the two:

o Both documents are duly signed by the authors, which is mandatory

under the applicable statutes

o Both documents must be commissioned by a person who has been given

the authority to administer oaths

o 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 A statement made by a judge in the
the court, or the rule of law regarded by course of his judgement which may not
the court as governing the case 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 Rule of law which is not treated by the
necessary step in reaching the conclusion judge as a necessary step in reaching his
of the court conclusion

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:

o If no cause shown, suit is dismissed

o 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

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

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

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
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:

1. That the defendant brought something onto his land;

2. That the defendant made a “non-natural use” of his land (per Lord
Cairns, LC);

3. The thing was something likely to do mischief if it escaped;

4. 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

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

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;

o Mode of service used;

o Time of actual service;

o Manner in which the service was effected;

o Name and address of the person identifying whomever you are serving

 If is it not a commonwealth country:

o The summons shall be sealed at the High Court and shall be forwarded to
the Minister for Foreign Affairs

o The Ministry of Foreign Affairs shall transmit it through the diplomatic

channel to the government of the country

o 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 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

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:

o The names of Judicial Officers

o The territories comprised in the commonwealth

 o The meaning of English words

o The ordinary course of nature

o The rule of road, land and sea

o The common seal of Kenya

As an Advocate how do you proceed with a matter of a dead person and a minor

 A Minor may sue or be sued. Order 32 a suit by a minor shall be instituted in his
name by the next friend of the minor Where the defendant is a minor, the court,
on being satisfied of the fact of his minority, shall appoint a proper person to be
guardian ad litem of such minor

 A Dead person may sue or be sued. The executors or administrators of a

deceased person, or the trustees may take out as of course, an originating
summons, returnable before a judge sitting in chambers for such relief of the
nature or kind following, as may by the summons be specified, and as
circumstances of the case may require. Order 37

Representative Suits. Order 37

These are suits by or against trustees, executors and Administrators of a deceased’s

estate. In all suits concerning property vested in a trustee, executor or administrator,
where the contention is between the persons beneficially interested in such property
and a third person, the trustee, executor or administrator shall represent the persons so
interested, and it shall not ordinarily be necessary to make them parties to the suit, but
the court may, if it thinks fit, order them or any of them to be made parties.

Where there are several trustees, executors or administrators, they shall all be made
parties to a suit against one or more of them.
Commercial
How do you become a member of a company?

One can become a member when you subscribe to the memorandum of association and
secondly when your name is entered into the register of companies.

Until your name has been entered into the Register of members you are not a member
of the company despite holding shares.

For instance in situations where the shares are transferred when the Register has been
closed for determination of persons eligible to earn dividend, a person who buys a
share at that time will not receive the dividend for the reason that he or she is not a
member of the company.

A company's constitution could allow you to be a member without having shares.

Remedies in a contract include:

 Damages

 Specific Performance

 Rescission

 Repudiation

 Addition

What are contracts of ubberimae fidei?

Uberrimae fidei contracts are contracts of utmost good faith. The word uberrimae fidei
or uberrimae fides is Latin for ‘utmost good faith’. A good example of uberrimae fidei
contracts are insurance contracts. At the foundation of these contracts are utmost good
faith between the insured and the insurer.

What vitiates a contract?

Vitiating elements of a contract are those factors which make a contract void or
voidable. They include:

• Mistake

• Duress

• Misrepresentation
 • Undue influence

• Illegality.

Corporate bankruptcy – arises where

Conversion of a business to company

This transaction requires that a Notice of Cessation (Form BN/6) be prepared by
the advocates and presented at the Registrar of Companies. This document
notifies the Registrar that the owners of a particular business wish to stop using a
particular business name. It will be presented together with the Original
Certificate of Registration of the Partnership. Once the Notice of Cessation has
been approved at the Registrar of Companies, the advocates should reserve the
name that the clients wish to use for the company they intend to incorporate.
This is done through a letter to the Registrar requesting him/her to conduct a
search confirming that no company by that name exists, and if so, to reserve the
name

Essentials of a contract
i. Offer and acceptance
ii. Intention to create legal relations
iii. Consideration
iv. Parties have capacity to contract
v. Parties must consent to contract freely n without fraud or force
vi. Objective of the contract must be legal

Racial discrimination in a company n how do u deal with it as an advocate

Grounds for Winding up by court

a) Special resolution by the co. that it should be wound up by the court.
b) The co doesn’t deliver the statutory report to the registrar or defaults to hold
the statutory meeting.
c) Inability of the company to pay its debts.
d) The co. hasn’t commenced business within a year of its incorporation or has
suspended its business for a year
e) The no. of members of the co. has reduced (private co. below two, public
co. below seven
f) Court considers that its just and equitable to wind up the company
 g) A co. incorporated outside Kenya but carrying out business in Kenya has
liquidation proceedings commenced over it in the country it was
incorporated.

IPOs, prospectus expert opinion which companies carry them out

Initial Public Offer - This is the first issue of shares of the company to the public
after its inception. With respect to initial public offers the prospectus should
include:
i. An accountant’s report confirming compliance by the company with
financial disclosures under rule 10 (1)
ii. Legal opinion regarding:
iii. Licences and consents for the particular business.
iv. Validity of evidence of ownership of land, plant equipment and other
assets
v. Any contracts with respect to proposed issue of securities.
vi. Any material litigation

PROSPECTUS
It invites the public to subscribe to shares or debentures. It is a document which sets
out the advantages that accrue from the investment in the company. It may be
issued by the Company, or a promoter of the company. Could be a direct invitation
to the public or offer of sale by an issuing house. It could also be to invite existing
share holders to take more shares i.e. rights issue. Only public companies invite the
public to subscribe for shares or debentures
The company law seeks to compel companies to provide the necessary info in the
prospectus to enable investors make a decision one way or another to subscribe for
shares or debenture
In particular full compliance and disclosure:
 Who are the directors and what benefits do they get?
 What profits are being made by the promoters?
 What is the amount of capital required to be subscribed, amount received
in cash, and the precise nature of the consideration given for the
remaining capital
 Past company financial records
 Contractual obligation of the co. including commissions it will pay and
preliminary expenses
 State the voting and dividends rights of each class of shares
 EXPERTS OPINION
Prospectus provides a statement by an expert regarding the co or intended raise of
capital or the intended investment by the co. (with his consent and the prospectus
must state so).
Experts include engineer, valuer, accountant or other person whose profession gives
authority to his statement

What vitiates a contract

 Misrepresentation Concerned with the principle of
 Duress or undue representation consent
 Mistake
 Illegality Concerned with public welfare

Can a contract be between an insane person

The general rule is that an insane person does not have the capacity to enter into
a contract and the contract may be voidable. However, liability of the insane
person exists in case of contracts involving necessaries i.e items considered to be
suitable for the insane’s standard of living

Remedy of accounting in company law

Who are the agents in a company – any person authorized to negotiate on behalf of the
company e.g. a manager, a director in certain cases like where the shareholders
authorize them to negotiate a purchase on behalf of the members

Types of company meetings and who convenes meetings of a company

Statutory meeting – by directors – to consider the statutory report
Annual general meeting – directors, in default by the registrar
Extra ordinary meeting – directors, directors with the requisition of the
members, members requisition, by court,

What is the committee of revenue allocation

Explain the winding up of a company by a court order

Commences when a petition is presented in court based on any of these
grounds Section 218 C.A
Duties of a company director

1. Statutory duties
 S. 191 - Prohibition of loans to directors.
 S. 192 – Approval of company in a GM requisite for payment by it
to director for loss of office (also see s 193).
 S. 194 – Duty of director to disclose payment for loss of office etc
made in connection with transfer of shares in a company.
 S. 196 – Register of directors’ shareholdings etc.
 S. 197 – Particulars in accounts of directors’ salaries, pensions etc.
 S. 198 – Particulars in accounts of loans to officers etc.
 S. 199 – General duty to make disclosures for purposes of ss 196,
197 & 198.
 S. 200 – Disclosure by directors of interests in contracts to BOD.
 S. 201 – Register of directors and Secretaries.
 S. 202 –Particulars with respect to directors in trade catalogues and
circulars.

Duties of care and skill

 Exercise a reasonable degree of skill expected from a person with his
expertise
 Not bound to give continuous attention to the affairs of the company
 May delegate some of his responsibilities to officials or employees of the
co.

Fiduciary duties of loyalty and good faith

 Directors should not exceed their powers: They may not act illegally,
dishonestly, ultra vires the company or beyond their own powers.
 Directors must act with an unfettered discretion:
 Directors should not allow their personal interests to interfere with their
duties to the company
 A contract between a company and a director or with a company where
director has interests is voidable at the instance of the company
 A Director is accountable to the company for any secret profit made by
virtue of his fiduciary position.
 A director may not compete with the company.
  A director may not misuse confidential information.

Ways of dissolving a partnership

Reasons for winding up a company by court

Difference between rescission and repudiation in a contract

Explain the concept of lifting veil of a company

What are controlled transactions

Can children enter into contracts? What’s the legal position

As a general rule minors cannot enter into contracts. However, there are circumstances
where a minor can enter into a valid contract; a minor can contract for necessaries
(section 4 of the sale of goods Act defines necessaries as goods suitable to the condition
in life of a person. The court has to determine what is appropriate for a particular
minor’s condition in life (Nash v Inman)

A minor can also enter into contracts for the minor’s benefit for example contracts of
service apprenticeship and education.

Difference between merger and acquisition

What are debentures

Debentures are typically loans that are repayable on a fixed date, but some debentures
are irredeemable securities (these are sometimes called perpetual bonds), which means
that they do not have a fixed date of expected return of the funds.

Debentures are therefore medium to long-term debt formats used by large companies to
borrow money.

Types of Partnerships in Kenya

General Partnership as enshrined in the Partnerships Act, 2012.

Limited Liability Partnership created by the Limited Liability Partnerships Act.

Difference between Limited partnership and LLP

LLPs have perpetual succession.

The liability of the LLP is limited to the partner’s investment

LLP has a simplified and expeditious management and governance system

LLPs are tax transparent structures.

LLPs don’t have partners involved in management.

Capital can be withdrawn from LLPs

The number of partners is not limited to 20 in LLPs.

How do you register a society that is not a corporate society

Which are the ways for pretrial disposal of suits

Instances provided for law for using ADR

Difference between procedural and substantive law

Advantages of llps

How to register a company via e- citizen

Contents of a l.l.p deed

What is dematerialization of shares

What is dollarization of currency

Materialization of shares

Calls in Company Law

Difference between a llp and general partnership

Insolvency- how can creditors claim from the debtor

Difference btwn an LLP and an ordinary Partnership.

What is derivative action?

Derivative action refers to a lawsuit brought by a shareholder of a corporation on its

behalf to enforce or defend a legal right or claim which the corporation (directors,
management, and/or other shareholders) has failed to do.

A shareholder derivative suit is a lawsuit brought by a shareholder on behalf of

a corporation. Generally, a shareholder can only sue on behalf of a corporation when
the corporation has a valid cause of action but has refused to use it. This often happens
when the defendant in the suit is someone close to the company, like a director or
a corporate officer . If the suit is successful, the proceeds go to the corporation, not to
the shareholder who brought the suit.

Derivative actions were first established by common law in the case of Foss v Harbottle
and claims can now be brought under Part XI of the Companies Act 2015. Section 238
gives the meaning of derivative actions under the Act. An application must be made to
the court under Section 239(1) and the requirements under Section 240 must be met.

The court may refuse permission for the claim under the reasons set out in Section 241

What is a prospectus

A prospectus is a document issued when a company is offering its shares to members of

the public to subscribe. It contains information such as:

• the minimum number of shares to be taken up for the subscription to be

successful

• the selling price of the shares

• the mode of subscription

• the details of the directorship

• advantages that accrue from the investment in a company among others.

The Companies Act Cap 486 provides the prescribed information that should be
contained in a prospectus. That section of the old law is still relevant.
 A prospectus is a document which sets out the advantages that accrue from the
investment in a company. It may be issued by a company or a promoter of a company.

How does one incorporate a company

Process of increasing the nominal share capital of a company

Process of converting a private company to public one

Difference between a contract for service and a contract of service

How do you become a member of a company?

One can become a member when you subscribe to the memorandum of association and
secondly when your name is entered into the register of companies.

Remedies in a contract include:

 Damages
 Specific Performance
 Rescission
 Repudiation
 Addition

What are contracts of ubberimae fidei?

Uberrimae fidei contracts are contracts of utmost good faith. The word uberrimae fidei
or uberrimae fides is Latin for ‘utmost good faith’. A good example of uberrimae fidei
contracts are insurance contracts. At the foundation of these contracts are utmost good
faith between the insured and the insurer.

What are debentures

Debentures are typically loans that are repayable on a fixed date, but some debentures
are irredeemable securities (these are sometimes called perpetual bonds), which means
that they do not have a fixed date of expected return of the funds.

Debentures are therefore medium to long-term debt formats used by large companies to
borrow money.

What vitiates a contract?

Vitiating elements of a contract are those factors which make a contract void or
voidable. They include:

• Mistake
• Duress
• Misrepresentation
• Undue influence
• Illegality.

What are CBAs? How are they enforced

These are agreements that are made after negotiations between the employer/employer
organizations on one hand and employees on the other hand.

Persons involved – employees, employers and the government

It includes terms and conditions involving the employment, as agreed in the bargaining
process

The CBA should be registered with the ministry of labour.

What is the agent- principal relationship

This is the relationship that arises when a person is authorized to act on behalf of
another. The agent may be authorized to enter into a contract, to buy goods e.t.c.

Authority may be:- actual, apparent or usual

Types of agents:- special, general and universal

Role of agents:-

Factor – in possession of goods to be sol on behalf of the principal

Broker – negotiates on behalf of the buyer and seller

Del cerdere – takes extra risks to indemnify the T

Merchantile agent

Commission agents – enters into contract on behalf of P

Distributorship - An agent can be appointed to buy goods and resell them in his own
account

What is discussed in AGMs how often are they conducted

Provided for under section 131 of the Companies Act. They are held once in each year.
Members discuss:- business of declaring a dividend; consideration of the accounts,
balance sheets and the reports of the auditors and directors; election of directors in
place of those retiring and the appointment of and fixing of the remuneration of the
auditors.

Tarquand rule/indoor management rule - persons transacting with a company are

entitled to assume that the internal company rules have been complied with, even if
they have not.

Termination of an agency

Agreement

Death of either agent/principal

Bankruptcy of the principal

Discharge of duties by the agent

Operation of law

When do directors of a co become liable to third parties

When they engage in business which is not an objective of the company

When they act ultra vires

Engaging in illegal contracts

When an agent becomes liable to third parties

Where they act outside their scope of authority

Breach of a condition

Where he signs in his own name without disclosing his capacity as an agent
What are quasi contracts

When do contracts end/terminate

Performance

Frustration

Breach of the contract and one of the parties rescinds it

Merger

Agreement

Duties of secretaries of a company

 Issuing notices of general meetings to the members of the co. with

the boards consent
 Issuing notices of board meetings to the members of the board
 Taking meetings during board and general meetings
 Keeping books and registers
 Countersigning documents to which the company seal has been
affixed
 Making statutory returns of the company

Documents essential before trading (for a public co.)

Prospectus, consents, financial records of the company, contracts

Functions of official receiver in winding up

They are in possession and control of the assets of the company

Issues a report on the capital, assets and liabilities of the company, the failure to pay
and the reasons for failure to pay. Where there cases of fraud, he makes a report of it.

How to be and stop being a member of a company

Becoming a member of a company

 Agreement – allotment, Transmission, Transfer of shares, Compliance

  Estoppel

Termination of membership

Death; Bankruptcy; Redemption of preference shares; Liquidation of the company;

Forfeiture; transfer of all shares; surrender of shares; sale of shares held through the
company’s lien; repudiation of an infant

Sale agreement - This is an agreement for sale of property

Parties

Particulars of the sale – subject matter

Conditions and warranties

Completion date

Passing of property

Remedies in case of breach

ADR

Termination

Definitions and Interpretations

Incorporation of LSK Conditions for Sale

Agreement for Sale and interest sold

Special conditions

Capacity

Purchase price and Deposit

Completion documents

Assignment Clause

Default Clause

Non merger Clause

Disclaimer (refusal to accept responsibility)

General (usual)

Intention to be bound

Execution

Remedies in contract

Damages

Specific performance

Repudiating a contract

Rescission

Quantum meruit

Injunction

Why damages

Damages place the plaintiff in the position he would have been had the contract been
performed.

Exclusion clause – what is it and what is needed to make it legal

They limit the rights of the parties to a contract

Whether an oral contract is valid

It is valid if it has fulfilled all the elements of a contract, but it would be difficult to
enforce

What is in a contract completion clause

A clause stating the date and place of completion, together with what is to take place.

How are directors appointed?

Explain the relationship between Directors, Employees and shareholders with a
company

Instituting a debt claim

Summary proceedings

Serve demand letter, plaint

1. Acts of bankruptcy

1. Commencement of bankruptcy proceedings

 The proceedings in bankruptcy are begun by the presentation to the court of a

Bankruptcy Petition. This petition asks the court for a Receiving Order to be
made in respect of a debtor’s property. The petition may be presented either by
the Debtor himself or by a Creditor. If it is presented by a creditor the petition
must be founded or based on an alleged Act of Bankruptcy which has occurred
within 3 months before the presentation of the petition. Indeed the acts of
Bankruptcy are in effect statutory tests of insolvency.

 If it is the debtor himself who presents the petition that in itself constitutes an act
of bankruptcy. Upon hearing the petition the court may dismiss it, if it has no
merit or make a receiving order if it is found to be with merit. This order does
not make the debtor bankrupt all it does is to place his property in safe custody
pending the outcome of the proceedings.

 The first meeting of creditors is then held at which it is determined whether a

composition or scheme of arrangement if one is submitted by the debtor shall be
accepted or whether application shall be made to the court to adjudicate the
debtor bankruptcy. If the court decides to adjudicate the debtor bankrupt it
makes an Adjudication Order and the debtor will then become bankrupt. The
debtors property will then vest in his trustee in bankruptcy who will collect in
the property and distribute it among those creditors who have proved their
debts.
  The bankrupt must also submit himself to a Judicial Public Examination and at
any time after conclusion of this public examination the bankrupt can apply for
his Discharge.

 If the court makes an order of discharge the bankrupt is released from all his
debts with certain exceptions provable in bankruptcy and is freed from
disabilities against some exceptions which were imposed upon him by the
bankruptcy.

 Differentiate between unliquidated and liquidated

Unliquidated damages: Damages that have to be valued after the injury occurs.

Liquidated damages: Clearly defined and don’t have to go into finding grounds

Rescission and repudiation

Rescission – to cancel the whole or part of the contract

Repudiation – occurs where a party fails to honor his obligation to the contract

Bankruptcy & Insolvency

Bankruptcy is the legal status of an individual against whom an adjudication order has
been made by the court primarily because of his inability to meet his financial liabilities.

Insolvency is the inability of a debtor to pay his debts as and when they fall due.
Whether or not a person is insolvent is purely a question of fact thus a person can be
insolvent without being bankrupt but he cannot be bankrupt without being insolvent.
An Adjudication Order in Bankruptcy is a judicial declaration that the debtor is
insolvent and it has the effect of imposing certain disabilities upon him and of divesting
him of his property for the benefit of his creditors.

Piercing the veil of incorporation

There a certain statutory provisions that state when lifting the veils occurs. These
include the following:
Reduction In The Number Of Members; Section 33 of the Companies Act refers to
membership that has fallen below the statutory minimum in a public company. The Act
provides that only those members who remain after the six months during which the
company has fallen below the provided minimum period can be sued. These members
are liable ,if they have knowledge of the fact, in respect of debts contracted after the
expiration of the six months.

Fraudulent Trading; The provision of Section 323 of the Companies Act comes into
operation at this juncture. It provides that if in the course of the winding up of the
company it appears that any business has been carried on with the intent to defraud the
creditors, or for any fraudulent purpose, the courts on the application of the official
receiver, the liquidator or member, may declare that any persons who are knowingly
parties to the fraud shall be personally responsible without any limitation on liability
for all or any of the debts or other liabilities of the company to the extent that the court
might direct the liability. This Section does not define the term fraud nor have the
courts defined it.

However, in Re William C. Leitch Ltd (1932) 2 Ch. 71 Maugham J., defined fraud within
the meaning of S.323 as “if a company continues to carry on business and to incur debts
at a time when there is to the knowledge of the directors no reasonable prospects of the
creditors ever receiving payments of those debts, it is in general a proper inference that
the company is carrying on business with intent to defraud.”

It was held in the above case, that the company was fraudulently trading since the
director knew that at the time when it was carrying on business and purchasing goods
on credit it could not comfortably pay back any of its debts.

Where company is not mentioned in the negotiable instruments: in such an instance, the
drawer of the instrument will be personally liable to the holder of the instrument unless
the amount is paid by the company. In Durham Fancy Goods Ltd v Michael Jackson
(Fancy Goods Ltd) [1968] 2 QB 839; the court held that the director was not personally
liable on the bills of exchange because the error with regards to the name of the
company was caused by director.

Where a company is a ‘sham’; the courts may lift the veil in a scenario where an
individual is prohibited by law to do a certain business but opens a company to do so
on his behalf. This was in the case of Gilford Motors Co v Horne [1933]Ch 935 CA;
Where an individual was restricted by a covenant to trade and he formed a company to
carry own business where if he had done so personally, it would have been breach of
covenant. Court granted injunction to restrict business from carrying on business.

Company acting as Agent of Shareholders; where a company does so, the shareholders
will be liable for its acts.

Residence for Tax Purposes; where it is desired to establish for tax purposes in what
country a company is resident, the court will lift veil and find out where the central
management is and that place determines the residence.

Merger defined

(1) For the purposes of this Part, a merger occurs when one or more undertakings
directly or indirectly acquire or establish direct or indirect control over the whole or
part of the business of another undertaking. (2) A merger contemplated in subsection
(1) may be achieved in any manner, including—

(a) the purchase or lease of shares, acquisition of an interest, or purchase of assets of the
other undertaking in question; (b) the acquisition of a controlling interest in a section of
the business of an undertaking capable of itself being operated independently whether
or not the business in question is carried on by a company; (c) the acquisition of an
undertaking under receivership by another undertaking either situated inside or
outside Kenya; (d) acquiring by whatever means the controlling interest in a foreign
undertaking that has got a controlling interest in a subsidiary in Kenya; (e) in the case of
a conglomerate undertaking, acquiring the controlling interest of another undertaking
or a section of the undertaking being acquired capable of being operated independently;
(f) vertical integration; (g) exchange of shares between or among undertakings which
result in substantial change in ownership structure through whatever strategy or means
adopted by the concerned undertakings; or (h) amalgamation, takeover or any other
combination with the other undertaking.

Ways of raising capital for a company.

Ways of raising capital by debt.

Types of partnerships and their differences

How to institute bankruptcy

Difference between a company and an LLP

Define franchise

Liability in franchise

Define and differentiate bankruptcy and insolvency

When can an agent be held liable even after having the necessary authority from a
principal?

How do you Incorporate a company

How to register a company online.

Who are promoters and their responsibility

Are they required to be remunerated?

What happens if a promoters offers their premises to the company as a place of

business?

If a company becomes insolvent and they are unable to complete payment for a piece of
property. Recourse for vendor.

How to register a company via e- citizen

Advantages of llps

What is dematerialization of shares

What is dollarization of currency

What changes did the new Companies Act come with?

Name 3 clauses in an employment contract

How do you register a society that is not a corporate society

A society seeking registration services is required to apply to the Registrar of Societies

for registration or exemption in the manner prescribed by the Act Cap 108 within
twenty-eight days after the formation of the society.

When the Registrar receives an application in the prescribed manner for registration of
a society, the Registrar shall be subject to the provisions of the Act Cap 108, register the
society by entering in the register of societies and issuing a certificate of registration in
the prescribed form.
Contents of an LLP deed

● Partners,

● location of business,

● capital injection,

● profit sharing ratio,

● managing partner

What is dematerialization of shares

Movement of share certificate from being issued physically to being issued

electronically.

● It is safer as the certificates cannot be lost or stolen

● It is faster as one is able to sell their shares and buy new ones

● It’s easier to buy and sell shares now

What is dollarization of a currency

It is the official adoption of the US dollar by a country as their official legal tender Eg:
Zimbabwe

Calls in Company Law-

Called up share capital is shares issued to investors under the understanding that the
shares will be paid for at a later date or in installments. ... Once a shareholder has paid
the issuing entity the full amount owed for issued shares, these shares are considered to
be called up, issued, and fully paid. P

What is the distinctive feature of a company?

1. Separate legal personality, as stated in the case of Salomon v Salomon- a man

had a business, and he issues debentures to the company and he claimed he was
a secured creditor and he should be paid.

2. Can sue or be sued

3. Separation of ownership and management

Distinguish Company from LLPs

1. Definition voluntary association of a number of parties for common purpose

while an LLP is about making profit

2. Members(private Company one member, LLP min 2 partners)

3. Incorporation,

4. Taxation (Companies pay corporate tax, LLps partners pay income taxes)

Memorandum of association

A memorandum of association is a memorandum stating that the subscribers — (a)

wish to form a company under this Act; and (b) agree to become members of the
company and, in the case of a company that is to have a share capital, to take at least
one share each. (2) A company may not be registered unless its memorandum of
association is — (a) in the form prescribed by the regulations; and (b) authenticated by
each subscriber.

Duties of directors

1. Duty to act within their powers

2. Duty to diligence and skill

3. Duty to promote the business of the company

4. Duty to avoid conflict of interest

Who are promoters and their responsibility

One who undertakes to form a co & takes the necessary steps to accomplish that
purpose

Responsibility

a. Prepares the documentation

 b. Register a company

c. Meet company preliminary expenses

d. Finding directors & shareholders

Duties

a. Act in good faith

b. Proper accounting

c. Disclosure

Are they required to be remunerated?

Yes but , because there no contract cause the company has no legal existence or capacity
to contract

What happens if a promoter offers their premises to the company as a place of

business?

If there was a pre-incorporation contract, then the promoter can claim the property back
after incorporation if the company adopts the contract.

What does time of the essence mean?

Failure to act within the time required constitutes a breach of the contract.

If 'time is of essence' hasn't been stipulated in the conveyance agreement, what is the
procedure for claiming debt due if acting for purchaser?

Time is of the essence is a phrase used in contracts to mean the specified dates and time
are vital and mandatory. Failure to act within the stipulated time constitutes breach of
contract.

It means that if a party doesn't do what they ought to do by the due date as provided in
the contract, then the other party is entitled to terminate the contract (they have rights
against the defaulting party) as failure to complete in due time is deemed a
fundamental breach of contract.

The party at fault doesn't enforce the contract specifically but the other party is free to
pursue their remedies for breach of contract which include specific performance.
The aggrieved party is even at liberty to rescind the contract.

However time in this case is only regarded if parties expressly provide for it as a term in
the contracts

If a company becomes insolvent and they are unable to complete payment for a piece of
property. Recourse for vendor.

Make it known that you are a creditor to the insolvent company, exercise the power of
seller with possession and re-sale the land

Ways in which a de-registered public company from NSE can changed to a private Co.

Section 77

a. A special resolution to convert has been made

b. An application for the registration has been lodged with registrar

c. Registrar will not register unless application contains:

1. Statement of company’s new name

2. Copy of resolution

3. Copy of new articles

d. Registrar shall them issue a certificate of incorporation

Conditions and warranties in sale of goods

Condition- stipulations that are essential to the main purpose of the contract

They can be implied or express conditions

a. Condition as to title

b. Condition as to description

c. Condition as to quality or fitness

d. Condition as to merchantability

Warranties- A stipulation that si collateral to the main purpose of the contract

A condition becomes a warranty when --

a) the buyer waives the conditions or opts to treat the breach of the condition as a
breach of warranty ; or

b) The buyer accepts the goods or a part thereof, or is not in a position to reject the
goods.

They include;

1.Implied Warranty of Quiet Possession --

Implied Warranty of Freedom from 2.Encumbrances --.

Reasons why members may want voluntary liquidation of a company.

The aim on the company has ended

What application you make if the members of a company tell you that they want to
protect themselves from creditors…

Court order for administration plus Moratorium Application

Applications for insolvency cannot be raised by creditors

Types of partnerships and liabilities.

General partnership- unlimited liability

Limited liability partnership- limited liability

Limited partnership- limited partners + unlimited partner (general partner)

Parts of an employment contract.

Remuneration

Benefits

Period/Duration
Leave

Sick off

Termination

Job description

What is franchising.

Advantages of franchising

How do you make an application for garnishee proceedings.

A judgment creditor has the option of attaching debts that are owed to the judgment
debtor, which include sums that are held in a bank account, through garnishee
proceedings. The judgment creditor will be required to apply to the court, identify the
debt that is sought to be attached in the application, and serve the application on the
person who owes the judgment debtor. Should that person confirm that he or she holds
monies owed to the judgment debtor, the court will order that such sums be paid to the
judgment creditor.

(Order 23)

Notice of motion, application for garnishee order nisi to be issued to the garnishee.

Money they are holding to be attached for the decree

Appear to show why the order nisi should not be made absolute

7days before nisis, show cause, nisi is made absolute

Attached to answer the decree

Clauses in a contract

A contract is a legally binding agreement between 2 parties. A clause is a specific

provision in a contract that address the aspect of the contract i.e. they clearly define
each parties duties, rights and privileges. Types include:

 Statute of limitation clause

 Time of performance clause
  Arbitration clause
 Force majeure clause
 Indemnification clause
 Advocate fees clause
 Consideration clause

What is the distinction between limited liability partnership and a company

What is the turquand rule

Also known as the indoor management rule. It is a doctrine that implies that persons
who are dealing with a company once they have satisfied themselves that the
transaction is not inconsistent with the articles and memorandum of association are not
expected to inquire into the regularity of internal procedures of the company to enforce
the contract.

It was established by Lord Hatherlyin in the case of Royal Bank v Turquand. In this
case, the company had received a loan of £2000 and subsequently issued a bond; signed
by two directors, under its common seal agreeing to repay the loan. The articles of the
company had stipulated that the directors may borrow on bond such sums as long as it
is passed by a general resolution of the members of the company, a requirement that
hadn’t been fulfilled in this situation.

Nonetheless, the Court of Exchequer held that the bond was binding on the company
because the lenders were entitled to presume that a resolution had indeed been passed
thus no need for enquiries as to the internal procedures.

What is the nemo dat principle

Principle loosely translating to no one can give what they don't have.

Found in section 23(1) sale of goods Act cap 31 which states that a person other than the
owner who sells goods without consent or authority of the owner passes no better title
than he himself possesses.

Exceptions

1.Estoppel

2.sale by an agent
3.sale under special powers of sale i.e statutory power of sale

4.sale in a market overt

5.sale under voidable title

6.resale by seller in possession

7.resale by buyer in possession

8.sale after delivery of writs of execution

Provided the buyer acquires them in good faith and without notice of the defect of
seller's title

How do you become a member of a company

Section 28 (1) and (2) of the company’s act states that one can become a member of a
company as follows :

(1) Subscribers to the memorandum of a company shall be deemed to have agreed to

become members of the company and upon registration of the company , their names
shall be entered into its register of members.

(2) Agreeing to becoming a member of a company and having your name registered in
its register of members

Remedies in a contract

1. Common law/ legal remedies

 Damages
 Repudiation
 Quantum meruit

2.Equitable remedies

 Specific performance

Injunction (Giella v Cassman brown case, Temporary injunction)

1. Prima facie case with a high possibility of success

 2. Applicants will suffer irreparable injury which would not be adequately
compensated by an award of damages if the order is not granted.

3. Balance of convenience in favor of granting or declining the injunction

4. Judicial discretion

Rescission

Damages (pecuniary damages)

Minor forms of equitable relief- Restitution, rectification

What are shares?

A share is an indivisible unit of capital, expressing the ownership relationship between

the company and the shareholder. Share is a unit of ownership, entitled claim of profit
and loss in a company.

Means Interest;

a. Conferring aright to share in the profit or liability to contribute to the losses, of

the undertaking; or

b. giving rise to an obligation to contribute to the debts or expenses of the

undertaking in the event of a liquidation

Types of shares?

1. Ordinary shares

Most companies only have one kind of shares, called ordinary shares. Ordinary shares
represent the company’s basic voting rights and reflect the equity ownership of a
company. Ordinary shares typically carry one vote per share and each share gives equal
right to dividends. These shares also give right to the distribution of the company’s
assets in the event of winding-up or sale.

The rights attached to ordinary shares are generally defined in the Articles of
association of the company and/or in the shareholders agreement.

2. Deferred Shares
Deferred shares carry fewer rights than ordinary shares and can include:

shares in which dividends are only paid after all other classes of shares have been paid

shares in which dividends are only paid after a certain date or event

shares that are not tradable until a certain date - such shares are usually issued to
employees in order to give them a long term interest in the company and to increase
their loyalty, or

shares which, in the event of insolvency, do not give their holders any rights until all
other shareholders are paid.

3. Non-voting shares

Non-voting shares do not give the holder any voting rights in the company. This means
that the holder is entitled to a portion of the company’s capital, but is not able to take
part in its general meetings.

Non-voting shares are mostly issued to employees or to family members of the main
shareholders. This class of shares allows the main shareholders to retain control of the
company whilst multiplying the number of shareholders.

4. Redeemable shares

Redeemable shares are shares that can be bought back by the company at some point in
the future. The redemption date can either be fixed in advance (eg 3 years from the date
the share is issued) or decided at the company's discretion. The redemption price is
usually the same as the issue price, but not necessarily.

Shares given to employees are often redeemable, so that the company can get its shares
back if the employee leaves. However, the ability to redeem shares is limited and is
subject to specific statutory requirements. For instance, the company may only redeem
the shares out of accumulated profits or the proceeds of a new issue of shares.

Preference shares give their holder a preferential right to a fixed amount of dividend,
meaning that they will receive dividends ahead of ordinary shareholders. Preferred
shareholders also have a higher priority claim to the company’s assets in case of
insolvency.

Because this class of shares carries many benefits and guarantees, it is mostly issued to
investors, for example to venture capitalists, who invest in startups. However, preferred
shareholders do not have the same ownership rights in the company as ordinary
shareholders; they are often non-voting and sometimes redeemable. Redeemable
preference shares are a common way of financing a business. They allow a company to
repurchase its shares in the future (eg if interest rates fall and the company wants to
issue new shares with a lower dividend rate), while giving investors the possibility to
get their money back at a pre-agreed price.

Management shares.

Management shares give their holders extra voting rights at the company’s general
meetings (eg two votes for one share). Such shares are often used to enable company
directors to retain control of the company in the event of shares being issued to outside
investors

Ways a company can raise capital.

1. Increasing share capital

2. Debt capital

3. Retaining of earning

4. Bottom line (sell all goods and services for profit to reinvest)

Difference between bond and debenture

Bonds are debt security secured by a specific physical asset(s)while a debenture is an

unsecured debt security issued by a company based on the credit rating of the
company.

Fixed charge and floating charges, what are they & which takes precedence
Fixed Charge - A legal or specific charge security that is charged on a particular asset of
a company

Floating Charge - A charge that is attached to assets which may be sold, traded and
disposed of in the course of business operations e.g. stocks

Preference - During liquidation the floating charge takes preference over the fixed
charge

Define franchise

Franchising is a business model that allows one business to operate under the
established brand of another business and to sell its products and/or services for a
specified time period.

Franchising is a contract or an arrangement where an organisation, the franchisor,

allows another organisation, the franchisee, to use its trademark and business concept,
to transact its products and/or services for a certain period of time and under certain
guidelines and in exchange, the franchisee gives a token to the franchisor.

The limitations: franchise is not flexible in nature - its hard to make changes to the
business

The franchisee does not enjoy the profits alone as they have to share the profits with
Franchisor

Elements:

1. Substantially same brand

2. Franchisor provides assistant on how to use the brand

3. Franchisee is an independent contractor

4. Pay fee

5. Not regulated in Kenyan Law

Liability in franchise
The franchisor is liable for the franchisee actions if the franchisee is an agent of the
franchisor. (owner of the franchise). However the liability only extends to actions within
the scope of the agreement.

Define and differentiate bankruptcy and insolvency

Insolvency- when a legal entity or person can no longer meet their debt obligations on
time as they fall due.

A company that has not paid a creditor to the tune of ksh 100,000 after a written
demand within 21 days after receipt of that demand is considered insolvent

Bankruptcy- the legal status of an individual against whom an adjudication order has
been made by the court.

When can an agent be held liable even after having the necessary authority from a
principal?

An agent can be held liable when their actions amount to a criminal offence regardless
of whether or not they had authority from the principal. In the event acted under the
authority of the principal, then the principal is also liable.

Absolute authority

Ostensible authority

How do you incorporate a company?

Section 11of the companies Act. persons who wish to form a company may subscribe
their names to a memorandum of association and comply with the requirements of
section 13 to 16 with respect to registration.

They will be required to comply with the following;

Propose a Company name for name search and reservation (Form CR14) – The name
should be unique and not similar to any existing company name. They should pick at
least 3 names to increase chances of approval.

Include objectives of the Company – Business activities the Company will undertake.

Give out the names of all Shareholders in full and the names of all Directors in full (If
Directors are different from shareholders)

Indicate the number of shares to be held by each Shareholder.

Give out the physical address of the Company (includes LR No or Plot No, Street or
Road name, Town name and County) – If you don’t have a business premises you can
use your home address then make changes later once you secure business premises

P.o Box, Email address and Telephone number of Shareholders and Directors

Correctly completed Company Registration Form (Form CR1)

Memorandum for the Company – One can be prepared or the model memorandum for
a limited company (Form CR2) can be adopted

Articles of Association – Ones provided for in Company Regulations can be adopted

Statement of Nominal Capital

A copy of National ID and KRA Pin certificate of each Director

Recent coloured passport sized photo of each Director

Notification of each Director’s residential address (Form CR8)

1. Due diligence

2. Name reservation

3. Drafting reg documents required (MOA and AOA)

4. Apply on e-citizen

5. Upload all details of directors and I’d

6. Shareholders

7. Address
 8. Statement of nominal shares

9. Pay fees

10. Approval

How to register a company online.

1. Open an account on the e-citizen portal or use your lawyer's ecitizen account.

2. Apply for a name search which is kshs... Wait for name to be reserved

3. Apply for the registration of a Private Limited Company and submit KRA pin
certificates of each director, a copy of National ID(scanned) or Passport for directors
who are foreigners, and a scanned passport photo of each director,

4. After submitting these, obtain Company Registration forms i.e. form CR1-company
registration form, Form CR2-Memorandum of Association, CR 8-Notice of residential
address of directors and CR 10

5. Ensure these Registration forms are signed by each director and upload them in the e-
citizen platform. Registrar of Companies checks if all requirements have been met and
indicates in case of any errors.

Payment is 10650/=

6. Once registration is approved by the registrar one can download the certificate of
Incorporation and List of directors/form CR12

All these guided by the Companies Act 2015.

Ways in which a de-registered public company from NSE can changed to a private Co.

Make an application with

1. Company news name

2. Special resolution converging public to private

3. Notice on cancellation of shares

4. And a statement of reconstituting of shares

5. Lodge with registar, he will register conversion

 6. Will issue certificate of incorporation

Nature of relationship between directors and company, explain.

Duties of directors

Types of partnerships

General partnerships

Limited partnerships (general or limited)

Limited liability partnerships- separate legal personality but not incorporated.

What happens when a company gives the shareholders additional shares at a subsidy

Ways of raising capital. (Equity, Debt financing, bottom line, withholding returns.)

Private equity funds and hedge funds

Private equity firms raise funds from institutions and wealthy individuals and then
invest that money in buying and selling businesses. After raising a specified amount, a
fund will close to new investors; each fund is liquidated, selling all its businesses,
within a preset time frame, usually no more than ten years.

Description - A hedge fund is an investment fund that trades in relatively liquid assets
and is able to make extensive use of more complex trading, portfolio-construction and
risk management techniques to improve performance, such as short selling, leverage,
and derivatives.

Hedge funds are alternative investments that use pooled money and a variety of tactics
to earn returns for their investors. Private equity funds invest directly in companies, by
either purchasing private firms or buying a controlling interest in publicly traded
companies.
Ways of raising capital by debt

Charging of assets, reputation /credit scores to get debentures, attach security under
movable property under mpsr, Government bonds, fixed of floating charges.

Piercing the corporate veil.

Difference between Limited partnership and LLP

LLPs have perpetual succession.

The liability of the LLP is limited to the partner’s investment

LLP has a simplified and expeditious management and governance system

LLPs are tax transparent structures.

LLPs don’t have partners involved in management.

Capital can be withdrawn from LLPs

The number of partners is not limited to 20 in LLPs.

How does corporate bankruptcy arise?

Conversion of a business to company

This transaction requires that a Notice of Cessation (Form BN/6) be prepared by the
advocates and presented at the Registrar of Companies. This document notifies the
Registrar that the owners of a particular business wish to stop using a particular
business name. It will be presented together with the Original Certificate of Registration
of the Partnership. Once the Notice of Cessation has been approved at the Registrar of
Companies, the advocates should reserve the name that the clients wish to use for the
company they intend to incorporate. This is done through a letter to the Registrar
requesting him/her to conduct a search confirming that no company by that name
exists, and if so, to reserve the name
Essentials of a contract

● Offer and acceptance

● Intention to create legal relations

● Consideration

● Parties have capacity to contract

● Parties must consent to contract freely and without fraud or force

● Objective of the contract must be legal

Racial discrimination in a company n how do u deal with it as an advocate

Grounds for Winding up by court

 Special resolution by the co. that it should be wound up by the court.

 The co doesn’t deliver the statutory report to the registrar or defaults to hold the
statutory meeting.
 Inability of the company to pay its debts.
 The co. hasn’t commenced business within a year of its incorporation or has
suspended its business for a year
 The no. of members of the co. has reduced (private co. below two, public co.
below seven
 Court considers that its just and equitable to wind up the company
 A co. incorporated outside Kenya but carrying out business in Kenya has
liquidation proceedings commenced over it in the country it was incorporated.

IPOs, prospectus expert opinion which companies carry them out

Initial Public Offer - This is the first issue of shares of the company to the public after its
inception. With respect to initial public offers the prospectus should include:

 An accountant’s report confirming compliance by the company with financial

disclosures under rule 10 (1)
 Legal opinion regarding:
 Licences and consents for the particular business.
  Validity of evidence of ownership of land, plant equipment and other assets
 Any contracts with respect to proposed issue of securities.
 Any material litigation

Prospectus

It invites the public to subscribe to shares or debentures. It is a document which sets out
the advantages that accrue from the investment in the company. It may be issued by the
Company, or a promoter of the company.

Could be a direct invitation to the public or offer of sale by an issuing house. It could
also be to invite existing shareholders to take more shares i.e. rights issue. Only public
companies invite the public to subscribe for shares or debentures

The company law seeks to compel companies to provide the necessary info in the
prospectus to enable investors make a decision one way or another to subscribe for
shares or debenture

In particular full compliance and disclosure:

 Who are the directors and what benefits do they get?

 What profits are being made by the promoters?
 What is the amount of capital required to be subscribed, amount received in
cash, and the precise nature of the consideration given for the remaining capital
 Past company financial records
 Contractual obligation of the co. including commissions it will pay and
preliminary expenses
 State the voting and dividends rights of each class of shares

Experts Opinion

Prospectus provides a statement by an expert regarding the co or intended raise of

capital or the intended investment by the co. (with his consent and the prospectus must
state so).

Experts include engineer, valuer, accountant or other person whose profession gives
authority to his statement
Remedy of accounting in company law

Who are the agents in a company – any person authorized to negotiate on behalf of the
company e.g. a manager, a director in certain cases like where the shareholders
authorize them to negotiate a purchase on behalf of the members

Types of company meetings and who convenes meetings of a company

Statutory meeting – by directors – to consider the statutory report

Annual general meeting – directors, in default by the registrar

Extra ordinary meeting – directors, directors with the requisition of the members,
members requisition, by court,

What is the committee of revenue allocation

Explain the winding up of a company by a court order

Commences when a petition is presented in court based on any of these grounds

Section 218 C.A

Duties of a company director

Statutory duties

S. 191 - Prohibition of loans to directors.

S. 192 – Approval of company in a GM requisite for payment by it to director for loss of

office (also see s 193).

S. 194 – Duty of director to disclose payment for loss of office etc made in connection
with transfer of shares in a company.

S. 196 – Register of directors’ shareholdings etc.

S. 197 – Particulars in accounts of directors’ salaries, pensions etc.

S. 198 – Particulars in accounts of loans to officers etc.

S. 199 – General duty to make disclosures for purposes of ss 196, 197 & 198.
S. 200 – Disclosure by directors of interests in contracts to BOD.

S. 201 – Register of directors and Secretaries.

S. 202 –Particulars with respect to directors in trade catalogues and circulars.

Duties of care and skill

Exercise a reasonable degree of skill expected from a person with his expertise

Not bound to give continuous attention to the affairs of the company

May delegate some of his responsibilities to officials or employees of the co.

Fiduciary duties of loyalty and good faith

● Directors should not exceed their powers: They may not act illegally,
dishonestly, ultra vires the company or beyond their own powers.

● Directors must act with an unfettered discretion:

● Directors should not allow their personal interests to interfere with their
duties to the company

● A contract between a company and a director or with a company where

director has interests is voidable at the instance of the company

● A Director is accountable to the company for any secret profit made by

virtue of his fiduciary position.

● A director may not compete with the company.

● A director may not misuse confidential information.

Formation of company

● Conduct a search and reservation of the intended company names

● Filing of the Memorandum of Association and Articles of Association

● Filing of other 3 documents: physical address of the company, amount of

nominal capital, list of names and addresses of the directors and
secretaries, certificate of compliance
 ● Paying Stamp duty

● Commencement of business once the registration certificate is issued. For

a private company it may commence immediately whereas a public
company commences once it has successfully issued a rights issue

Termination of an agency

 Agreement
 Death of either agent/principal
 Bankruptcy of the principal
 Discharge of duties by the agent
 Operation of law

When do directors of a co become liable to third parties

 When they engage in business which is not an objective of the company

 When they act ultra vires
 Engaging in illegal contracts

When an agent becomes liable to third parties

 Where they act outside their scope of authority

 Breach of a condition
 Where he signs in his own name without disclosing his capacity as an agent

When do contracts end/terminate

 Performance
 Frustration
 Breach of the contract and one of the parties rescinds it
 Merger
 Agreement

Duties of secretaries of a company

 ● Issuing notices of general meetings to the members of the co. with
the boards consent

● Issuing notices of board meetings to the members of the board

● Taking minutes during board and general meetings

● Keeping books and registers

● Countersigning documents to which the company seal has been

affixed

● Making statutory returns of the company

Functions of official receiver in winding up

● They are in possession and control of the assets of the company

● Issues a report on the capital, assets and liabilities of the company,
the failure to pay and the reasons for failure to pay. Where there
cases of fraud, he makes a report of it.

Remedies in contract

● Damages
● Specific performance
● Repudiating a contract
● Rescission
● Quantum meruit
● Injunction

Memorandum of association clauses

Name clause, business location and registered office,

Sec13 and 14 of Company Act

Name clause, Business clause, Purpose, Objects (Constitution)

Wish to form a company and that they are to be subscribers and to take shares
Affix signature sec 12

What is a company?

A body with a separate legal personality with ability to sue and be sued, enter into
binding contracts etc.

A company under the company Act 2015 is one that was incorporated under the
Companies Act, a Foreign company and one existing before the new Act.

What is the least no. of directors a private company may have/ public company

 1 director for private

 2 directors for public

Can children enter into contracts...what it the legal position

General rule is that minors cannot enter contracts because they lack capacity. However,
they may be exempted to do so if they are represented by someone who acts as a trustee
for them

Caveat emptor buyer beware

The general rule is that during the negotiations leading to a contract, a party is not
bound to disclose information which might influence the judgment of the other party

Difference between caution and caveat

This is a notice in the form of a register to the effect that no action of a specified nature
in relation to the land in respect of which the notice has been entered may be taken
without first informing the person who gave the notice.

Who can place a caution:

 ● Any person who is claiming a contractual or other right over land amounting to
a defined interest capable of creation by a registrable instrument, for example a
lease, may lodge a caution with the Registrar against any dealing which is
inconsistent with his or her interest. Entry of a transaction, with respect to such
land, may not then be made unless the cautioner has received notice that the
same has to be done.

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 into 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

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:

o Negligence

o Default

o Breach of duty

o Breach of trust

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 would you advise people who are about to enter into a general partnership?
Limit your advice to matters pertaining to risk management.

 General partnership:

(i) Group of 2 or more people coming together for a common purpose to

make profit

(ii) Governed by their private agreement, in default of which, governed by the

Partnerships Act 2012

(iii) Do not have separate legal personality, is unincorporated (*risk*)

(iv) Unlimited liability and so personal assets can be attached (*risk*)  i.e.
liability is personal and unlimited

(v) 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
 (vi) Bay be dissolved by: death, bankruptcy, agreement of partners, court
order (*risk*)

(vii) Partners jointly and severally liable for acts and omissions and wrongful
acts of their fellow partners (*risk*)

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

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

o It is a parent company designed to own and control other businesses

o 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)

o 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:

(i) Façade of sham  Gilford Motor Company v Horne

(ii) Agency  Adams v Cape Industries

(iii) Tort/interests of justice  Chandler v Cape Industries

(iv) Single Economic Unit  DHN v Tower Hamlets/Jones v Lipman

(v) 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 the reforms in Sale of Goods Act with regards to UK consumer protection?

 Conditions under the Sale of Goods Act:

o 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

o Correspond to description   S. 15: where goods are sold by description,

there is an implied condition that the goods will correspond to the
description

o 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

o 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

o 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

o 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

o Goods will be free from defect rendering them unmerchantable

 Warranties under the Sale of Goods Act:

 o Quiet possession   S. 14(b): provision is intended to protect the buyer
against defects of title which arise after the contract is entered into

o 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

o 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

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
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:

o No obligation for private company to have company secretary where paid

up capital does not exceed 5 million

o Private companies are allowed to have 1 Director and public companies

must have 2

o Minimum age of Director is now 18 years with no maximum age

o Company’s objects no longer restrict its capacity

o 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
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:

o Financial reasons, e.g. raising share capital

o To reduce debt capital

o To respond to demographic, technological, etc. changes

o To respond to new market needs, e.g. capturing additional or new market

share

o To respond to CSR needs

 Documents needed:

o Board resolution, passed at either an AGM or other general meeting

o 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

o 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)
 o 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

o Share buy-back schemes were only introduced by the Companies Act 2015

o However, this ability to buy-back shares was suspended by the CMA in

January 2019

 Irredeemable shares: shares that a company cannot buy back

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) 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.

b) The present Physical and Postal Address of “the Company”. The addresses
are to be for both the Local Office and the Head Office

c) The full Names, Addresses, Nationalities and Occupations of each of the

Directors and the Company Secretary

d) 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 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

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:

o Memorandum and Articles of Association

o Statement of Nominal Capital + Stamp Duty Form

o Notice of situation of registered office

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.

o Where the sub-stratum of the company is dissipated, i.e. object no longer

being fulfilled

o There is a deadlock in management or vision of the company

o Company is used as a vehicle of fraud

o Minority membership of company is oppressed

o 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:

o 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

o 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

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

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:

o 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

o If the Director had actual knowledge (or should have known) of the
actionable wrong and participated in the actionable wrong

o 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

o 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.

o 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

o If the action the Director engaged in was ultra-virus and affected a third
party

o Where there is misstatement of the prospectus

o 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

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

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

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

What is forfeiture?

 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

o 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

o 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

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:

o Properly incorporated in the contract through notice;

 o Legal; and

o 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

What are contracts of ubberimae 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 are online sale remedies?

 If you are dissatisfied with a product that you have bought online, the following
steps may be taken:

o Proof of purchase, e.g. invoice/order number

o The reason for the return has to be valid and the return acceptance
conditions must be met
 o 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

o A duly filled in return form with the product you are returning

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

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

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 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

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.

Procedure for entering into a valid Hire Purchase Agreement.

 Draft a hire purchase agreement in writing

o Executed by all parties

o Contains a cash price at which the goods may be purchased

o Agreement must show: amount of each instalment, period of repayment,

description of goods, notice of hirer’s rights displayed in a prominent
form, etc.

o 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.

o Agreement cannot be enforced against the Hirer/Guarantor if not

registered

o 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

o 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

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

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:

o Misapply company money;

o Retain or misapply company property; or

o 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 

o The drawee is the party that pays the sum specified by the bill of exchange

o The payee is the one who receives that sum

o The drawer is the party that obliges the drawee to pay the payee

o 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:

o The plaintiff must show that it has a very strong prima facie case;

o The plaintiff must show that the actual or potential damage to it is very
serious; and

o 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:

o 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

o 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

o 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

o 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

o 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

o Service of the order is to be affected by a solicitor and not merely a

representative and/or agent of the plaintiff

o 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
 o 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

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

o 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

o 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

o 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

o 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?

What happens to a contract in the event of war?

 Frustration of contract in the following possible ways:

o The sub-stratum of the contract is completely destroyed

o 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

Bankruptcy & Insolvency

Bankruptcy is the legal status of an individual against whom an adjudication order has
been made by the court primarily because of his inability to meet his financial liabilities.

Insolvency is the inability of a debtor to pay his debts as and when they fall due.
Whether or not a person is insolvent is purely a question of fact thus a person can be
insolvent without being bankrupt, but he cannot be bankrupt without being insolvent.
An Adjudication Order in Bankruptcy is a judicial declaration that the debtor is
insolvent, and it has the effect of imposing certain disabilities upon him and of
divesting him of his property for the benefit of his creditors.

Piercing the veil of incorporation

There are certain statutory provisions that state when lifting the veils occurs. These
include the following:

Reduction In the Number Of Members; Section 33 of the Companies Act refers to

membership that has fallen below the statutory minimum in a public company. The Act
provides that only those members who remain after the six months during which the
company has fallen below the provided minimum period can be sued. These members
are liable, if they have knowledge of the fact, in respect of debts contracted after the
expiration of the six months.
Fraudulent Trading; The provision of Section 323 of the Companies Act comes into
operation at this juncture. It provides that if in the course of the winding up of the
company it appears that any business has been carried on with the intent to defraud the
creditors, or for any fraudulent purpose, the courts on the application of the official
receiver, the liquidator or member, may declare that any persons who are knowingly
parties to the fraud shall be personally responsible without any limitation on liability
for all or any of the debts or other liabilities of the company to the extent that the court
might direct the liability. This Section does not define the term fraud nor have the
courts defined it.

However, in Re William C. Leitch Ltd (1932) 2 Ch. 71 Maugham J., defined fraud within
the meaning of S.323 as “if a company continues to carry on business and to incur debts
at a time when there is to the knowledge of the directors no reasonable prospects of the
creditors ever receiving payments of those debts, it is in general a proper inference that
the company is carrying on business with intent to defraud.”

It was held in the above case, that the company was fraudulently trading since the
director knew that at the time when it was carrying on business and purchasing goods
on credit it could not comfortably pay back any of its debts.

Where company is not mentioned in the negotiable instruments: in such an instance, the
drawer of the instrument will be personally liable to the holder of the instrument unless
the amount is paid by the company. In Durham Fancy Goods Ltd v Michael Jackson
(Fancy Goods Ltd) [1968] 2 QB 839; the court held that the director was not personally
liable on the bills of exchange because the error with regards to the name of the
company was caused by director.

Where a company is a ‘sham’; the courts may lift the veil in a scenario where an
individual is prohibited by law to do a certain business but opens a company to do so
on his behalf. This was in the case of Gilford Motors Co v Horne [1933]Ch 935 CA;
Where an individual was restricted by a covenant to trade and he formed a company to
carry own business where if he had done so personally, it would have been breach of
covenant. Court granted injunction to restrict business from carrying on business.

Company acting as Agent of Shareholders; where a company does so, the shareholders
will be liable for its acts.

Residence for Tax Purposes; where it is desired to establish for tax purposes in what
country a company is resident, the court will lift veil and find out where the central
management is and that place determines the residence.
Conveyancing
Name 5 different registries that searches are conducted in under conveyancing

• Companies registry

• Survey departments

• County government

• Land registry

• Probate Registry

Difference between a sublease and sectional property

Constitutionality and effect of new land laws

Duties of a purchaser’s advocate

PRELIMINARIES
Conduct a client interview to get acquainted with the transaction and obtain
instructions, discuss fees, ascertain clients financial arrangement. Advise client
on conducting a survey then verify the report, taxation matter i.e. rent rates
stamp duty

INVESTIGATION
Verify the title document from the vendor/ his advocate. Conduct a search, make
pre contract inquiries and requisitions, physical inspection of the property

CONTRACTUAL STAGE
Receive and hold the deposit in the clients account. Verify the draft contract and
make pre contract inquiries. Consider sellers replies to pre-contract enquiries and
requisitions. Consult the same with the buyer and amend the draft contract as
necessary and return to seller.

DELIVERY
Arrange for the execution of the contract then return engrossed and executed
contract together with deposit cheque to the sellers advocate. Receive
counterpart contract signed by the seller Draft conveyance and send it for
approval and upon approval engross it

COMPLETION
Make pre-completion searches. Make further preparations for grant of mortgage
and ensure that this is in place. Arrange for execution by the buyer and receive
 all monies (disbursement, fees, balance of purchase price and apportionments).
Attend completion and report to client. Stamp conveyance & Mortgage. Get
conveyance endorsed with assessed value and lodge the conveyance for
registration. Make post completion searches, Account to client and release title
documents to client.

Contract completion documents for land bought in the CBD

Original title Rent Clearance Certificate, Rates Clearance
Certificate,
Land Commissioners Consent, Transfer Document, Rent Receipts,

Nemo dat quod non habet rule

A person can only receive title to property from the legal owner the property.
A person cannot transfer title which himself doesn’t have.

Joint tenancy and tenancy in common

Joint tenancy – all unities are present. Title, possession, time and interest but
for tenancy in common the unity of time is missing

Where are searches conducted

Lands Registry, Companies Registry, survey department

Contract completion documents for agricultural land

Original title, land control board consent, rates and rent clearance certificate,
transfer document, spousal consent

Pre contract searches for the purchaser

Inspection of title records or register at the Lands Registry Search, search at
the Companies Registry to confirm existence of the Vendor or solvency of
such Vendor, search at the Local Authority Registry to ascertain any planning
hindrances or notices, search at the Survey Department to reconfirm or
identify boundaries

Ways of investigating title

Searches - Written request to the registrar to carry out a search. Results are
guaranteed by both the registry and the government as accurate. One may be
indemnified for any loss resulting from a defective search. Discovers entries made
that may restrict registration of a conveyance on the land. Encumbrances are
discovered.
Pre-contract inquiries - Touch on the physical stature of the property
 Fetch information that would not ordinarily be available through an official or
personal search
Helps to ascertain the value of the property; physical and patent defects; ascertain
those in occupation; boundaries; check on the fittings and fixtures if any.
Requisitions – these are queries or objections that arise from the investigation
of the title

The purchasers advocate is responsible for the following:

 Carrying out the search
 Scrutinizing title documents
 Approving sale agreement and sends out requisition for the same
 Preparing transfer or conveyance and engrosses the same
 Attending to the execution of conveyance or transfer where necessary
 Stamping and lodging documents for registration
 Obtaining and paying the purchase monies to the vendor’s advocate

Vendor’s advocate should carry out the following fundamental duties:

 Prepares agreement
 Prepares title documents
 Approves transfer/conveyance
 Procures execution of transfer of conveyance
 Attests the execution of a transfer or conveyance
 Receives and accounts for the proceeds of sale to his client

Duties of an advocate acting on behalf of the bank (financier)

Make an undertaking of releasing the funds on registration of the property
and mortgage
Difference between joint tenancy and tenancy in common

Remedies of a purchaser of land upon the National land commission revoking his title

 The commission can request the public to submit claims

 Person may lodge claim orally, memorandum, letter or fill a form
 Commission then vets the claim and may admit or reject
 Background checks, visits
 Decision in writing indicating the nature of the claim, claim and decision.

Remedies

 Compensation
 Restitution
  Relocation to an alternative land
 Creation of way leaves
 Refunds to bonafide third party purchasers

Aggrieved Party

Appeal to the Environment and Land court.

What is a charge in Conveyancing?

Species of security that confers no interest in land but gives property charged as
security.

Difference between profits and easements

Easements include rights of way, rights to light and other similar rights.

Section 2 of the Land Act defines an easement as ‘means a non-possessory interest in

another’s land that allows the holder to use the land to a particular extent, to require the
proprietor to undertake an act relating to the land, or to restrict the proprietor’s use to a
particular extent and shall not include a profit; They to amount to overriding interests.
They are basically rights in alieno solo, for instance, where a person purchases land
subject to easements, the person in the dominant tenement will still have a right to pass
over the servient tenement.
Profits a prendre is the right to go to the land of another person to pick up a product of
the soil. It confers a right to take part of the soil or produce of the servient tenement.
In this respect profits are to be distinguished from easements, which are essentially
privileges without profit. A profit is further distinguishable from an easement in that a
profit may exist ‘in gross’. This means that the owner of the profit need not be the
owner of any adjoining or neighbouring land or indeed any land at all. There need not
be a ‘dominant tenement’.

Nemo dat Rule and its exceptions

A person cannot pass title which himself doesn’t have. One can only acquire title from
the owner of the property.
Exceptions:
(a) estoppel (conduct of the owner);
(b) sale under a common law or statutory power;
(c) sale under a voidable title;
 (d) sale by a mercantile agent;
(e) sale by a seller in possession;
(f) sale by a buyer in possession
Whether a foreigner can own land

 Under the Consitution of Kenya 2010, Article 65,

65. (1) A person who is not a citizen may hold land on the basis of leasehold
tenure only, and any such lease, however granted, shall not exceed ninety-nine
years.

The relationship between conveyancing and the Advocates act

50 clients have been living in a land belong to KSL for 20 years. The new director wants
to evict them. Do they have a course of action? Yes/No

Name the completion documents in a Conveyancing transaction

Under what type of property does sealing mostly happen?

How to pay Stamp Duty

Environmental impact assessment

Consents you needs to acquire before transferring interest in land

Easements

Completion documents for agricultural land

Valuation report

The requisite consents i.e. Land Control Board consent, Spousal Consent and if
applicable, Railways & Airport Consent.

Duly executed transfer forms in triplicate (must be sealed if a company is selling)

Passport Photos of the Vendor if it’s an individual and if a company, then 3

photos each of 2 directors of the company

Copy of Pin Number of the Vendor

Copy of National ID of the Vendor and if a company, copies of National IDs for 2
directors who’ll sign the transfer forms.

Copy of the Registration Certificate if it’s a company.

 PIN Certificate of Company

Rates Clearance Certificate (In Case the tenancy of the land is freehold)

Rent Clearance Certificate (In Case the tenancy of the land is leasehold) freehold
and rents & rates clearance if leasehold.

Ways of investigating a title

 Searches -It is effectively the purposeful inspection of title records or register at

the relevant (Lands) Registry.

 Pre Contract Inquires - they are preliminary inquiries relating more to the
physical condition of and location of the subject property as well as the
proposed contractual document itself. A Purchaser will ordinarily want to
know the physical and extent of the property.

 Requisitions - purpose of requisitions on title besides aiding the process of

investigation of title is to help give the Purchaser title in accordance with
the contract for sale. Requisitions relate to matters which arise not on the
basis of the search or simple physical inspection of property but through
the inspection of the title document or abstract availed. The requisitions
are in the form of questions arising after a perusal and deduction of the
title document.

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?

 The buyer can make an urgent application to the court. This is through certificate
of urgency, notice of motion and a supporting affidavit. He will then accompany
it with the plaint supported by the necessary pleadings.
 Now, and this is what is important, the purchaser will seek the equitable relief of
rectification to include the element of time if he is interested in performance of
the contract, or orders of mandamus to compel the vendor to perform his end of
the contract.

What is the nemo dat principle?

 Nemo dat non quod habet principle is a Latin maxim which means that you
cannot give that which you do not have. In a nutshell, the principle affirms that
you cannot pass good title to a third party if you are not the owner of the goods.
 The principle aims to protect the rights of the true owner of the goods as well as
bonafide purchasers.

What are garnishee proceedings?

 Garnishee proceedings are those where one has a decree but property of the
judgement debtor (the person who lost the case and judgement was passed
against) is not in his hands but in the hands of a third party. The procedure
instituted by the decree holder against the third party holding the property is
referred to as garnishee proceedings

Remedies of a purchaser of land upon the National land commission revoking his title

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?

 The buyer can make an urgent application to the court. This is through certificate
of urgency, notice of motion and a supporting affidavit. He will then accompany
it with the plaint supported by the necessary pleadings.
 Now, and this is what is important, the purchaser will seek the equitable relief of
rectification to include the element of time if he is interested in performance of
the contract, or orders of mandamus to compel the vendor to perform his end of
the contract.

What vitiates a contract?

Vitiating elements of a contract are those factors which make a contract void or
voidable. They include:

• Mistake
• Duress
• Misrepresentation
• Undue influence
• Illegality.

Nemo dat principle

A person cannot pass title which himself doesn’t have. One can only acquire title from
the owner of the property

Contract completion – when does it happen and what is a contract completion notice

After investigation of titles and execution of the sale agreement, the next and final stage
is the completion and transfer. The purchaser is to pay the balance of the price and the
vendor is to deliver the title documents for registration.

Contract completion notice – notice issued to the party that has failed to complete the
contract

a) Time limitation must be reasonable (21 days is reasonable notice)

b) must demand performance of the contract

c) must be explicit i.e. that you will rescind (cancel) the agreement if
performance demanded is not effected. You must leave no room that
another notice will be given

d) The notice must be served. Service can be effected on either the party in
default or his advocate e.g.

e) The notice mus t not be premature i.e. when the other party is in default

f) Indicate willingness to perform your part of the bargain. e.g. ability to

grant vacant possession etc,you have to walk thetalk.

Eminent domain

 The power to take private property for public use by a state, municipality, or
private person or corporation authorized to exercise functions of public
character, following the payment of just compensation to the owner of that
property

Doctrine of survivorship/jus accrescendi

In a joint tenancy – when one party dies, the other party gets the deceased share of the
property. The surviving party takes the whole property.

Who drafts a sale agreement – vendors advocate

What a purchasers advocate does with it – verifies it and raises pre contract inquiries
with the vendors advocate and also advises the purchaser on it.

How many engrossed copies do u need – two engrossed copies, one for each party

What is a charge and a discharge

The list of exceptions to the nemo dat rule

The main exceptions, from various sources, are:(a)estoppel (conduct of the owner);
(b)sale under a common law or statutory power;(c)sale under a voidable title;(d)sale by
a mercantile agent;(e)sale by a seller in possession;(f)sale by a buyer in possession

Duties of a purchasers advocate

STEPS COMMONLY TAKEN BY THE BUYERS ADVOCATE

1. Take instructions from the buyer, consider conflict of interest, discuss and agree
on the fees, discuss his financial arrangement.

2. Advise the buyer on the desirability of having a survey conducted and a physical
inspection of the property and determine appropriate completion date. Advise
the buyer on taxation matters i.e. rents rates VAT and stamp duty implications on
the transactions

3. Receive and hold the deposit in the clients account.

4. Consider surveyors or valuer’s report and Deal with planning matters

5. Investigate title and make requisitions

6. Consider the draft contract and raise pre-contract inquiries. Consider sellers
replies to pre-contract enquiries and requisitions. Consult the same with the
buyer and amend the draft contract as necessary and return to seller.

7. Make preparation for the mortgage facility if the lender is separately represented
and advise the buyer on the terms of mortgage.

8. Engross or receive engrossment of contract, arrange for the execution of the

contract then return engrossed and executed contract together with deposit
cheque to the sellers advocate. Receive counterpart contract signed by the seller
 9. Draft conveyance and send it for approval and upon approval engross it

10. Make pre-completion searches

11. Make further preparations for grant of mortgage and ensure that this is in place

12. Arrange for execution by the buyer and receive all monies (disbursement, fees,
balance of purchase price and apportionments)

13. Attend completion and report to client

14. Stamp conveyance & Mortgage get conveyance endorsed with assessed value
and lodge the conveyance for registration Give notice to tenants where
applicable.

15. Make post completion searches, Account to client and release title documents to
clients then Dispose of any documents as instructed pertaining to the transaction

The vendor’s advocate carries out the following fundamental duties:

PRELIMINARIES: Prepares the sale agreement or contract, title documents and other
contract completion documents

INVESTIGATION: confirm availability of funds from purchasers advocate

CONTRACTUAL STAGE: Approves transfer/conveyance. Procures execution of

transfer of conveyance. Attests the execution of a transfer or conveyance. Receives and
hold deposit in clients account.

DELIVERY: Receives and accounts for the proceeds of sale to his client

COMPLETION: Attend completion. Receive the balance and release the contract
completion documents

What are controlled transactions

These are transactions dealing with agricultural land. Land Control Act Section 2
defines agricultural land as land that is not within urban and municipality areas. These
transactions require the consent of the Land Control Board
Procedure in the Land control Act

This deals with controlled transactions/ transactions involving agricultural land. Any
transaction in respect of agricultural land must obtain the consent of the LCB. This
requirement is set out in s.6 of LCA. The form used to apply for consent is Form 1 of the
Schedule. The consent is issued by the LCB which is established to cover land within
which your land falls. You must appear before the LCB and make your application. It
will ask several questions before issuing the consent. The consent is then extracted i.e.
the letter of consent which you will present together with the transfer. The letter should
be signed by the chairman of the LCB. If consent is denied you could appeal to the
provincial LCB. Final right of appeal lies to the High Court where you can seek judicial
review

Completion docs

i. Title deed

ii. Consent

iii. Transfer document

iv. Rent clearance certificate

v. Rates clearance certificate

vi. Rent receipts

vii. Certificate of occupation (given by the county govt) – new building

viii. Certificate of practical completion (given by architect) – new building

ix. ID Card

x. 3 passport photos

xi. Pin number

New Property

– Original head title,

 – Transfer

– Certificate of completion issued by the architect

– Certificate of occupation confirming that the property is fit for occupation

– share certificate and memorandum and articles of association of the

management company

– planning approvals from the planning department and Nema

– Consents and clearance certificates

– Stamp duty valuation forms

How to register a caution.

How many parts does a land register have, name them

Laws governing Conveyancing

Obligations of the purchaser's and seller's advocates.

Demonstrate how a professional undertaking works where there's a vendor purchaser

and financier.

What would you do as the advocate for a client putting up sectional property

What is a holding charge.

Definitions of holding charge

an accusation of a minor criminal offence brought against someone so that they can be
held by police while more serious charges are prepared or investigated. "Police have
laid a holding charge against a 29-year-old foreign man in connection with a double
murder.

What does time is of the essence mean?

If 'time is of essence' hasn't been stipulated in the conveyance agreement, what is the
procedure for claiming debt due if acting for purchaser?

Effects of non registration in a conveyance.

If you are acting for the vendor and 20% of the purchase price has been paid, what is
the best way to act if timelines in law for payment of the remaining amount has lapsed.
What are the major differences between sale by auction and an ordinary sale?

Meaning of Police powers in conveyancing.

Sale of land from an illegal transaction

Explain sectional property Act.

Types of ownership under Sectional property.

Spousal consent and it's implication on sale.

Application question in relation to Compulsory Acquisition.

What is a charge in Conveyancing?

A charge is an interest in land that guarantees the payment of money by the chargor to
the chargee.

It is an overriding interest under sec 28 of the Land registration Act

Difference between profits and easements

They are both types of servitudes (which are factions that gives certain rights to land to
that doesn't belong to someone) An easement is like gentleman's agreement which is
not registered but gives rights to passage access to water etc

Profit a prendre operates like a license that allows one to go into another person's land
and come out with something that benefits them eg hunting permit, harvest permit. It
should be capable of ownership and product of nature

Whether a foreigner can own land

Art 65 of the COK an a leasehold interest that does not exceed 99 years

Sec 9 and 6 of the land Control Act provides that foreigners cannot own an interest in
agricultural land or controlled land

However, in practice there's a loophole in that the Act does not deal with an issue of
ownership of shares by foreigners in public companies owning agricultural land and
therefore they form public companies which buy

Adverse possession
Section 17 of the Limitations of Actions Act which provides that once the period of 12
years of adverse possession has expired without an action to recover the land, the title
of the registered owner of the land stands extinguished by the operation of the law.

Continuous uninterrupted and open occupation of land for a period of 12 years

Not public land

Section 7 of the Act which states that an action may not be brought by any person to
recover land after the end of 12 years from the date on which the right to own the land
was granted.

The relationship between conveyancing and the Advocates act

Anaj warehousing v NBK

Sec 46Undercutting, touting

Stamp duty payable for a plot value 10000000 in Nrb

Transfer 4% of value of land

Lease1% and 2%

Charge 0.1%

Discharge/reconveyance of charge 0.05%

Sale of land from an illegal transaction

PROCAMLA

Sec 46 of Advocates Act states that the sale of land from an illegal transactions is not
valid and any interest transferred out of that transaction will be unrecognised by court
and by law because they are invalid too

Name the completion documents in a Conveyancing transaction

● Sale agreement(original title docs, ID) ,

● KRA Pin,
 ● Consents

● Completion(Outgoings and utility bills, CGT acknowledgement slip and receipt,

rate and rent clearance cert, service charge, water and all other utility bills)

● Duly executed Charge, PU,

● Transfer, Charge,

● Discharge,

● Duly filled form for payment of stamp duty

Unique to sectional properties- NEMA cert, WARMA cert, NCA consent, Cert of
Practical Completion from Developer, Share certificate showing you own shares in the
ManCo, ManCo incorporation certificate and Certificate of occupation from local
authority

How many parts does a land register have, name them

3 they include;

1. Property section

2. Encumbrances section

3. Proprietorship section

What are some of the laws governing Conveyancing

COK: Art 40, 64, 65

The Law Society of Kenya Conditions of sale

Land Registration Act

Land Registration regulations

Community Land Act

Community Land Regulations

Land Act

Sections property act

Registration of document act

Stamp duty act

National Land Policy

Land Contol Act

What those laws repealed

Government Lands Act

Registered Land Act

Registration of titles act

ITTPA

Distinguish between stamp duty and CGT?

Stamp duty is the tax on the government stamps that need to be affixed to the
conveyancing doc during registration. It is paid by the purchaser

CGT is the tax levied under the capital gains tax on capital gains made through the
transfer of property situated in Kenya. It is 5% of net gain and it’s paid by the vendor.

Who is charged with getting the stamp duty. Purchaser

Who drafts the sale agreement. Who drafts the transfer documents.

sale agreement-seller

transfer - buyer nowadays its a form LRA 33 that you download

Obligations of the purchaser's and seller's advocates.

Purchaser due diligence through searches, to ensure the client gets the completion
documents, to uphold a PU, ensure all outgoings are paid if agreement states so, to pay
stamp duty

Vendor- draft the sale agreement, client interview to find out the particulars of the
matters, Do requisitions with purchasers adv, procure required consents, ensure CGT is
paid, pay land rent and rates, ensure that actors in conveyancing are paid

Demonstrate how a professional undertaking works where there's a vendor purchaser

and financier.
Impasse when the seller requires full amount to release completion docs and the
financier wants the completion documents. The Financiers adv issues a PU promising to
transfer funds as soon as they receive completion documents and register transfer and
charge

What would you do as the advocate for a client putting up sectional property

Developmental conveyancing

NCA

NEMA cert

Cert of practical completion

Cert of occupation from local authority

If they are the developers in a ensure that they get subleases

Assuming Mrs Ruto and Mbogo were to get in an agreement what would i expect to see

in the agreement.

1. Description of parties

2. The recital

3. Nature of interest

4. Purchase price

5. Breach and default

6. Arbitration clause

If you are a conveyance advocate and your client agrees to divide for you a piece of
land after litigation as payment will that be right?

Sect 45 - fix amount of fees

Sect 46- invalid agreements

a. Advocate purchases interest in suit

b. Agreement relieving advocate of negligence

c. Based on success contingency

d. Fees less than remuneration prescribed

Ahmednassir Nassir V NBK

Effects of non registration in a conveyance.

Conveyancing is complete only once registration is effected.

1. No registration

2. Stamp duty (Evade taxes)

3. Sect 24 of LRA vests In a party absolute ownership of that land

4. Certificate of title conclusive evidence of proprietorship

If you are acting for the vendor and 20% of the purchase price has been paid, what is
the best way to act if timelines in law for payment of the remaining amount has
lapsed.

Retain the 20% as a penalty

Go to court for specific performance

Remain with completion documents handed over to them during the completion stage

What are the major differences between sale by auction and an ordinary sale?

1. The difference is that in an auction there will be several prospective buyers called
bidders.

2. In an auction buyer acts on your schedule in an ordinary sale you wait for them

3. In an auction property is sold without contingencies in an ordinary sale

contingencies are there

4. In an auction the focus is in your property in an ordinary sale you property is

among many being advertised

Represent the buyer and seller in a transaction for the purchase of land.(due diligence)

Completion documents.

What's the difference between a charge and a mortgage?

In a mortgage, the ownership remains with the borrower and the possession is given to
the lender.

If in any situation, borrower fails to pay back in time, the lender has right to sell the
mortgaged property and recover the amount

What is power of attorney

Legal instrument where donor gives donee power go act on their behalf

In everyday transactions when is the power of attorney given

The qualifications of one to give power of attorney

Sound mind, Lucid moments, 18+,

Am a tenant. I have paid ksh 5000 rent.The landlord comes and breaks the door.Where do I go
and for what remedies?

Since the Rent Restriction Tribunal restrictions it is 2500.magistrate court will be the
place.

a. A tenant may seek compensation for damages he has occurred

b. The tenant may seek to be reinstated back to the premises

What is an ombudsman?

Ombudsman is a constitutional commission established under Article 59(4) of the

Constitution, and the Commission on Administrative Justice Act, 2011.

The mandate of Office of the Ombudsman is two-fold, and extends to both national and
county governments.

Firstly, the Commission has the mandate of tackling maladministration (improper

administration) in the public sector. In this regard, the Commission is empowered to,
among other things, investigate complaints of delay, abuse of power, unfair treatment,
manifest injustice or discourtesy.
Secondly, the Commission has the mandate of overseeing and enforcing the
implementation of the Access to Information Act, 2016

What is eminent domain?

Eminent domain (Police power) is the power of the government to take away private
rights by forcing involuntary transfer of their property to the state for the benefit of
society.

It's vested in article 40 (2)

The land acquisition act cap 295.

Though the state is mandated to carry out eminent domain reasonable time and
adequate compensation whenever this happens.

Recourse when your land has been compulsorily acquired

NLC is to make a prompt award to the person who had the repossessed land. (See Sec.
115 of L.A)

It is also upon the person to see to it where part of land is acquired, that the acquiring
body through the Commission geo-references the acquired land and produces separate
titles for the repossessed land and remaining land at their own expense.

Interest on the amount payable payable if delayed

Sue the NLC

Who does valuation of the land in compulsory acquisition.

Am of the opinion that valuation is done by commissioner of lands (Valuer at the NLC)

Section 10(2) of the Land Acquisition Act

What is adverse possession

Adverse possession is a situation where a person takes possession of land, asserts rights
over it and the person having title to it omits or neglects to take action against such a
person in assertion of his title for a period of 12 years.

A party claiming adverse possession must prove:

1. Possession that was open peaceful and continuous

(Wambugu v Njuguna 1983)

Difference between a sale agreement and actual sale of goods

Nemo dat Rule and its exceptions

A person cannot pass title which himself doesn’t have. One can only acquire title from
the owner of the property.

Exceptions:

(a) estoppel (conduct of the owner);

(b) sale under a common law or statutory power;

(c) sale under a voidable title;

(d) sale by a mercantile agent;

(e) sale by a seller in possession;

(f) sale by a buyer in possession

Whether a foreigner can own land

Under the Constitution of Kenya 2010, Article 65,

65. (1) A person who is not a citizen may hold land on the basis of leasehold tenure
only, and any such lease, however granted, shall not exceed ninety-nine years.

. Question on Ksl land-

● KSL is a parastatal and the land they own is Public land which KSL holds in trust for the
people and as such cannot be subject to adverse possession.

● In the case of Kahindi Ngala. The first requirement for adverse possession is it must be
private land

Parties

Particulars of the sale – subject matter

Conditions and warranties

Completion date

Passing of property

Remedies in case of breach

ADR

Termination

Definitions and Interpretations

Incorporation of LSK Conditions for Sale

Agreement for Sale and interest sold

Special conditions

Capacity

Purchase price and Deposit

Completion documents

Assignment Clause

Default Clause

Non merger Clause

Disclaimer (refusal to accept responsibility)

General (usual)

Intention to be bound

Execution

Professional undertaking at what stage does the financier advocate do it

Made during completion of the contract

Mortgagee’s Advocate undertakes to pay the loan proceeds upon registration of the
Charge plus/or transfer simultaneously.

Contract completion – when does it happen and what is a contract completion notice
After investigation of titles and execution of the sale agreement, the next and final stage
is the completion and transfer. The purchaser is to pay the balance of the price and the
vendor is to deliver the title documents for registration.

Contract completion notice – notice issued to the party that has failed to complete the
contract

a) Time limitation must be reasonable (21 days is reasonable notice)

b) must demand performance of the contract

c) must be explicit i.e. that you will rescind (cancel) the agreement if performance
demanded is not affected. You must leave no room that another notice will be given

d) The notice must be served. Service can be effected on either the party in default or
his advocate e.g.

e) The notice must not be premature i.e. when the other party is in default

f) Indicate willingness to perform your part of the bargain. e.g. ability to grant
vacant possession etc,you have to walk the talk.

The principle of jus accrescendi in relation to commorientes

quicquid plantatur solo, solo cedit - fixtures

Cujus est solum- heaven to core

You are a purchaser’s advo. Before completion, the vendor mortgages the property and
the purchaser insists on getting the property what do you do

Advise purchaser to retain purchase price or go to court and sue for specific
performance as he has performed his duty in the sale agreement. He can retain deposit
of the balance of the purchase price

Documents drafted by the vendor’s advocate?

● Notice of appointment

● Letter of intent

● Sale agreement

● Completion notice

● Offer letter
How to proceed where a purchaser has full price, vendor is a willing seller but the land
has a charge

Discharge of charge by the purchaser’s advocate

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 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.

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:

(i) 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)

(ii) 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 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:

(i) The parties expressly stipulate that conditions as to time must be strictly
complied with;

(ii) 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

(iii) 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

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:

o S, 49  Action for price

o S. 50  Action for damages

 Real remedies:

o S. 41 – 43  Right of lien or retention of goods

o S. 44 – 46  Stoppage in transit

o S. 48  Right to re-sell goods (to mitigate damages)

 o Right to withhold delivery of goods where property has not passed to the
buyer

How do you conduct an online search?

 Create an e-citizen account

Tell us what you know on adverse possession?

 Section 7 of the Limitation of Actions Act  the plaintiffs must show:

o That they have been in continuous Possession of the land for 12 years or
more;

o That such Possession has been open and notorious to the knowledge of
the owner; and

o 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 are overriding interest, legal easements, way leave, public rights of way and
profit a pendre?

 Overriding interests:

o 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
 o 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:

o 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

o 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

o 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)

o A wayleave (created on the servient land) is a terminable licence which

does not automatically bind future owners of the property

o It grants you access to the way leave for purpose of development,

restricting, etc.

o 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

o A way leave will normally contain provision for termination at the expiry
of a notice period (commonly 6 or 12 months)

o 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:

o 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

o E.g. petroleum, timber, minerals, agricultural produce, wild gain, etc.

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

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:
 o A declaration of rights issued, including but not limited to a declaration of
ownership of land;

o An injunction issued barring the NLC or Chief Land Registrar from

revoking a title to land;

o An interim order protecting the land from revocation or other harm

pending determination of the suit;

o 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

o 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

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:

o 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

o 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?

o By way of deed

o By way of a grant

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 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

Constitutionality and effect of new land laws.

 Effect of new land laws:

o To have one registration system and one land registry

o Titles to be called Certificates of Lease or Certificates of Title

o 3 categories of land have been created: public, private and community

o 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

o Consent of spouse is needed relating to certain transactions

o Introduction of the Environmental and Land Court

o Changes to laws on leases and charges

o The establishment of the National Land Commission

 Constitutionality:

o Access to justice and FAA is improved

o 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

o Obtain copy of the title

o Check for encumbrances on the title

o 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

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

What are deal breaking clauses in conveyancing?

 If the purchaser goes insolvent

 Lack of adequate consideration for the land

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
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

Difference between a caution and a caveat.

 Caution: this is a restraint over dealings in the land (e.g. a caveat)

o 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

o 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

What consents are required for a purchase of land in Kajiado? What completion
documents are required for this transaction?

 Agricultural land or livestock areas:

o West Pokot

o Turukana

o Marsabit

o Mandera

o Kajiado

o Wajir
 o Garissa

o Tana River

o Narok

o Samburu

o Isiolo

o 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)

o 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

o 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 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)

Duties of a purchasers advocate

STEPS COMMONLY TAKEN BY THE BUYERS ADVOCATE

 Take instructions from the buyer, consider conflict of interest, discuss and agree
on the fees, discuss his financial arrangement.
 Advise the buyer on the desirability of having a survey conducted and a physical
inspection of the property and determine appropriate completion date. Advise
the buyer on taxation matters i.e. rents rates VAT and stamp duty implications on
the transactions
  Receive and hold the deposit in the clients account.
 Consider surveyors or valuer’s report and Deal with planning matters
 Investigate title and make requisitions
 Consider the draft contract and raise pre-contract inquiries. Consider sellers
replies to pre-contract enquiries and requisitions. Consult the same with the
buyer and amend the draft contract as necessary and return to seller.
 Make preparation for the mortgage facility if the lender is separately represented
and advise the buyer on the terms of mortgage.
 Engross or receive engrossment of contract, arrange for the execution of the
contract then return engrossed and executed contract together with deposit
cheque to the sellers advocate. Receive counterpart contract signed by the seller
 Draft conveyance and send it for approval and upon approval engross it
 Make pre-completion searches
 Make further preparations for grant of mortgage and ensure that this is in place
 Arrange for execution by the buyer and receive all monies (disbursement, fees,
balance of purchase price and apportionments)
 Attend completion and report to client
 Stamp conveyance & Mortgage get conveyance endorsed with assessed value
and lodge the conveyance for registration Give notice to tenants where
applicable.
 Make post completion searches, Account to client and release title documents to
clients then Dispose of any documents as instructed pertaining to the transaction

The vendor’s advocate carries out the following fundamental duties:

PRELIMINARIES: Prepares the sale agreement or contract, title documents and other
contract completion documents

INVESTIGATION: confirm availability of funds from purchasers advocate

CONTRACTUAL STAGE: Approves transfer/conveyance. Procures execution of

transfer of conveyance. Attests the execution of a transfer or conveyance. Receives and
hold deposit in clients account.

DELIVERY: Receives and accounts for the proceeds of sale to his client

COMPLETION: Attend completion. Receive the balance and release the contract
completion documents
Differences between Condition and Warranty

Condition Warranty

A warranty is a stipulation
1. A condition is a stipulation which is essential to
which is collateral to the main
the main purpose of the contract.
purpose of the contract.

For the breach of warranty, the

2. For the breach of condition, the affected party
affected party can claim
can abandon the contract of sale.
damages only.

3. A breach of condition may be treated as a breach A breach of warranty cannot be

of warranty. This happens if the affected party in any way treated as breach of
decides to claim damages only. condition.
Criminal
Difference between bail and bond?

Bail is an amount of money, usually paid by an accused person in criminal proceedings

after they plead not guilty so that they do not spend time in remand during the
duration of the trial. Failure to appear in court during a hearing of their case leads to
forfeiture and in some instances issuance of fresh warrant of arrest.

Bond is more or less an undertaking by an accused person, it's promissory in nature and
where an accused person, should they fail to make an appearance, the security bonded
is forfeited.

Bail is an agreement between an accused person or his sureties and the court that the
accused person will attend court when required and that should the accused abscond,
in addition to court issuing warrants of arrest, a sum of money r property directed by
the court to be deposited will be forfeited to the court- according to bail and bond
policy guidelines

Types of bail:

• Anticipatory bail

• Police bail

• Pending trial bail

• Pending judgement bail

• Bail pending appeal

What do you do when your client pleads guilty?

If you're client pleads guilty, you confirm if indeed the client did understand the
charges and consequences of pleading guilty. You inquire if the client had legal
representation in the first place. If not, the charges will be read a fresh and the client
pleads again. If it turns out that the client still pleads guilty, you can ask the court to
mitigate on the sentence. If also you are not satisfied with the outcome of the case, there
is an avenue for an appeal.

Explain the concept of bail and capital Offences

Explain relationship between bond, surety and recognizance

Different types of immunity under criminal law

Presidential immunity- Article 143 COK provides protection to the president or any
person performing functions of that office from criminal proceedings during their
tenure of office.

Diplomatic Immunity-Sec 31 Privileges and immunity act grants protection to

Diplomatic agents, consular posts and heads of state from criminal jurisdiction of the
receiving state. It includes the obligation not to give evidence.

Ways of terminating a case under criminal law

Explain the M’Naghten Rule

This is the test applied to determine whether the accused person was sane at the time of
committing a crime.

The accused must have been labouring under a defect of reason caused by a disease of
the mind at the time he committed the offence. As a result of such disease, he did not
know what he was doing or did not know that what he was doing was wrong.

Explain the ‘Skull Principle’ in criminal law

A wrongdoer must take his victim as he finds him. Therefore, the fact that the victim
had a previous condition that made the injury more severe is not a defence, even if an
ordinary person in perfect health would not have suffered in the same way. Case on
point R v Blaue

Difference between murder and manslaughter

• Murder involves both intention (mens rea) and action ( actus reus) that causes
death.

• Manslaughter is causing death without intending to do so

Difference between judgement and sentencing

Compare a confession and an admission

Section 17 of the Evidence Act defines admission as a statement oral or written which
suggests any reference as to a fact in issue or relevant fact and which is made by any of
the parties.

Formal admissions are usually made in the pleadings, a party to a breached contract
claim can admit blame and that will be a formal admission

While informal admission may be made before or during proceedings.

Admission is a statement made by any person referencing to the fact in issue

Confession is an admission made by accused person before a judge, magistrate or police

officer (other than investigating officer)

In addition, confessions before a Police Officer have to be before one of the rank of
Inspector or higher in rank.

Section 25 of the Evidence Act defines a confession as words, conduct or a combination

of both, from which whether taken alone or in conjunction with other facts proved, an
inference may reasonably be drawn that the person making it has committed an offence

Can spouses testify against each other?

The general rule is that spouses cannot be compelled to disclose any information made
during the subsistence of a marriage. There are nevertheless some exceptions:

1. in a case of offence of bigamy.

2. in torts involving persons or property or any child to the marriage.

3. where one spouse is charged with an offence against morality.

See section 130 (1) Evidence Act.

Types of pleas and their explanations

• Plea of not guilty - it’s the formal admission in court as to the guilt by the
accused. The accused does not admit to the charge and trial has to proceed to
ascertain his or her guilt.
 • Plea of guilty - the accused admits the charge therefore no need of trial.

• Plea of autrefois acquit - plea by the accused that they have previously been tried
of the same offence and acquitted of it.

• Plea of autrefois convict - the accused pleads that they have been convicted of
the same offence. This is based on the legal requirements that an accused person
should be subjected to double jeopardy.

• Plea of presidential pardon - president has power of pardon and once exercised,
the accused person cannot be charged of the offence they have been pardoned.

• Plea as to limitation of time - an accused may plead that the charge is barred by
limitation of time and in effect prosecution will terminate. I.e. section 45(d) of the
penal code provides that the offence of treason must be prosecuted within 2
years of its commission.

What is a voire dire and how is it applied?

Voire dire is a mini trial within a trial. Its purpose is to carry out an investigation of the
admissibility of evidence during trial example the evidence given by a minor

What is causation in criminal law

Causation involves establishing a link between the act of the accused person and the
result crime. It can be legal or factual.

• For legal causation, the harm must result from the culpable act. The prosecution
must prove that there was novus acts interveniens.

• Factual causation is established using the ‘But For Test’ look at the case of R v
White 1910 2 KB 124

Difference between inquest and commission and inquiry?

A Commission of Inquiry is one of many bodies available to the government to inquire

into various issues. Commissions report findings, give advice and make
recommendations. While their findings are not legally binding, they can be highly
influential.
An Inquest is a judicial or official method of investigation of an incident or sudden
death.

What is an equivocal plea?

Equivocal plea- where the defendant pleads guilty but says something contradictory
that indicates a defence

What is Prima facie

• Prima facie means on the face of it or also upon first impression unless proven to
be otherwise.

• Can be used to describe how a client might have a prima facie strong case

Types of pleas
Plea of not guilty
Plea of guilty
Autrefois acquit – where the accused was charged and acquitted of the similar
charges under the same facts
Autrefois convict – where the accused was charged and convicted of similar
charges under similar facts
Double jeopardy – where the accused was already charged of the same crime
under the same facts
Pardon – the accused says that he was previously pardoned over the same crime

Difference between review n judicial review

Review is the reconsideration or re-examination of a decision so as to amend or
alter it where its desirable or necessary. It is a second look at a decision already
made by the authority which made it. It is done on certain grounds:- where there
is discovery of a new and important matter or evidence; where there is an error
apparent on the face of the record, or for any other sufficient reason. The
discovery must be new, important, due diligence had been exercised so as not
have found it and it could not be produced before the decision in question was
made.
Judicial review is an application made to a higher authority to review the
decision made by a subordinate authority. It is made to review the manner in
which a decision was made.

Difference between judicial review and appeals

 Judicial review is meant to ascertain the manner in which a decision was made.
The court’s exclusive concern is with the legality of the administrative action or
decision in question. In appeals, the court is concerned with the merits of a
decision. The court substitutes its own decision for that of some other body.

Duplicity of charges on a charge sheet

A charge is a formal written accusation or complaint against a person for an
offence provided for in law. It is drawn by a magistrate or a police officer and
signed as required by law. Black’s Law Dictionary defines duplicity of charges is
the joining of two or more offenses in the same count of an indictment. It is a
legal requirement that a charge should not suffer from duplicity. Duplicity occurs
where the charge or count charges the accused of having committed two or more
separate offences the charge is barred for duplicity. Duplicity can be avoided
where a statute creates offences in the alternative, Section 86 of the Traffic Act
provides for offences created in the alternative e.g. causing death by driving a
motor vehicle:
a) driving recklessly;
b) driving at high speed.
c) Driving in a manner dangerous to the public.
d) Leaving the motor vehicle on the road in a manner dangerous to the public.
All these are stated in the alternative so that you cannot be charged of two or
more but only one of the alternative.

Insanity proceedings
Insanity is any mental disorder, which is severe enough to prevent a person from
having legal capacity, and excuses the person from criminal or civil liability.
Insanity arises in two instances:
 The first one is when it is alleged as a defence, that is, the person was
insane at the time of the act which now constitutes the offence.
 The second is what has been termed in other jurisdictions as procedural
insanity, that is, where the person, though sane at the time of the act, no
longer enjoys the same degree of sanity to such an extent as to render him
incapable of understanding the charge and or making his defence.
Procedure in insanity - sections 162-167 of the Criminal Procedure Code.

Section 162 – Court inquires as to the soundness of an accused’s mind if in the course of
a trial the accused is incapable of making his defence because of unsoundness of mind.
If so, it postpones the proceedings but where the court finds the accused fit to continue
with the trial then the proceedings will continue.
Section 163 – where the accused applies for bail, court may release him on condition
that sufficient security has been given that the accused will be cared for well and that he
will be prevented from injuring himself or any other person and that his presence in
Court shall be guaranteed. Where bail is denied due to insufficient security, the Court
may order that the accused be retained in safe custody and then transmits the Court
record or a certified copy to the Minister for the President’s consideration.
The president upon consideration may order that the accused be detained in a mental
hospital or other suitable place of custody and the court shall issue a warrant which
shall be sufficient authority for the detention of the accused till the president makes a
further order in the matter until the court which found him incapable of making his
defence orders him to be brought before it again in the manner subscribed in Sections
163 and 1643.
The court will make such determination through the report of a medical officer. Where
the medical officer of a mental hospital or place of custody where the accused has been
taken, finds the accused incapable of making defence, the officer is to forthwith make a
certificate to that effect to the Attorney General 4. The AG in turn is required to inform
the court whether the state intends to continue with the proceedings against the accused
or not5.
Where the AG indicates that he does not intend to continue with the matter, the accused
is to be discharged but that is not a bar to subsequent proceedings against the accused
on the same facts. on the other hand, where the AG says otherwise, the accused shall be
brought before court and the proceedings will start a fresh as if the accused was
brought to court for the first time6.
Section 164 provides that subject to the report of the medical officer, the court may
order that the accused be brought before court and where the court finds that the
accused is still incapable of making his defence then the court shall act as if the accused
was brought before it for the first time.
Section 166 is to the effect that where the court finds that the accused committed an
offence but was insane, so as not to be responsible for his acts or omissions 7, the court is
to make a special finding to that effect. The court is further required to submit the
finding to the president who will make further orders for instance the accused to be
detained in custody or in any other suitable place. It is worth to note that the burden of
proving an averment of insanity lies upon the defence because in Section 11 of the Penal
Code, every person is presumed to be of sound mind until the contrary is proved.
However, where the accused does not raise the issue of insanity, the court will not make

3
Ibid section 162 (5)
4
Section 163 (1)
5
Section 163 (2)
6
Ibid
7
S 12 of the penal code
a finding under Section 166(1) of the Criminal Procedure Code. However, the CPC does
not outline a clear procedure to be adopted in situations where a defendant refuses to
raise and/or plead the defence of insanity. Section 167 of the Criminal Procedure Code
provides for situations where, although the accused is not insane but he is unable to
understand proceedings in court.

Elements of a crime
Actus reus – the prohibited act or omission. The prosecution must prove beyond
reasonable doubt that the accused has committed the prohibited act
Mens rea – the intention to commit a crime. Prosecution must show that the act
was done voluntarily and that there must have been some foresight of the
consequences. No act is punishable if it was done involuntarily e.g. while the
person was sleepwalking or suffering from a concussion or insanity. There are
offences where liability is strict and mens rea doesn’t have to be proved e.g
offences under food drugs and chemical substances act. There are also offences
where actus reus need not to be proved, those under vicarious liability.

Difference between murder and manslaughter

In murder the accused must have been proved to have the malice aforethought to
cause the death of another whereas this isn’t the case in manslaughter.

Framing charges
Statement of the offence based on description of what offence has been
committed.

Particulars are the words which will describe the offender and it will also briefly
describe the particulars of the offence. It will describe the property or goods
which are the subject matter. If the goods are specific, there will be a proper
description of the goods. The particulars are supposed to reveal the ingredients
of the offence.

Forms in a prosecution file

 Initial report
 Documentary evidence – list of exhibits and witnesses, documentary
exhibits
 Accused’s records – his statements
 Investigation diaries
 Experts reports
 Witness statements
  Copies of the charge sheet
 Covering report
 Correspondences

Defence file
  Instruction note
 Client attendance form
 Court attendance form
 Charge sheet
 Legal opinion/brief
 Fee notes
 Copies of documents for bail application
 List of Accused’s property when arrested
 Copy of prosecution file
 Legal research – laws and cases to be relied on
 Case strategy, defence case – statements made by the accused
 Defence witnesses’ statements
 List of authorities cause list
 correspondences

Difference between n a decree and an order

A decree is extracted from a judgment whereas an order is extracted from an
interim application.

Difference between judgment and sentencing

Judgment – means the adjudication by the court that the defendant is guilty
or not guilty
Sentencing - procedure at which a court of law of competent jurisdiction
makes an order on the specific penalty to be meted out to the criminal after
convicting him.

What to do if a client pleads guilty

Ascertain whether the client understands the charges made against him and
advise him on the consequences of making that kind of plea. Ascertain
whether the client based on the facts voluntarily committed the crime so as to
form a strategy for his defence.

The Trial process

Starts by way of a complaint. The complaint is done through the police
process. Person alleging is required to write statement, produce witnesses,
record witness statements, if an offence has been committed police make the
decision to arrest the culprit and take him to court.
Complaint- Arrest- Charges- Plea- Trial- Judgment- Sentence

How criminal cases are initiated

Criminal cases are initiated by a complaint being lodged. A complaint can be lodged
with the police or the magistrates, but the proper way is with the police. It will be
recorded in the Occurrence Book in the Police Station stating who the complainant is
and what the complaint is. The decision to file a case depends on the information in
the OB, the police will take a statement from the complainant, visit the scene of the
incident, take notes of any breakages if any, if it is a murder scene, they will make
photographs of the scene and make arrangements for the body to be examined by a
pathologist. Once the police decide what kind of offence has been committed, they
draw a charge sheet.

Structure of courts
Supreme court – has 7 judges CJ is the President DCJ is the vice president
Has original jurisdiction – presidential election petitions
Appellate jurisdiction – from C.O.A and various tribunals
Advisory jurisdiction – to government, authorities
Court of appeal – has not less than 12 judges
Has appellate jurisdiction – cases from the High Court
High Court/Industrial court/Envt and Land court
Has original jurisdiction for murder cases
Appellate jurisdiction – cases from C.M.Court, tribunals
Admiralty jurisdiction
Supervisory jurisdiction on subordinate courts
Constitutional cases
Cases on violation of Human Rights
Chief Magistrate Court -, value not exceeding 500,000
Senior Principal Magistrates Court - value not exceeding 500,000
Principal Magistrates Court - value not exceeding 300,000
Senior Resident Magistrates Court - value not exceeding 300,000
Resident Magistrates Court - value not exceeding 100,000
District Magistrates Court Grade 1 - value not exceeding 20,000
District Magistrates Court Grade 2 – petty offences
District Magistrates Court Grade 3 – practically non existent

Plea taking
The accused goes to court and the charges as laid out are read to the accused. The
charges must disclose an offence. If an offence is not disclosed the court may
discharge or a fresh complaint may be put in the court. if the charge is proper, it is
read to the accused and the accused is given an opportunity to respond. In case of
petty offence like drunk and disorderly the charges are read and the accused person
pleads. In case of serious cases if the accused person pleads guilty the court
prosecutor is required to go through the file and give evidence of what is contained
in the police file. Then the accused person is required to respond to the charge. If
they agree with the facts as set out in the prosecution file, they are convicted on their
own plea. If the accused person does not agree with certain things in the
prosecution file or dispute facts the court will enter a plea of not guilty or a plea of
pardon, autrefois acquit/convict.
Types of pleas

Plea of not guilty

Plea of guilty
Autrefois acquit – where the accused was charged and acquitted of the similar
charges under the same facts
Autrefois convict – where the accused was charged and convicted of similar charges
under similar facts
Double jeopardy – where the accused was already charged of the same crime under
the same facts
Pardon – the accused says that he was previously pardoned over the same crime.
Immunity.

What does the DCJ refusing to take plea amount to?

Deferment of plea under the law allows for the taking of plea at a later date pending
the directions and/or hearing and determination of a substantive issue affecting the
charge of the DCJ by a higher court.

Now that the DCJ filed a petition in the constitutional court, what power does the
magistrates court have?

They do not have any as a matter that is being dealt with by a higher court cannot be
simultaneously dealt with by a lower court.

What is the effect of illegally obtained evidence in that case?

Article 50(4) provides as follows:

(4) Evidence obtained in a manner that violates any right or fundamental freedom in
the Bill of Rights shall be excluded if the admission of that evidence would render
the trial unfair or would otherwise be detrimental to the administration of justice.

The DCI violated the Petitioner’s right to privacy contrary to Article 31 of the
Constitution. While this violation was not pleaded by the Petitioner, we deem it
critical to assert that in light of Article 50(4), the conduct of the DCI has irredeemably
broken the foundation on which the criminal case against the Petitioner was built,
and the Petition must, to that extent, succeed.

Jurisdiction of the Supreme Court in Criminal matters

Has Appellate jurisdiction from the Court of Appeal on criminal matters on purely
points of law of significant public interest.

Whether the threats on the Deputy President’s life amount to treason

Guided by Section 40 of the Penal Code, the actus reus element of the offence, the
said treasonous act must be directed at the President. The Deputy President is not a
president and therefore this provision shall not apply to him.

Conditions in granting bail

That the accused shall always attend court mentions and hearing unless otherwise
directed by court or if indisposed must have leave of court.

That the accused shall not leave the jurisdiction of the court without leave of court

That the accused shall not interfere with evidence and or witnesses

They will not commit a crime during the pendency of the prosecution

That a default in appearance during mentions shall revert the bail amount to the
state

The accused shall comply with court directions.

Without prejudice

Jowitt’s Dictionary of English Law Vol. 2 at page 1909 and Halsbury Laws of
England 4th Edition Vol 17

Letters written or oral communications made during a dispute with a view to

negotiating a compromise and which were expressed or otherwise proved to have
been made without prejudice could not be admissible.

Case theme

Adaptation of a morality argument to justify the case of your client

Anticipatory bail

Adverse possession

Except for identification parade, how else can an accused person be identified

Judgment in default v summary judgment.

Injunctions.

McNaughten rule

Prima facie case in civil n criminal.

Burden of proof in criminal and civil.

Actors in a criminal justice system.

Does the DPP have absolute power?

Considerations when drafting a Charge Sheet and test in Samuel Githunguri V R

What do judges do when a person accused of murder is brought before them??

Procedure followed when applying for bond and two if you client has been denied
bail twice in a lower court what remedies available for him/her

Your client has been arrested and has not been brought to court what do you do?

Anticipatory bail

What does F1 entail in the prosecution file

Rules to be followed in an identification parade

Types of pleas

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.
On the 3strike principle if the 3rd strike is not a serious or violent crime, one can
appeal and have the sentence reduced or dismissed.

What is treason and elements of treason

Treason is the crime of betraying one's country especially by attempting to kill or

overthrow the government.

Elements

1. Wrongful intent

2. Overt act either levying war against the government or giving aid

3. Owing allegiance to the government

Section 40 of the Penal Code - treason is where an individual or persons:

(a) compasses, imagines, invents, devises or intends –

(i) the death, maiming or wounding, or the imprisonment or restraint, of the

President; or

(ii) the deposing by unlawful means of the President from his position as
President or from the style, honour and name of Head of State and
Commander-in-Chief of the Armed Forces of the Republic of Kenya; or

(iii) the overthrow by unlawful means of the Government; and.

(b) expresses, utters or declares any such compassing, imaginations, inventions,

devices or intentions by publishing and printing or writing or by any overt act
or deed, is guilty of the offence of treason

Explain the McNaughten Rule

This is the test applied to determine whether the accused person was sane at the time
of committing a crime.

The accused must have been labouring under a defect of reason caused by a disease
of the mind at the time he committed the offence. As a result of such disease, he did
not know what he was doing or did not know that what he was doing was wrong.
Explain the ‘Skull Principle’ in criminal law.
A wrongdoer must take his victim as he finds him. Therefore, the fact that the victim
had a previous condition that made the injury more severe is not a defence, even if
an ordinary person in perfect health would not have suffered in the same way. case
on point R v Blaue

Difference between murder and manslaughter

• Murder involves both intention (mens rea) and action (actus reus) that causes
death.
• Manslaughter is causing death without intending to do so

Difference between judgement and sentencing

Compare a confession and an admission

Section 17 of the Evidence Act defines admission as a statement oral or written
which suggests any reference as to a fact in issue or relevant fact and which is made
by any of the parties.

Formal admissions are usually made in the pleadings, a party to a breached contract
claim can admit blame and that will be a formal admission

While informal admission may be made before or during proceedings.

Admission is a statement made by any person referencing to the fact in issue

Confession is an admission made by accused person before a judge, magistrate or

police officer (other than investigating officer)

In addition, confessions before a Police Officer have to be before one of the rank of
Inspector or higher in rank.

Section 25 of the Evidence Act defines a confession as words, conduct or a

combination of both, from which whether taken alone or in conjunction with other
facts proved, an inference may reasonably be drawn that the person making it has
committed an offence

Can spouses testify against each other?

The general rule is that spouses cannot be compelled to disclose any information
made during the subsistence of a marriage. There are nevertheless some exceptions:

 in a case of offence of bigamy.

 in torts involving persons or property or any child to the marriage.
 where one spouse is charged with an offence against morality.
See section 130 (1) Evidence Act.

Types of pleas and their explanations

• Plea of not guilty - it’s the formal admission in court as to the guilt by the accused.
The accused does not admit to the charge and trial has to proceed to ascertain his
or her guilt.
• Plea of guilty - the accused admits the charge therefore no need of trial.
• Plea of autrefois acquit - plea by the accused that they have previously been tried
of the same offence and acquitted of it.
• Plea of autrefois convict - the accused pleads that they have been convicted of the
same offence. This is based on the legal requirements that an accused person
should be subjected to double jeopardy.
• Plea of presidential pardon - president has power of pardon and once exercised,
the accused person cannot be charged of the offence they have been pardoned.
• Plea as to limitation of time - an accused may plead that the charge is barred by
limitation of time and in effect prosecution will terminate. I.e. section 45(d) of the
penal code provides that the offence of treason must be prosecuted within 2 years
of its commission.

What is a voire dire and how is it applied?

Voire dire is a mini trial within a trial. Its purpose is to carry out an investigation of
the admissibility of evidence during trial example the evidence given by a minor

What is causation in criminal law

Causation involves establishing a link between the act of the accused person and the
result crime. It can be legal or factual.

• For legal causation, the harm must result from the culpable act. The prosecution
must prove that there was novus acts interveniens.
• Factual causation is established using the ‘But For Test’ look at the case of R v
White 1910 2 KB 124

Difference between inquest and commission and inquiry?

A Commission of Inquiry is one of many bodies available to the government to

inquire into various issues. Commissions report findings, give advice and make
recommendations. While their findings are not legally binding, they can be highly
influential.
An Inquest is a judicial or official method of investigation of an incident or sudden
death.

What is an equivocal plea?

Equivocal plea- where the defendant pleads guilty but says something contradictory
that indicates a defence.

What is treason and elements of treason

Treason is the crime of betraying one's country especially by attempting to kill or
overthrow the government.

Elements

 Wrongful intent
 Overt act either levying war against the government or giving aid
 Owing allegiance to the government

Section 40 of the Penal Code - treason is where an individual or persons:

(b) compasses, imagines, invents, devises or intends -

(ii) the death, maiming or wounding, or the imprisonment or restraint, of the

President; or
(iii) the deposing by unlawful means of the President from his position as President
or from the style, honour and name of Head of State and Commander-in-Chief
of the Armed Forces of the Republic of Kenya; or
(iii) the overthrow by unlawful means of the Government; and.

(c) expresses, utters or declares any such compassing, imaginations, inventions,

devices or intentions by publishing any printing or writing or by any overt act
or deed, is guilty of the offence of treason

Difference between bail and bond?

Bail is an amount of money, usually paid by an accused person in criminal
proceedings after they plead not guilty so that they do not spend time in remand
during the duration of the trial. Failure to appear in court during a hearing of their
case leads to forfeiture and in some instances issuance of fresh warrant of arrest.
Bond is more or less an undertaking by an accused person, it's promissory in nature
and where an accused person, should they fail to make an appearance, the security
bonded is forfeited

Bail is an agreement between an accused person or his sureties and the court that the
accused person will attend court when required and that should the accused
abscond, in addition to court issuing warrants of arrest, a sum of money r property
directed by the court to be deposited will be forfeited to the court- according to bail
and bond policy guidelines

Types of bail:

• Anticipatory bail
• Police bail
• Pending trial bail
• Pending judgement bail
• Bail pending appeal

What do you do when your client pleads guilty?

If you're client pleads guilty, you confirm if indeed the client did understand the
charges and consequences of pleading guilty. You inquire if the client had legal
representation in the first place. If not, the charges will be read a fresh and the client
pleads again. If it turns out that the client still pleads guilty, you can ask the court to
mitigate on the sentence. If also you are not satisfied with the outcome of the case,
there is an avenue for an appeal.

What are extradition proceedings

Extradition is the return of a person who has come to Kenya after being charged
with a crime to the country he has been charged with the offence.

Deportation – the expulsion of a person out of a country

The attorney general files a miscellaneous application (through a notice of motion)

Coincidence of actus reus n mens rea

Causation in criminal law

The evidence given must be proved to have be part of the facts in issue

The cause of things or relevant facts or facts in issue will be admitted to explain the
cause of an injury

Retracted and repudiated confession

A retracted confession occurs when the accused person admits that he made the
confession but now seeks to recant or take back generally what he said on the
ground that he had been forced or induced to make the statement (the statement was
not a voluntary one). Repudiated on the other hand is a statement that an accused
avers that he never made.

Mitigating circumstances

Factors that cause one to commit a crime e.g provocation, self defence

Capital offences and what they are

Offences which attract heavy punishment

Role of criminal law

 Understand and draft relevant pleadings and documents necessary for

criminal litigation.

 Understand various jurisdictions in criminal litigation;

 Apply the Criminal Procedure Code , CAP 75 and other statutes related to
criminal litigation;

 Understand the processes of criminal litigation generally;

 Identify and apply different forms of procedures applicable to different

forms of criminal litigation;

 Equip students with case management skills to facilitate expeditious

disposal of cases.

Autrefois convict & autrefois acquit

 Autrefois convict- where a person has been tried and convicted of a similar
charge under the same facts

 Autrefois acquit- where a person has already been tried and acquitted of a
similar charge under the same facts.
How to institute a criminal proceeding

Proceedings may be instituted either by the making of a complaint or by the

bringing before a magistrate of a person who has been arrested without warrant

Procedure in identification parade

Burden of proof shifting to the accused

o Where the accused raised an issue e.g of insanity

o When he raises an objection on a point of law, E.g. an objection on

limitation of cause of action being time barred by the Limitation of
Actions Act or the court does not have jurisdictio. Practice is that the
objection should be raised at pleadings. Although nothing prevents one
from raising it at the time of trial.

Res gestae

Under the inclusionary common law doctrine of Res Gestae, a fact or opinion which
is so closely associated in time, place and circumstances with some act or event
which is in issue that it can be said to form a part of the same transaction as the act
or event in issue, is itself admissible in evidence

Cause and Effect

The cause of things or relevant facts or facts in issue will be admitted to explain the
cause of the facts in issue. So the cause of things and the cause of relevant issues will
be admitted to explain the cause of the main fact in issue Section 7 of the Evidence
Act states that,

“Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or
facts in issue, or which constitute the state of things under which they happened or which
afforded an opportunity for their occurrence or transaction are relevant.”

What makes a charge sheet defective?

Ways of terminating a criminal proceeding?

Instances when an accused can be denied bail?

Is right to bail absolute?

When can an arrest be made without a warrant?

Burden of proof in criminal and civil.

Is right to bail absolute?

Instances where bail may be denied.

Doctrine of recent possession in criminal

Defending a foreigner who has committed murder and there are no services of an
interpreter in the court

Contents of a court file.

Decision to charge.

What do you do as the advocate for a client when he pleads not guilty.

What are the three precautions police officers must exercise when effecting an arrest

Different ways of identifying an accused other than the identification parade ...

What is Double jeopardy

What does refusing to take plea amount to?

Mute by malice

Deferred plea

Conditions in granting bail

A right under the constitution guaranteeing an accused release from remand during
trial as long as they appear in court when required

 Accused previous record

 Relationship between the accused and the potential witnesses
 Where accused is gainfully employed
 Period accused has spent in custody
 Probable period of detention upto completion of trial
 Character of accused person
 Public order peace and security
 Flight risk
 The accused protection
 Victims protection
 Tampering with evidence
 Seriousness of offence and the severity of the sentence
 The strength of the prosecution case
Anticipatory bail

This is a type of bail paid by a person who has reasonable belief that their freedom of
liberty is about to be breached. It guarantees them freedom from arrest as long as
they cooperate with authorities

Only granted by the High Court

Must prove that their right to liberty is about to be breached and that the
apprehension is a real one.

Cert of urgency, Notice of motion and supporting affidavit

Except for identification parade, how else can an accused person be identified,

Recognition, Dock identification, DNA etc

McNaughten rule

Test for insanity - Defendant is not guilty by reason of insanity if, at the time of the
alleged criminal act, the defendant was so deranged as a result of disease of the
mind that she did not know the nature or quality of her actions or, if she knew the
nature and quality of her actions, she was so deranged that she did not know that it
was illegal

Prima facie case in civil n criminal.

In criminal it is prove that the defendant has a case to answer where theyre put on
their defence

The test what amounts to a prima facie case was established in the case of
RAMANLAL TRAMBAKLAL BHATT -VS- REPUBLIC (1957) E.A. 332 as follows:-

"(i) The onus is on the prosecution to prove its case beyond reasonable doubt and
a prima facie case is not made out if at the close of the prosecution, the case is
merely one which on full consideration might possibly be thought sufficient to
sustain a conviction.

(ii) The question whether there is a case to answer cannot depend only on
whether there is 'some' evidence irrespective of its credibility or weight sufficient to
put the accused on his defence. A mere scintilla of evidence can never be enough;
nor can any amount of worthless discredited evidence."
Burden of proof in criminal and civil

Prosecutor with exception where an accused raised a defence in law and where they
are claiming insanity

Civil cases burden is on the plaintiff/claimant

Considerations when drafting a Charge Sheet and test in Samuel Githunguri v R

● Statement of offence,

● Statement of particulars and

● Commencement (Date, OB No, police case No., or Court case No)

● Must be a crime in Kenya

● State all things that occurred in statement of particulars as set out by

complainant

What do judges do when a person accused of murder is brought before them??

● Confirming mental capacity test has been done

● If mentally fit, next step is taking plea and going on with the case

Who are the parties to a criminal proceeding?

State-

Prosecutor- Acts on behalf of the state

Complainant- sec 2 of CPC tell the court why they want to sue the accused. Identify
the accused person

Police- Art 244 and 245 investigative functions, prevent and detect crimes

Witnesses-corroborate the case of the prosecution and the complainant

Judge or magistrate- adjudicate the case by applying the law and give sentencing or
acquit based on the facts set before them

Criminal proceedings

 The complainant will approach the police or magistrates with a complaint of a

certain crime the police will record the complaint in the Occurrence Book
 The accused is then arrested, and an ID parade is conducted
  They are arraigned in court and plea taking happens they can plead guilt not
guilty
 Trial prosecutor presents their case examination happens and they rest then
there is a ruling
 Accused may be put on their defence
 After judgement mitigation before sentencing happens
 They can appeal or apply for review (new evidence has come up)

What is prosecution file/ its contents

Box or folder where papers or record are put in a particular order for ease of
reference

It includes;

I- initial Report- information gotten from the OB and complaint

D- Documentary evidence -photos maps surveillance sketches

E- Expert report-ballistics, DNA, medical reports, handwriting,

P- Prosecution witnesses and their statement- all material witness statements and
must be e

A- Accused person response under inquiry

I- Investigative diary- an account of the findings of the IO as at when he came across

such info visited and places

C- copy of the charge sheet and other docs

A- accused person’s record and property previous records of accused as well as their
property that they were arrested with

C- cover report- by investigation officer stating what they discovered and outlines
prosecution’s case as it stands

M- minutes and correspondence

Do an examination in chief of a rape victim.

Elements of rape.

Sect 3 of the sexual offenses Act;

1. Intentionally and unlawfully

 2. Penetration with his or her genital organ

3. Penetration is not consented to by the other party or

4. Consent was obtained forcefully

Identification and Recognition

Identification happens when victims / witnesses saw the commission of the crime
and the person, but they don’t know them personally while recognition is when you
personally saw the accused person

What document do you need to prove penetration in rape

Medical report

When can an arrest be made without a warrant?

1. Cognizable offence

2. Citizen arrest

Give Opening Statement in rape case

The Prosecution Side.

"Your Honour I am Mr. Canon Kings acting on behalf of the State and on the defense
is Mr. Ogara David representing the accused, Mr Ouma Ronnie. We are in court
today to charge Mr. Ouma, the accused with the offense of rape contrary to Section
3(1) of the Sexual Offences Act. Your Honour this is a case about rape. Your Honour
it is the right of each and every individual to have their dignity upheld by virtue of
them being human. It is inherent for every person to be valued, respected and
treated ethically. This transcends further to the sexuality of every individual but this
is not the case for the accused. The accused decided to utterly disregard the dignity
accorded to the victim(s) by forcefully and willingly coercing the victim(s) into
engaging in sexual activities/relations without their express and voluntary consent.
The accused failed to uphold the sexual dignity of the victim. During this trial, we
are going to paint a picture of how the violent and criminal sexual needs of the
accused were put over and above the dignity of the victim. Your Honour we are
going to probe beyond reasonable doubt that the accused is guilty of rape. To prove
this we are going to call to the stand, four witnesses. The investigation officer, Mr.
Ule Mmbaya who is the officer who arrested the accused. Secondly, Dr Amin
Madawa who is going to give medical evidence to ascertain that indeed the accused
raped the victims. We are also going to call Ms. Kizimba Terani, the ex-wife of the
accused who will portray a violent and sexually starved picture of the accused.
Lastly will be Ms. Jada Robie who is the daughter of the accused who was present in
the house where the incident occurred. The defense is going to contend that the
accused and the victim had an intimate relationship over the years. What they will
fail to tell you is that consent is very important regardless of whether there was an
intimate relationship between the two. Your Honour at the end of this case, we are
going to prove that the accused is guilty of rape hence we are seeking a conviction.
Thank You"

What is rape

Sec 3 intentional and unlawful act causing penetration of another person using
genital organs

How does one take a plea in criminal proceedings?

Plea taking in criminal proceedings is the first step before a trial begins. It is the
process by which an accused person is informed of each of the charges against them
in a language they understand and given the opportunity to respond to them, this
was stated in the case of ADEN V R

An accused person in taking plea, can choose to plead guilty, not guilty, autrefois
acquit, autrefois convict or choose to say nothing at all

A plea can also be equivocal and non-equivocal

Auterfois convict and auterfois acquit?

You have charged with the same crime and convicted by a court of competent
jurisdiction

You have been charged with the same crime and acquitted by a court of competent
jurisdiction

The doctrine of res judicata does it apply in criminal law? If yes to what extent?

By the principle of double jeopardy, which states that you cannot be charged with
the same crime, relying on the same facts if you have been acquitted or convicted
before

Nolle Prosequi
It's a Latin meaning of 'do not prosecute'. It’s a formal entry of the DPP stating that a
case or part of the case shall not proceed. It is done any time before the verdict.

It is provided in Art.157(6)(c) CoK,

S 25 DPP Act and S.82 and 87 CPC.

Reasons for Nolle Prosequi include a) insufficient evidence (b) plea negotiations.
However, the DPP must seek permission form court to discontinue-article 157(8)

What is plea bargaining

Factors to consider before granting bail

I. If the person is a flight risk

2. If the person will interfere with evidence

3. If the person will interfere with witnesses.

4. Whether the person arrested has jumped Bail before.

5. Whether the person arrested poses threats to the witnesses, whether perceived or
informed.

6. Whether the accused's safety is an issues.

7. Strength of the prosecution

Can you arrest a president for overspeeding & hitting a pedestrian?

Article 143(1) the president has immunity in criminal proceedings.

He/she is also exempted from any civil proceedings while exercising powers under
the Constitution.

Over speeding- criminal: immunity - hitting a pedestrian cannot be said to be one of

his powers so a tortious claim for damages can be instituted against him.

Article 143(4) immunity of the president shall not extend to a crime under any treaty
to which Kenya is party and which prohibits such immunity.

So, you cannot charge the president for a crime not unless the specific treaty to
which Kenya is party to prohibits such immunity.

Can you arrest a president for committing a crime under international law

Yes, Article 143(4) COK

Your client has called you and is at Langata police station. You go there. Then
proceed.

1. On client at Langata Police Station: I would on phone advise him of his right
to remain silent.

2. I would go there and introduce myself as a lawyer to the detained client and
ask to see him. Ask to see the OB and know what they being charged with

3. I would interview the client and find out the following:

a) What he is being accused of

b) What is his position/version on the matter

c) What possible evidence do they have against him

d) What exonerating evidence does he have e.g alibi

e) Possible witnesses on both sides

From this, I would have an idea of possible defences and advice on how to frame his
statement. I would then ask for police bail for him.

After that, agreement on my fee and we prepare for defence.

Way of terminating a criminal proceedings

1. Nolle prosequi- Prosecutor enters intent to prosecute or not pressure further

2. Withdraw of the case by the complaint

3. ADR

4. Accused die (abatement)

5. Incurable procedural issue, ie defective charge

What are the instances where a plea can be deferred.

Spousal rape and where it is provided for by law

The contents of a plea bargain agreement.

The Plea Agreement shall include, among others:

  The charge/s agreed between the prosecutor and the accused person.
 A statement of the facts.
 A declaration, signed by the accused person, to the effect that she accepts the
stated facts and admits she is guilty of the agreed charges.
 A declaration that the plea negotiations were entered into freely and
voluntarily.
 A recommendation on sentencing.

When can an arrest be made without a warrant?

Under s. 29 of the criminal procedure code, arrest can be made without a warrant
when;

1.A person commits breach of peace in presence of police officer

2. When a person obstruct a police in execution of his duties

3. Where a person attempts to escape lawful custody

4.A person is in possession of something suspected to be stolen

5. A person is reasonably suspected to have committed extraditable offence outside

Kenya

6. A person is reasonably suspected to be a deserter from armed forces

7. Committing a cognizable offence

8. Reasonably suspected to be subject of a warrant of arrest

What is Stare decisis

Stare decisis is a legal doctrine that obligates courts to follow historical cases when
making a ruling on a similar case. Stare decisis ensures that cases with similar
scenarios and facts are approached in the same way. Simply put, it binds courts to
follow legal precedents set by previous decisions

What are Obiter dicta

Obiter dictum (usually used in the plural, obiter dicta) is the Latin phrase meaning
"by the way",[1] that is, a remark in a judgment that is "said in passing". It is a
concept derived from English common law, whereby a judgment comprises only
two elements: ratio decidendi and obiter dicta. For the purposes of judicial
precedent, ratio decidendi is binding, whereas obiter dicta are persuasive only.
What is the principle of legality.

In criminal law means that only the law can define a crime and prescribe a penalty
(nullum crimen, nulla poena sine lege). It also embodies that the criminal law must
not be extensively interpreted to an accused′s detriment, for instance by analogy.
According to that principle, an offence must be clearly defined in the law.

Define Burden of proof and standard of proof

The McNaughten Rule (or test) was established by the English House of Lords in the
mid-19th Century and states that: “Every man is to be presumed to be sane, and ...
that to establish a defence on the ground of insanity, it must be clearly proved that,
at the time of the committing of the act, the party accused was labouring under such
a defect of reason, from disease of mind, and not to know the nature and quality of
the act he was doing; or if he did know it, that he did not know he was doing what
was wrong

Difference between Appeal, revision or Review

An appeal- is whereby an individual petition for the case to be heard in a new court.
In most cases, the case is heard on a higher court from the previous one. In simpler
terms, an unsuccessful party in a case decides to take the case to a higher court to
seek reversal of a decision made by a lower court. The party that files an appeal
believes that there were errors made either on the laws or facts raised.

Revision- Revision is the re-examination of legal actions. They may be some

assumptions made illegally, non-exercise or exercise of jurisdiction irregularly by a
lower court. In this case,, therefore, a higher court reexamines the decisions made by
a lower court to know whether all the legal actions were exercised.

What is a warrant of arrest?

A warrant of arrest may be defined as: x A legal document that authorises an arrest
to take place. x A written document by a judge or magistrate for the arrest of a
person.

1. cognizable offence” is defined under section 2 of the CPC as “an offence for
which a police officer may, in accordance with the first schedule or under any
law for the time being in force, arrest without warrant

2. difference between Recognition and Identification parade - Ajode V R

 3. Production of evidentiary evidence.

Thomas Gilbert Cholmondeley v R- burden remains with prosecution through,

marked as MFI-1

After it had been identified by the witness, and authenticated, the party will say that
they wish to tender the document as prosecution exhibit 1,2,3 or defense exhibit 1,2,3

Procedure.

1. Seek leave to tender the document, introduce the witness

2. Give document to witness,

3. ask authenticating questions, (Do you recognize the document? What is the
title of the document? Who is the document addressed to? When is the
document dated? Who has signed the document?

4. relevant questions, ask if they wish to tender as evidence,

5. Seek permission to tender the document as evidence from MFI 7 as defence

exhibit number 7

Difference between Assault and Battery

assault is an attempt or threat to injure another person, while battery is the act of
making contact with another person in a harmful or offensive manner.

Definition of amicus

An amicus curia is someone who is not a party to a case who assists a court by
offering information, expertise, or insight that has a bearing on the issues in the case.
The decision on whether to consider an amicus brief lies within the discretion of the
court.

Types of jurisdictions

Geographical, Appellate, inherent, original, unlimited and unlimited

Role of criminal law

 Deterrence

 Victims
  Rehabilitation

 Draft documents necessary

 Retribution

 Public morality and interest (Denunciation/education)

 Safety of the society.

 Case management skills to expeditious

What is judicial notice

Judicial notice is a rule in the law of evidence that allows a fact to be introduced into
evidence if the truth of that fact is so notorious or well known, or so authoritatively
attested, that it cannot reasonably be doubted. This is done upon the request of the
party seeking to rely on the fact at issue.

What is a presumption

A rule of law which permits a court to assume a fact is true until such time as there is
a preponderance (greater weight) of evidence which disproves or outweighs (rebuts)
the presumption.

Examples of presumptions-

1. Presumptions of innocence

2. Presumptions of carnal knowledge (under 7 do not have carnal knowledge)

3. Presumptions of death (no one has heard or seen for 7 yrs)

4. Presumption on marriage-Qualitative and Quantitative.

5. Presumptions of fact

Men’s rea in murder

Malice aforethought- involved intention and knowledge to cause Grievous harm or

death

Retracted and repudiated confessions

Retract is withdraw (a statement or accusation) as untrue or unjustified (Recant)

Repudiated is to refuse to accept; reject

Difference between judgment and sentencing.

What happens when a person pleads guilty.

Charge and details are read to them again,

Duress, right mind, set a hearing date for sentencing.(mitigation and victim
assessment)

What is Nolle Prosequi

A power given to the prosecutor to terminate the proceedings at any stage and as he
wishes. Sec 82 of the CPC and art 157 of the COK

What is a complaint

Complaint- sec 2 of the CPC allegations that a person has committed or is guilty of
an offence

Common law definition of complaint- A formal legal document setting out the basic
facts and legal issues that filing party believes are sufficient to support a claim
against another person or entity who complainant seeks a remedy

What is a charge

Formal written accusation of an offence, drawn by a magistrate or a police officer or

the DPP and signed as required by law. Purpose is to inform the accused what they
are being accused of

Difference between Abetment and Abate

Abate- reduce or remove (a nuisance).

Abetment-To encourage or incite another to commit a crime. This word is usually

applied to aiding in the commission of a crime. To abet another to commit a murder
is to command, procure, counsel, encourage, induce, or assist.

Equivocal and unequivocal pleas

Unequivocal-the plea as recorded must not be capable of any other interpretation
other than that of guilty.

Equivocal- An equivocal plea is one that is contradictory, where the defendant

pleads guilty, but adds something that indicates a defence.

Difference between a hostile, refractory and unfavourable witness.

Who is a child of tender years?

Under the oath and statutory declarations act, 14 years.

Children act 10 years

How do you swear a witness who is atheist?

Jurisdiction of Supreme Court in criminal matters

Matters of interpretation and public interest

Advisory opinion on criminal cases **

What is treason, elements of treason.

Treason is the crime of betraying one's country by attempting to kill the President or
overthrow the government.

Elements

1. Wrongful intent

2. Overt act either levying war against the government or giving aid

3. Owing allegiance to the government

Section 40 of the Penal Code - treason is where an individual or persons:

(a) compasses, imagines, invents, devises or intends -

(i) the death, maiming or wounding, or the imprisonment or restraint, of the

President; or

(ii) the deposing by unlawful means of the President from his position as President
or from the style, honour and name of Head of State and Commander-in-Chief of the
Armed Forces of the Republic of Kenya; or
(iii) the overthrow by unlawful means of the Government; and.

(b) expresses, utters or declares any such compassing, imaginations, inventions,

devices or intentions by publishing any printing or writing or by any overt act or
deed, is guilty of the offence of treason

Ejusdem Generis rule

A rule of construction: general words (as in a statute) that follow specific words in a
list must be construed as referring only to the types of things identified by the
specific word. For example, if a law refers to automobiles, trucks, tractors,
motorcycles, and other motor-powered vehicles, a court might use ejusdem generis
to hold that such vehicles would not include airplanes, because the list included only
land-based transportation.

What does the DCJ refusing to take plea amount to?

Deferment of plea under the law allows for the taking of plea at a later date pending
the directions and/or hearing and determination of a substantive issue affecting the
charge of the DCJ by a higher court.

What is the effect of illegally obtained evidence in that case?

Article 50(4) provides as follows:

(4) Evidence obtained in a manner that violates any right or fundamental freedom in
the Bill of Rights shall be excluded if the admission of that evidence would render
the trial unfair or would otherwise be detrimental to the administration of justice.

The DCI violated the Petitioner’s right to privacy contrary to Article 31 of the
Constitution. While this violation was not pleaded by the Petitioner, we deem it
critical to assert that in light of Article 50(4), the conduct of the DCI has irredeemably
broken the foundation on which the criminal case against the Petitioner was built,
and the Petition must, to that extent, succeed.

Whether the threats on the Deputy President’s life amount to treason

Guided by Section 40 of the Penal Code, the actus reus element of the offence, the
said treasonous act must be directed at the President. The Deputy President is not a
president and therefore this provision shall not apply to him.

Conditions in granting bail

That the accused shall always attend court mentions and hearing unless otherwise
directed by court or if indisposed must have leave of court.

That the accused shall not leave the jurisdiction of the court without leave of court

That the accused shall not interfere with evidence and or witnesses

They will not commit a crime during the pendency of the prosecution

That a default in appearance during mentions shall revert the bail amount to the
state

The accused shall comply with court directions.

Duplicity of charges on a charge sheet

A charge is a formal written accusation or complaint against a person for an offence

provided for in law. It is drawn by a magistrate or a police officer and signed as
required by law. Black’s Law Dictionary defines duplicity of charges is the joining of
two or more offenses in the same count of an indictment. It is a legal requirement
that a charge should not suffer from duplicity. Duplicity occurs where the charge or
count charges the accused of having committed two or more separate offences the
charge is barred for duplicity. Duplicity can be avoided where a statute creates
offences in the alternative, Section 86 of the Traffic Act provides for offences created
in the alternative e.g. causing death by driving a motor vehicle:

a) driving recklessly;

b) driving at high speed.

c) Driving in a manner dangerous to the public.

d) Leaving the motor vehicle on the road in a manner dangerous to the public.

All these are stated in the alternative so that you cannot be charged of two or more
but only one of the alternative.

Insanity proceedings

Insanity is any mental disorder, which is severe enough to prevent a person from
having legal capacity and excuses the person from criminal or civil liability. Insanity
arises in two instances:

 The first one is when it is alleged as a defence, that is, the person was insane
at the time of the act which now constitutes the offence.
  The second is what has been termed in other jurisdictions as procedural
insanity, that is, where the person, though sane at the time of the act, no
longer enjoys the same degree of sanity to such an extent as to render him
incapable of understanding the charge and or making his defence.

a) Procedure in insanity - sections 162-167 of the Criminal Procedure Code.

Section 162 – Court inquires as to the soundness of an accused’s mind if in the course
of a trial the accused is incapable of making his defence because of unsoundness of
mind. If so, it postpones the proceedings but where the court finds the accused fit to
continue with the trial then the proceedings will continue.

Section 163 – where the accused applies for bail, court may release him on condition
that sufficient security has been given that the accused will be cared for well and that
he will be prevented from injuring himself or any other person and that his presence
in Court shall be guaranteed. Where bail is denied due to insufficient security, the
Court may order that the accused be retained in safe custody and then transmits the
Court record or a certified copy to the Minister for the President’s consideration.

The president upon consideration may order that the accused be detained in a
mental hospital or other suitable place of custody and the court shall issue a warrant
which shall be sufficient authority for the detention of the accused till the president
makes a further order in the matter until the court which found him incapable of
making his defence orders him to be brought before it again in the manner
subscribed in Sections 163 and 164[1].

The court will make such determination through the report of a medical officer.
Where the medical officer of a mental hospital or place of custody where the accused
has been taken, finds the accused incapable of making defence, the officer is to
forthwith make a certificate to that effect to the Attorney General[2]. The AG in turn
is required to inform the court whether the state intends to continue with the
proceedings against the accused or not[3].

Where the AG indicates that he does not intend to continue with the matter, the
accused is to be discharged but that is not a bar to subsequent proceedings against
the accused on the same facts. On the other hand where the AG says otherwise, the
accused shall be brought before court and the proceedings will start anew as if the
accused was brought to court for the first time[4].

Section 164 provides that subject to the report of the medical officer, the court may
order that the accused be brought before court and where the court finds that the
accused is still incapable of making his defence then the court shall act as if the
accused was brought before it for the first time.
Section 166 is to the effect that where the court finds that the accused committed an
offence but was insane, so as not to be responsible for his acts or omissions[5], the
court is to make a special finding to that effect. The court is further required to
submit the finding to the president who will make further orders for instance the
accused to be detained in custody or in any other suitable place. It is worth to note
that the burden of proving an averment of insanity lies upon the defence because in
Section 11 of the Penal Code, every person is presumed to be of sound mind until the
contrary is proved. However, where the accused does not raise the issue of insanity,
the court will not make a finding under Section 166(1) of the Criminal Procedure
Code. However, the CPC does not outline a clear procedure to be adopted in
situations where a defendant refuses to raise and/or plead the defence of insanity.
Section 167 of the Criminal Procedure Code provides for situations where, although
the accused is not insane, but he is unable to understand proceedings in court.

Framing charges

Statement of the offence based on description of what offence has been committed.

Particulars are the words which will describe the offender and it will also briefly
describe the particulars of the offence. It will describe the property or goods which
are the subject matter. If the goods are specific, there will be a proper description of
the goods. The particulars are supposed to reveal the ingredients of the offence.

Difference between n a decree and an order

A decree is extracted from a judgment whereas an order is extracted from an interim

application

Difference between judgment and sentencing

Judgment – means the adjudication by the court that the defendant is guilty or not
guilty

Sentencing - procedure at which a court of law of competent jurisdiction makes an

order on the specific penalty to be meted out to the criminal after convicting him.

What to do if a client pleads guilty

Ascertain whether the client understands the charges made against him and advise
him on the consequences of making that kind of plea. Ascertain whether the client
based on the facts voluntarily committed the crime so as to form a strategy for his
defence.

14. The Trial process

Starts by way of a complaint. The complaint is done through the police process.
Person alleging is required to write a statement, produce witnesses, record witness
statements, if an offence has been committed police make the decision to arrest the
culprit and take him to court.

Complaint- Arrest- Charges- Plea- Trial- Judgment- Sentence

How Criminal Cases are initiated

Criminal cases are initiated by a complaint being lodged. A complaint can be lodged
with the police or the magistrates, but the proper way is with the police. It will be
recorded in the Occurrence Book in the Police Station stating who the complainant is
and what the complaint is. The decision to file a case depends on the information in
the OB, the police will take a statement from the complainant, visit the scene of the
incident, take notes of any breakages if any, if it is a murder scene, they will make
photographs of the scene and make arrangements for the body to be examined by a
pathologist. Once the police decide what kind of offence has been committed, they
draw a charge sheet.

Plea taking

The accused goes to court and the charges as laid out are read to the accused. The
charges must disclose an offence. If an offence is not disclosed the court may
discharge or a fresh complaint may be put in the court. if the charge is proper, it is
read to the accused and the accused is given an opportunity to respond. In case of
petty offences like drunk and disorderly the charges are read and the accused person
pleads. In case of serious cases if the accused person pleads guilty the court
prosecutor is required to go through the file and give evidence of what is contained
in the police file. Then the accused person is required to respond to the charge. If
they agree with the facts as set out in the prosecution file, they are convicted on their
own plea. If the accused person does not agree with certain things in the
prosecution file or dispute facts the court will enter a plea of not guilty or a plea of
pardon, autrefois acquit/convict.

What are extradition proceedings

Extradition is the return of a person who has come to Kenya after being charged
with a crime to the country he has been charged with the offence.

Deportation – the expulsion of a person out of a country

The attorney general files a miscellaneous application (through a notice of motion)

Causation in criminal law

The evidence given must be proved to have be part of the facts in issue

The cause of things or relevant facts or facts in issue will be admitted to explain the
cause of an injury

What are Id parades and how are they conducted?

Rights of an arrested persons Article 49 COK

Confessions

A confession comprises words or conduct, or a combination of words and conduct,

from which, whether taken alone or in conjunction with other facts proved, an
inference may reasonably be drawn that the person making it has committedan
offence. They are not admissible in Kenya (section 25A of Evidence Act) particularly
out of court confessions which must be recorded i n either video or audio and the
person recording must have a higher rank than Chief inspector and a third party
must be present. The accused must be issued with a certificate showing what the
accused had confessed and the court will still need the accused to confess once again

Termination of criminal proceedings

● Nolle prosequi - Section 82

● Art 157 of the COK - Where complainant withdraws the

case

● 87 of the Civil Procedure Code - Prosecution withdraws w/o relying

on nolle prosequi. They can do so in open court but the court has discretion to
approve or not

● Plea bargaining agreement between the parties but court must give approval
or disapproval

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

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

Ways of terminating a criminal proceeding.

• There are 3 ways in which criminal proceedings may be terminated:

o 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

o By reconciliation under Section 176 CPC (i.e. court encourages you to

amicably resolve the dispute); and
 o 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:

o Likelihood that the accused may fail to attend court

o Accused may commit or abet the commission of a serious offence

o Accused may endanger the safety of victims

o Accused may interfere with witnesses or evidence

o Accused may endanger national security or public safety

o 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

Elements of rape

 Section 3 of the Sexual Offences Act

o The intentional and unlawful penetration of the genital organ of a

person by another

o The absence of consent

o 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:
 o Particulars of the victim, e.g. name, age, date of birth

o Type of assault, where it occurred, if it has been reported to the police,

etc.

o Psychological assessment and medical examination

o Lab tests, samples collected and any treatment/medication given

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

o that any person within the limits of Kenya be brought up before the
court to be dealt with according to the law;

o that any person illegally or improperly detained in public or private

custody within those limits be set at liberty;

o 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;

o 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;

o any prisoner within those limits be removed from one custody to

another for the purpose of trial; and

o the body of a defendant within those limits be brought in on a return of

cepi corpus to a writ of attachment
Principles of the Adan Mohammed in plea taking.

Comes from the case of Adan v Republic [1973]

(i) 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;

(ii) The accused’s own words should be recorded and if they are in admission, a
plea of guilty should be recorded;

(iii) 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;

(iv) 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;

(v) 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

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:

o There is no provision for anticipatory bail under S. 123 of the CPC

o 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

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

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

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:

o Murder

o Treason

o Robbery with violence

o Attempted robbery with violence

o Administration of unlawful oaths to commit capital offence

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:

o Offering support and assistance to crime victims;

o Holding offenders directly accountable to the people and communities

they have violated;

o Restoring the emotional and material losses of the victims;

o Providing a range of opportunities for dialogue and problem solving

among interested crime victims;

o Offering offenders’ the opportunities for competency development and

reintegration into productive community lives; and

o 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 bail pending appeal and what are the principles?

  Principles of bail pending appeal:

o The existence of exceptional or unusual circumstances;

o The appeal is likely to be successful on a point of law or a substantial

part thereof; or

o 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:

o The character of the offender (e.g. whether the applicant for bail is a
first offender);

o Whether the offence of which the applicant is convicted involved

personal violence;

o The appeal must not be frivolous and must have a reasonable chance of
success;

o The possibility of substantial delay in the determination of the appeal;

and

o Whether the applicant complied with bail conditions granted before

the applicant’s conviction

Rights of an arrested person?

 These rights are contained under Article 49 of the Constitution

o The right to be presented before a court of law within 24 hours of

arrest;

o The right to be arraigned in court after the arrest;

o The right to be informed of the reason for the arrest or detention;

o The right to be held separately from persons serving a sentence;

o The right to remain silent;

o The right not to give a confession or make any other self-incriminating

statements;

o The right to consult an Advocate;

 o The right, at the first court appearance, to be informed of the reason for
the detention continuing or alternatively to be released; and

o 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:

o 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

o 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’

1. This contains the name of the officer opening the custody record

2. 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

3. Name and rank of the arresting officer and officer in charge of the
investigation are also noted

4. Detained person’s rights are read, recorded and interpreted, in case the
suspect does not understand the language

5. 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’

1. 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’

1. Copies of reports such as post-mortem reports, ballistic report, finger

prints, government analysts, handwriting experts and all other expert
reports

 Sub-file ‘D’

1. 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

2. Witness statements (prosecution files must have prosecution witness

statements)

3. The complainant’s statement that forms the basis of the charge

4. The arresting officer’s and investigation officer’s statements

5. As well as all expert witnesses’ statements and all material witnesses’

statements should be in the police file

6. Should include: date, time and place the statement was taken; the name
of the person, etc.

7. 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’

8. Copies of all other prosecution witnesses should then follow

 Sub-file ‘E’

1. 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’

1. 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’

1. 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)

2. 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’

1. List of witnesses, exhibits, accused’s property, accused’s criminal

record, etc.

2. 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.)

3. The criminal record of the accused will be important at mitigation

(especially of the accused is acquitted)

 Sub-file ‘I’

1. 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

2. 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)
 3. The officer will explain why the accused person should be charged
with [x] offence

 Sub-file ‘J’

1. On the left-hand side of the police file cover, a correspondence sub-file

will be kept

2. This sub-file deals with requests for advice from the Investigating
Officer to the Officer in Charge or any other correspondence on the
matter

3. 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

4. The sub-file also contains instructions from gazetted officers/state

counsels to IOs

5. 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 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

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:

o The accused person has been charged in court; and

o 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 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:

o Commencement: basic details, e.g. police case number, OB number,

court file number, surname/father’s name, age, address, etc.

o 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

o 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 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:

o As a defence  person was insane at the time of committing the

offence

o 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 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

o If he pleads not guilty, the matter proceeds to trial

o 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 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

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:

o Re-evaluation of evidence

o Emergence of new evidence

o Failure of witnesses to cooperate

o Desire to give the defendant a second chance

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

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:

o Reliability of manner in which the evidence was generated, stored or

communicated;

o Reliability of the manner in which the integrity of the evidence was

maintained;

o Manner in which originator of electronic evidence was identified; and

o Any other relevant factor.

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:

o The individual suffers from a defect of reason;

o The defect of reason was caused by a disease of the mind;

o 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

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:

o Why was he arrested, was it a lawful arrest?

o Was there a warrant for his arrest?

o Were his rights read out to him?

o Is he eligible for bail?

o Find out when he is due to appear in court on the charges against him

o Find out details of the charges levied against him

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

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:

o It has been obtained by oppression, i.e. torture, inhumane or degrading

treatment, the use or threat of violence, etc.

o It has been made in consequence of things said or done that might

render it unreliable

o 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

o 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
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 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

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 Admission of a fact which may be used

acknowledgement of guilt as incriminating evidence

A confession is made by the accused An admission usually relates to civil

person which is sought to be proved in matters and comprises all statements
the Court of Law amounting to admissions

A confession is considered conclusive Admissions are considered substantive

proof evidence, but are not conclusive proof
of the matters admitted

Confessions made by one or more Admissions by one of the several

accused jointly may be used as evidence defendants cannot operate as evidence
against a co-accused 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:

o 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

o Upon conclusion, a written report with the verdict of the inquest is

prepared

o The report includes classification of the death and whenever possible,

recommendations to the jury on how to prevent a similar death

 Public inquiry:
 o A public inquiry is allowed to make findings of misconduct against
individuals

o 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

o 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 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

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:

o 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
 o 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 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:

o 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.

o 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

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:

o Either the prosecution has withdrawn their case; or

o The DPP has withdrawn the case

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

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 Is a state official who is supposed to be a

Government and he shall represent the completely independent and does not
National Government in any legal require consent of any person for the
proceedings save for criminal commencement of criminal proceedings
proceedings

Under the control of and derives Not under the control of any person or
authority from the National authority
Government

Nominated, and with the approval of Nominated, and with the approval of
the National Assembly, shall be the National Assembly, shall be
appointed by the President appointed by the President

Mainly deals with civil disputes Mainly concerned with criminal

disputes

How to commence a criminal and civil suit.

  Criminal suits:

o Complaint to the police;

o The police ascertain whether there is a legitimate offence that has been
committed;

o 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;

o An application is made for a warrant of arrest;

o The individual is arrested and brought into custody;

o The person is then presented in court within 24 hours;

o The charge is read to the accused and the plea taking process begins.

 Civil suits:

o File your pliant/memorandum of claim + supporting affidavit + list of

documents + documents + list of witnesses + witness statement in court

o 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

Distinguish between assault and battery.

 Battery: intentional application of unlawful force upon another person

o 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
 o Any unwanted physical contact amounts to battery – a pat on the back,
a practical joke, an unwanted kiss, etc.

o 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

o 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

o Assault lies not in physical contact, but in the anticipation of such

contact

o Assault will almost always be followed by battery (unless third party

intervenes, defendant misses the target, defendant changes their mind,
etc)

o 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

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:

o 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
 o 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

o 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

Explain the defence of necessity in murder cases.

 The elements of the defence of necessity are:

o The act is needed to avoid inevitable and irreparable evil;

o No more should be done than is reasonably necessary for the purpose

to be achieved; and

o 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:

o 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

o The courts are looking for a person who knows what they are doing,
but has severely impaired powers to restrain themselves from acting

o Qualifying trigger includes: fear of serious violence, an extremely

provocative act, or a combination of both

o The loss of self-control can root from grief, despair, moral outrage or
even depression

 Diminished responsibility:
 o 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

o 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’

o 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:

o The court may adjourn the case for any period not exceeding 8 days

o In the meantime, the refractory witness may be committed to prison

unless he sooner consents to do what is required of him

o 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
 o 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:

o Plea of not guilty

o Plea of guilty (accept the charge)

o 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?

o The previous constitution gave the DPP absolute powers, e.g. could
walk into any court at any time and withdraw any charge

o 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 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:

o The prosecution reads the facts of the offence to the accused

o The accused is then given a chance to deny, accept or explain the facts

o 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

o 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:

(i) Ensure that the witness is sufficiently introduced:

o For ordinary witnesses of fact, it is enough to ask their name, what they
do, etc.

o 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

o Expertise can be acquired by formal learning or experience, or both,

formal education and experience

o 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

o 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

(ii) Establish the connection between the expert witness and the case at hand:

o 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?

o 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

(iii) Elicit the expert opinion:

o What were the findings/observations/conclusions of the expert? What

is the expert opinion of the witness about the subject matter?

o E.g. if the witness examined the patient, what were the professional
findings of the doctor?

(iv) 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:

o Must be in simple lay-man terms because the court is not itself

necessarily an expert in the said field

o Many experts have a predilection for using complicated language

o 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
LPM
What are the 5 phases involved in emergency situations?

(i) Prevention -

(ii) Preparedness - this is a continuous cycle of planning, organising training on

activities on response to disaster

Response -It includes mobilisation of necessary emergency services and

respond to the disaster

(iii) Recovery - The aim is to recover and restore the affected area to its
previous state.

(iv) Mitigation - Efforts taken to prevent hazards from developing into

disasters

What is the disaster management cycle? Explain each cycle.

Disaster prevention measures

Four forms of discrimination

• Direct discrimination

• Indirect discrimination

• Multiple discrimination

• Equal opportunity and differential treatment.

What is sexual harassment, forms of it and causes?

The term sexual harassment describes unwelcome sexual advances, requests for
sexual favours, and other verbal or physical conduct of a sexual nature. The conduct
is made as a term or condition of an individual's employment with implied or
express promises of preferential treatment, threat of detrimental treatment or threat
about the present or future employment status.

Forms of sexual harassment include

• Language of a sexual nature (written or spoken)

 • Use of visual material of a sexual nature.

• Use of visual material of sexual nature.

• Show of sexual behaviour of a sexual nature.

Section 6 Employment Act

Causes of sexual harassment

• Reliance on supervisors for career success / progression.

• Abuse of authority

• Poor management

• Job instability

• Personal problems such as divorce, separation etc.

7 Cs of effective communication?

 Clear
 Concise
 Concrete
 Correct
 Coherent
 Complete
 Courteous

What provision of Occupational Health and Safety Act talks on safety and
security?

Section 74 of the Occupational Health and Safety Act provides for safety with regard
to storage. In summary that section states how goods should be stored in a work
place.

The goods are to be stored in such a manner that will ensure their stability and
prevent any fall or collapse of the stack.

The goods should be stored in such a manner that as not to interfere with the
adequate distribution of natural and artificial light, natural ventilation systems and
the proper operation of machines or other equipment, the goods should be stored in
such a way that they do not obstruct passage ways, gang ways or traffic lanes and
the efficient functioning of the sprinkler system, the goods should not obstruct the
fire extinguishing systems within the work place.

It also provides that no goods shall be stack against wall or partition, unless the wall
or partition can withstand the pressure of the goods.

The above relates to our field in terms of how we arrange our files, furniture and
electronics in the law firms.

Factors to consider when choosing an office layout

Explain the procurement process

Procurement is the act of obtaining or acquiring goods and services by an institution.

The procurement cycle entails the following:

1. Identification of a requirement or need in the organization.

2. A plan is put in place emphasizing how to obtain the specific need.

3. The organization involved then checks on the availability of funds before

proceeding to check the sourcing options.

4. Checking the sourcing options.

5. 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)

6. The organization receives and opens the bids.

7. Evaluating the bids using a checklist and carry out eliminations. (The vendor
identified and a report on the same is put down)

8. The vendor is then notified of the contract award.

9. 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)

10. Administration of the contract (delivery of goods)

11. Inspection of purchases (could result to acceptance or rejection of goods

depending on whether the products conform to the prescribed order)
 12. Issuance of an invoice (which as a receiving document that indicates
completion of contract)

13. 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.

Centralized office all services are done at the designated

Centralized.

Advantages

1. Smooth flow of work and easy supervision since staff sit in a pool.

2. Work for absent staff is easily distributed to the pool of staff.

3. Equal distribution of work at the pool

4. Fewer workers thus cost effective.

5. Uniformity of work.

6. Encourages specialization - efficiency of qualified people

7. No duplication of work.

8. Easy training of new staff by the pool staff.

9. Flexibility on job since staff are rotated to do various jobs in the department.

10. Better control of office resources and records due to close monitoring.

Disadvantages
1. Too much movement to the department from other departments in relation to the
centralized work.

2. Boredom and monotony of work.

3. Uniform procedures encourages lack of flexibility in the work is done.

4. High no. of messengers needed distribute work to the user offices

5. It takes long to retrieve documents from a central office.

6. High probability of misplacing documents due to high volume of records.

7. There is no accountability in case of mistake.

8. High risk of loss in case of a disaster like fire.

9. Lack of exposure to other departments and senior executive and may hinder
growth

Decentralized

Advantages

1. More accountable to mistakes.

2. Suitable for confidential work.

3. Improves the person's contact with staff of other departments and the executive
increasing chances of growth.

4. There is spreading of risk should a disaster strike

5. Opportunity to learn new talents because staff have different tasks.

6. Few messengers required since no work needs to be distributed.

7. Minimizes movement of staff going other departments

8. It reduces boredom and monotony of work due to a variety of tasks.

Disadvantages

1. Duplication of work.

2. Lack of flexibility in job rotation

3. Unequal distribution of work leading to increase over time costs.

4. Difficult to train new staff.

5. Difficult to handle absenteeism

6. Difficult to supervise since each worker has different tasks

7. Hinders specialization.

8. Lack of uniformity of work hinders efficiency.

9. Uneconomical in staffing since every office will need e.g. a clerk, typist.

How ICT has enhanced Advocates work in the firm

Persons in s. 29 of LSA

Distinguishing element in s. 29

If a step-child can class from the estate of the deceased

What is a privileged will

Policies in a law firm

What are 3 main financial accounting statements

 Balance sheets
 Income statements
 Cash flow statements.

What are the 5 phases involved in emergency situations?

 Prevention -
 Preparedness - this is a continuous cycle of planning, organising training on
activities on response to disaster
 Response -It includes mobilisation of necessary emergency services and
respond to the disaster
 Recovery - The ai is to recover and restore the affected area to its previous
state.
 Mitigation - Efforts taken to prevent hazards from developing into disasters

What is the disaster management cycle?

Disaster prevention measures

Four forms of discrimination

 Direct discrimination
Indirect discrimination
Multiple discrimination
Equal opportunity and differential treatment.

What is sexual harassment, forms of it and causes?

The term sexual harassment describes unwelcome sexual advances, requests for
sexual favours, and other verbal or physical conduct of a sexual nature. The conduct
is made as a term or condition of an individual's employment with implied or
express promises of preferential treatment, threat of detrimental treatment or threat
about the present or future employment status.

Forms of sexual harassment include

• Language of a sexual nature (written or spoken)

• Use of visual material of a sexual nature.
• Use of visual material of sexual nature.
• Show of sexual behaviour of a sexual nature.

Section 6 Employment Act

Causes of sexual harassment:

• Reliance on supervisors for career success / progression.

• Abuse of authority
• Poor management
• Job instability
• Personal problems such as divorce, separation etc.

Types of office layouts

What law provides for a sexual harassment policy within an organization

Factors to consider in setting up an office.

Which position deals with managerial functions in an office

Functions of a managing partner

How ICT has enhanced Advocates work in the firm

The 4Ps in a meeting

 Person- who is running meeting and who needs to be involved

 Purpose- reasons for working on each issue
 Process- what teamwork process will be used
 Product- what do we hope to achieve

How ICT has enhanced Advocates work in the firm

 Ease of issuing summons--WhatsApp, emails, sms

 Correspondence-ibid
 Case management
 Research
 Tickler systems
 Billing systems

Types of office layouts

1. Open plan- open & free of any partitioning

Advantages

 max utilization of space

 effective internal com
 easy to set up

Disadvantages

 increased level of noise

 lack of privacy

2. Closed plan- subdivided into small rooms

Advantages

 private and confidential

 Noise reduction
 Prestigious

Disadvantages

 Not flexible for modification E.g. concrete parti

 Hinders effective internal com
 Expensive to set up
 3. Landscaped layout- green plants & flowers to reduce office expenses

Advantages

 pleasing you the eyes

 Tidy
 Motivates

Disadvantages

 Expensive
 Occupies lots of space
 Distraction

4. Workstation layout- small working stations

Advantages

 easy supervision
 security
 Easy com

Disadvantages

 lack privacy
 Noisy
 expensive to maintain

5. Modified layout- +open & + close (closed but glass

Advantages

 security
 Reduced noise
 healthy

Disadvantages

 expensive
 Increases movement

What law provides for a sexual harassment policy within an organization

Employment act section 6 - 20 or more employees you must have a policy

Factors to consider in setting up an office.

Possible Expansion, safety of location, accessibility for both clients and workers

My friend and I want to open a law firm, what would go in the business plan?

1. Executive summary i.e., mission, vision etc

2. Description of the company- Name of firm. Services of your firm

3. Organisation and management

4. Service line i.e. Litigation, ADR etc.

Difference between retrenchment and layoff

The biggest difference between layoff and retrenchment is that a layoff is volatile in
nature. In layoffs, employees will be recalled once the layoff period ends. On the
other hand, retrenchment is non-volatile in nature and involves the full and final
termination of services.

A layoff does not involve the termination of the employment agreement, since it
refers to a temporary situation where an employee on a particular type of contract
does not receive paid work for a period of time. The employee stays an employee but
is not receiving work that would entitle them to get paid.

What does the employment act say on sexual harassment

Remedies of a dismissed worker

Rights of workers under article 41 of the Constitution and the Employment Act

Principles of management

Which position deals with managerial functions in an office

Office Manager; Management position

Roles of a managing partner

 Run day to day affairs of the office

 Organizing work by preparing timetables and duty rosters.
 Controlling his departments by setting up an internal control system.
 Creating a conducive work environment e.g. safety and security.
 Staffing: Ensures his department has qualified staff.
 Planning - He plans for the department by preparing budgets and new
systems for doing work.
  Coordinating

Name the 4 types of resources in a firm

 Human resource
 Raw Materials
 Equipment
 Finances

Functions of Human Resource Management

Managerial

Planning

Organising

Directing Controlling

Operative

Procurement

Development

Compensation

Maintenance

Legal framework of Human Resources

Art 41 of the COK

Employment Act

The Constitution of Kenya, 2010 establishes several commissions and offices charged
with human resource planning.

The President is under Article 132 (2) charged with nominating and appointing
Cabinet Secretaries, Attorney General, Secretary to the Cabinet, Principal Secretaries,
etc.

Judicial Service Commission recommends to the president persons to be appointed

as Judges and reviews their conditions of service, receives complaints, disciplines
and removes from office judicial officers.
Public Service Commission: Reviews conditions of service of public officers, etc.

Teachers Service Commission: It recruits teachers.

County Service Public Boards: They work under the County Government Act

What is the importance of a front office department?

Communication between clients and the organization

It processes special requests.

It offers advice to clients on products and services offered.

It receives customer complaints.

It maintains the professional outlook of an organization.

It helps in filing, photocopying and receiving faxes and calls.

It guides guests around the offices and the use of other facilities.

It filters the people walking in.

What are the front office challenges?

Lack of staff motivation working at the front office

Disorganization. It is one of the noisiest areas and not properly organized.

Front office staff may not understand clients.

Technological setbacks

Managing calls. Sometimes, clients phone call are not picked leading to
dissatisfaction.

Solutions

Training staff on technology

Providing incentives

Promoting professionalism

Uncovering weaknesses of employees

Promoting innovations

Difference between training, development and education

Development is a continuous process- learning new skills

Education is not specific, you get a basic foundation

Training - you learn a specific issue

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)

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)

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

Roles 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

Characteristics of a sound human resource policy?

 A sound HR policy should be:

o Definite, clear and understood by everyone;

o In writing;

o Consistent with the overall philosophy and objectives of the

organisation;

o Reasonably stable but not rigid, i.e. it should be flexible;

o Formulated with due regard for the interests of all the concerned
parties – the employers, the employees and the public community;

o Developed with the active participation and support from

management and employees;
 o Consistent with public policy;

o 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:

o Clear chain of command

o Focused vision (helpful for multinational organisations)

o Quality control

o 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

Ways 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 outsourcing).

 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
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

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

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

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.

 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:

o 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.

o When needed for future reference

o If a matter may possibly be appealed then you need all lower court
records

o Capacity of duplicating the documents, i.e. can you make soft copies of
the documents and store them online?

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:

o Declaratory order that companies' practices are racially motivated

o Damages for harm suffered as a result of the racial discrimination

o Order of mandamus, ordering the company to take steps to alleviate

the racial discrimination in the company, e.g. employ new hiring
practices

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 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

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:

o Use or display of pictures, calendars and posters of a sexual nature at

desks, bulletin boards, and other work areas

o Making careless jokes or comments of a sexual nature

o 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

 o Bar/poor socialisation

o 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

o Absence/declining morals, norms, values and cultures (rising moral

decadence)

o Victim blame tendency by society

o Aggressive group think phenomenon (group (mob) justice)

o Absence of policy, standards and procedures

What provisions of the Occupational Health and Safety Act have been implemented
in the workplace?

 S. 74 of the OHSA provides for safety with regards to storage. Goods should
be stored in a manner such that:

o Will ensure their stability and prevent any fall or collapse of the stack

o Will not interfere with the distribution of natural or artificial light,

natural ventilation systems and the proper operation of machines/other
equipment

o Will not obstruct traffic ways, gang ways or traffic lanes

o 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:

(i) Identification of a requirement or need in the organization

(ii) 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

(iii) Checking the sourcing options

(iv) 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

(v) The organisation receives and opens the bids

(vi) Evaluating the bids using a checklist and carry out eliminations  The
vendor is identified and a report on the same is put down

(vii) The vendor is then notified of the contract award

(viii) 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

(ix) Administration of the contract (delivery of goods)

(x) Inspection of purchases (could result to acceptance or rejection of

goods depending on whether the products conform to the prescribed
order)

(xi) Issuance of an invoice (which as a receiving document that indicates

completion of contract)

(xii) Storing and management of goods

 All this is subject to the Public Procurement and Asset Disposal Act

Advantages and disadvantages of centralised and decentralised office functions.

Advantages of a centralised office system:

(i) Saving of costs of equipment and electricity

(ii) This layout enables the office to save space

(iii) Encourages communication between employees

(iv) Provides a sense of community between the employees

 (v) Smooth flow of work and easy supervision since staff sit in a pool

(vi) Work for absent staff is easily distributed to the pool of staff

(vii) Equal distribution of work at the pool

(viii) Fewer workers thus cost effective

(ix) Uniformity of work

(x) Encourages specialization - efficiency of qualified people

(xi) No duplication of work

(xii) Easy training of new staff by the pool staff

(xiii) Flexibility on job since staff are rotated to do various jobs in the department

(xiv) Better control of office resources and records due to close monitoring

Disadvantages of a centralised office system:

(i) lack of privacy

(ii) Lack of confidentiality

(iii) It could be noisy

(iv) Too much movement to the department from other departments in relation
to the centralized work

(v) Boredom and monotony of work

(vi) Uniform procedures encourage lack of flexibility if the work is done

(vii) High number of messengers needed distribute work to the user offices

(viii) It takes long to retrieve documents from a central office

(ix) High probability of misplacing documents due to high volume of records

(x) There is no accountability in case of mistake

(xi) High risk of loss in case of a disaster like fire

(xii) Lack of exposure to other departments and senior executive and may
hinder growth

Advantages of decentralised office system:

(i) Saves time

(ii) Less noise

 (iii) Unique requirements of a specific unit are catered for

(iv) More accountable for mistakes

(v) Suitable for confidential work

(vi) Improves the person's contact with staff of other departments and the
executive increasing chances of growth

(vii) There is spreading of risk should a disaster strike

(viii) Opportunity to learn new talents because staff have different tasks.

(ix) Few messengers required since no work needs to be distributed

(x) Minimizes movement of staff going other departments

(xi) It reduces boredom and monotony of work due to a variety of tasks

Disadvantages of a decentralised office system:

(i) Expensive

(ii) There is no outflow of information from one department to another

Centralized office all services are done at a designated point functions Merits

(iii) Duplication of work

(iv) Lack of flexibility in job rotation

(v) Unequal distribution of work leading to increased over time costs

(vi) Difficult to train new staff

(vii) Difficult to handle absenteeism

(viii) Difficult to supervise since each worker has different tasks

(ix) Hinders specialization

(x) Lack of uniformity of work hinders efficiency

(xi) Uneconomical in staffing since every office will need e.g. a clerk, typist

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.
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
LWD
1. What are doublets and triplets in legal drafting
2. Justice Mabea’s talk on how to structure good arguments
3. Contents of a letter
4. Concerns of a legal drafter

5. Demand letter

Contents

 Name and address of the advocate, client and recipient

 Facts of the case
 Act/breach committed
 Demand
 Damages sought
 Threat/consequences of not heading to the demand

Format of a legal opinion

When drafting a document, what do you look at?

Apart from legalese what other forms of legal writing are discouraged.

Difference between Statutory Declaration and Affidavit.

Laws governing Statutory Declarations.

Active and Passive Voice (Explain instances for use of each and illustrate with
examples).

What is the basis of plain English

Explain the plain English revolutionary movement

Name three importance of assisted investigation field notes

What are transitions?

Words or phrases that state the relationship between ideas in writing. Link two or
more clauses to make the idea whole. Without transitions the reader will be

Generic- most commonly used in all kinds of writing. Contrast comparison cause
and effect addition emphasis evaluation, sequence and conclusion

Factors to consider- what is obvious to you is not obvious to everyone

 - Don't use too many unnecessary ones

- Pick transition that best describes the idea

Orienting- provide a context for the information that follows transition allows reader
to be located physically. Most common are those of dates location identification of
statute or case and the source of statement

Substantive- can be compared to interlocking links of a chain ad add substance or

content and aid transitioning from one point to the next. Purpose is to make
connection and provide content. To achieve this you apply dovetailing (provides the
connection between old and new information.

Contents of a letter

 Letterhead
 Date
 Recipients address
 Salutation
 Reference or subject
 Body (Intro - body - conclusion)
 Sign off sincerely (familiar) faithfully(formal)

Which doc to swear for change of name

Deed poll accompanied by statutory declaration

Differences between a thesis paragraph and thesis statement

Difference between active and passive voice.

Active voice means that a sentence has a subject that acts upon its verb. Passive voice
means that a subject is a recipient of a verb’s action.

Circumstances where you use passive voice

Subject not known

Not relevant or important

Hide the identity of the subject

Reported speech

Action being emphasized rather than the doer

What is a demand letter?

Rooted under order 3

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”

o It is more concise

o It uses a more vigorous verb

o It allows information to be processed more easily

o It emphasises who or what is responsible for committing an act

o 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”

o When the person or thing performing the action is unknown or

relatively unimportant

o When you do not want to emphasise who did the act

When it is the act and not the actor which is important

Probate
Explain the meaning of propounding a will

Propounding will means to take legal action to have it authenticated as part of

probate, it includes a formal inspection of the will by the court.

How do you institute divorce proceedings

• File a petition to court outlining the grounds under which you're asking for a
divorce.

• Petition should be made at least one year after celebration of the marriage.

• Petition should be accompanied by a verifying affidavit, notice to appear

(which should state that appearance is to be made within 15 days)
acknowledgment of service, list of witnesses, witness statements & list of
documents.

• After filing in court, you need to serve the respondent.

• Petition should be accompanied by notice to appear & acknowledgment of

• Service

• After respondent responds, petition takes effect.

• Process of serving respondent should be done by a court server to respondent

in person.

Through filing a petition to court for a decree of dissolution of the marriage. It has to
be on the following grounds

Adultery

Cruelty

Exceptional depravity

Desertion for at least three years

Irretrievable breakdown of the marriage

Who are dependants in the law of succession?

Dependants are defined by Section 29 of the Law of Succession Act. They are

(a) the wife or wives, or former wife or wives, and the children of the deceased
whether or not maintained by the deceased immediately prior to his death;

(b) such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-

children, children whom the deceased had taken into his family as his own, brothers
and sisters, and half-brothers and half-sisters, as were being maintained by the
deceased immediately prior to his death; and

(c) where the deceased was a woman, her husband if he was being maintained by
her immediately prior to the date of her death.

Does the fact that a husband has to prove maintenance amount to discrimination?

Yes. Because it purports to not treat the man and woman as equal for purposes of
succession in light of the spirit of equality espoused in the constitution.

How can a person who is dead control his property from the grave

Any landmark family decision i know

Develop theme for SM Otieno case

What was the last thing you did in probate?

Scenario on section 3(5)

What to do when your client asks you to draft a will for them

Deed poll

Elements of a will (case scenario)

Who is an administrator, executor and trustee and how are they appointed?

Executor - personal representative appointed under a will to distribute the property

of the testator according to the will. Section 6 of the law of succession Act provides
that the testator may appoint the executors by will.

Administrator - a person appointed by the court in cases of intestacy and where

there is no proven executor in testate succession.

Trustee – Two types

1) Holds property on behalf of the minor

2) an office in the AG's chambers which is designed to administer the estates of those
persons who have appointed it to do so or those who have failed to appoint anyone
at all.

Procedure of resealing a grant

Resealing a grant by a Kenyan - If it’s a Kenyan who dies abroad, his domicile
determines where he should apply for a grant. But if he generally resides in Kenya,
then the grant would be applied for in Kenya.

Commonwealth 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.

If it’s a foreigner who dies abroad but his property is in Kenya, a grant is applied in
his country of domicile and filed in the High Court of Kenya for resealing. It must be
a certified copy of the grant issued by foreign country. The grant from the 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. The
forms required are: Form P&A 81 or P &A 83- petition). Form
P&A 7- Affidavit…

Application should be made in accordance to s 77 of the Act and Rule 42 of the

Probate and Administration Rules of 1980

A person should make an application either in person or through his attorney

(empowered in writing to act on his behalf)

Such application should be made in High Court by way of petition by form 81 or 82

supported by an affidavit by 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.
One should then file together with the application; a certificate from the Estate Duty
Commissioner evidencing either the payment of all estate duty payable to him or
that they will be paid or that no such duty is payable.

True copies of the grant or power of attorney,

Unless the registrar otherwise directs, a full inventory of the assets and liabilities of
the estate of the deceased in Kenya,

Evidence of domicile of the deceased and proof of death as may be required.

A notice will be published in Kenya gazette inviting objections within a (period of

not less than 30 days as specified in notice)

Where there is no such objection the Court will order for sealing.

Procedure:

Application should be made in accordance to s 77 of the Act and Rule 42 of the

Probate and Administration Rules of 1980

A person should make an application either in person or through his attorney

(empowered in writing to act on his behalf)

Such application should be made in High Court by way of petition by form 81 or 82

supported by an affidavit by 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.

One should then file together with the application; a certificate from the Estate Duty
Commissioner evidencing either the payment of all estate duty payable to him or
that they will be paid or that no such duty is payable.

True copies of the grant or power of attorney,

Unless the registrar otherwise directs, a full inventory of the assets and liabilities of
the estate of the deceased in Kenya,

Evidence of domicile of the deceased and proof of death as may be required.

A notice will be published in Kenya gazette inviting objections within a (period of

not less than 30 days as specified in notice)

Where there is no such objection the Court will order for sealing.
Types of grants
a) Grant of probate – made in respect to all the property to which the will
provides

b) Grant of letters of administration :-

i. Grant Of Letters Of Administration With Will Annexed - made in
circumstances where either:-
 the deceased left a valid will, but there is no proving executor, i.e the will
does not appoint an executor(s) or
 the executor(s) appointed has pre-deceased the testator or the executor(s) has
renounced executorship or
 the executor(s) appointed has been cited to take out a grant of probate and has
failed to do so (S 63 the LSA).

Made to the following: -

 The universal or residuary legatee, (person entitled to the remainder of the
estate after payment of debts/liabilities and distribution),
 A personal representative of the residuary legatee,
 The person or persons entitled to the administration of the estate of the
deceased if he had died intestate,
 The public trustee,
 Any other legatee and creditors

ii. Grants of Simple Administration –

 the deceased dies totally intestate or
 where his will is invalidated and
 where intestacy is partial, it will be made in respect of property that is not
dealt with under the deceased’s will. Made in order of affiliation to the
deceased

Limited Grants
(a) Grants Limited as to purpose
(i) Grant ad colligenda bona (S 67 LSA) – limited to the purpose of collection and
preservation of the assets, applies to assets likely to be wasted before getting a full
grant e.g. perishable goods. A full grant takes about 2 months and within that time
assets may be wasted.
(ii) Grant ad litem – issued for purpose of commencing/defending legal proceedings
where the estate is a party to the suit (paragraph 15 of the 5th Schedule to the LSA)
(iii) Grant pendente lite - is granted where there is a pending suit relating to the
estate. Such grant is issued so that the estate is administered during the dispute or
pendency of suit. It is limited to the duration of the pendency of the suit.
(iv) Grant de bonis non administrates – issued to administer an unadministered part
of the estate or where estate is incomplete or partially administered because the
administrator has left the jurisdiction, died or abandoned his administrative
responsibilities
(v) Cessate grant – issues where the original grant was limited as to time and that
period has now expired leaving administration of the estate incomplete.
(vi) Temporary grant by a resident magistrate (S 49) – issued by the resident
magistrate. Similar grant to the ad colligenda bona except that in addition to
collection and preservation of assets, the holder has authority to pay debts.

(b) Grants Limited as to property - Under paragraph 13 of the 5th Schedule.

It may be granted where a testator appoints executors only for certain assets in a
specified area e.g. an executor for Mombasa property and another for Kisumu
property. Also applies to where deceased is domiciled elsewhere but has property in
Kenya. Grant will be limited to his property in Kenya.

(c) Grants Limited as to time - Paragraphs 1 to 10 of the 5th Schedule, and S 49 of the
Act.
(i) Grant durante aetate minore - taken out where either the executors or the
administrators are minors and as such they are not entitled to a grant in their own
right The grant automatically expires when the minor reaches 18 years old, unless
some other time is specified by the court.
(ii) Grant durante absentia - Where the personal representative is outside the
jurisdiction, the court may grant representation to another person limited to the
duration of the absence of the personal representative (paragraphs 4, 5 and 6 of the
5th Schedule).
(iii) Grant where will is unavailable - Where the deceased had made a will, but the
same is lost, misplaced or unavailable a limited grant may be given until the original
or more authentic copy is found or availed
(iv) Administration for use and benefit of a person of unsound mind - Where the
person who would be solely entitled to the estate of the intestate is mentally
incapacitated, Grant limited to duration of disability.
(v) Temporary grant limited to collection of assets and payment of debts - This is
provided for under S 49 of the LSA and rule 37 of the P & A Rules. It is related to the
grant ad colligenda bona, the only difference between them being that the limited
grant under S 49 goes beyond collection of assets to cover payment of debts. It is
made pending the making of a full grant.
(vi) Special limited grant LN No. 39 of 2002 –made in special circumstances where
the urgency of the matter is so great that the court cannot make a full grant within
sufficient time.

Foreign Grants - If the deceased has movable assets outside Kenya, it is necessary to
obtain in that country a separate grant that fulfils the probate requirements of that
country. For real (immovable) property only the law of Kenya will apply. S 4(1)(b)
provides that succession to the movable property of a deceased person, wherever
situated, shall be regulated by the law of the country of the domicile of the
person at the time of his death

Relation of criminal law to probate

 The importance of the existence of the two elements of a crime
incases of murder. A person who murders another cannot benefit
from the property of the person he has murdered. The murderer is
treated as though he died before the deceased.
 Intermeddling with the property of a deceased is a crime.

Who is an executor

 Person appointed by the testator under his will to administrate his peoperty
and distribute it among his beneficiaries. He derives his authority from the
will. The executor applies for the grant of probate and another other
necessary grant.

How to deal with an estate of a person who has died intestate

Section 35 governs the monogamous situation where the couple has children. In
such cases the surviving spouse is entitled to the personal and household effects of
the deceased absolutely with a life interest on the whole residue of the net intestate
Estate.

Section 36 where the deceased has left one surviving spouse but no child or children.
The surviving spouse is entitled out of the net intestate to the following:
1. To the personal and household effects of the deceased absolutely;
2. To the first Kenya Shillings 10,000/- out of the residue of the net intestate
Estate; or 20% of the residue of the net of the intestate Estate whichever is
greater;
3. A life interest in the whole of the remainder i.e. over the 80% of the
residue,
Section 38 deals with the situation where the intestate has left a surviving
child or children but no spouse. In such circumstances the net intestate
devolves upon the child or children.

Section 39 is about where the intestate leaves no surviving spouse or children either
because he/she never got married or they predeceased her, the property should
devolve upon the kindred of the intestate or blood relatives of the deceased in the
following order of priority;
Section 40 - This provides for division of the property of an intestate where the
deceased is a polygamist. The Estate of such a deceased person should be divided as
follows:
1. His personal and household effects and residue of the Estate should in the
first place be divided among the houses according to the number of
children in each house;
2. The Estate is divided in accordance to the number of children in each
house.

If the testator makes an oral will because he fears he’ll die of cancer n two weeks
later he’s involved in an accident and dies is it an oral will
Section 5 a testator has testamentary freedom. Section 8 a will may be oral
or written. Section 9 an oral will is valid if made in the presence of two
witnesses and the testator dies within 3months after making the oral will

Gift inter vivo and donatio mortis causa

Gift inter vivo means that the transfer of the property becomes operative
during the lifetime of the donor whereas a donatio mortis causa is a gift
made in contemplation of the death of the donor and it passes to the donee
after the death of the donor. It resembles a gift inter vivo in that it takes
effect when the delivery takes place but it only becomes absolute if the
donor dies

How is a will revoked

Section 5 of LSA provides that a person has testamentary freedom to make
a will. Section 8 a will may either be oral or written. If oral there should at
least two witnesses and the testator dies within 3months of making the
will(section 9 &10). If written it should be executed and attested to. A will
may be revoked section 17. Section 18 it may be revoked by :- total
destruction ie tearing or burning; by marriage unless it was contemplated;
by writing another will or codicil; where the will is lost without trace

How do you relate revocation by destruction to the law of evidence

Where the will is being contested upon and it has been destroyed by
destruction the rules of evidence demand that for the revocation to be
valid two things must be proved. That the testator had the intention the
actual destruction of the will and an intention to revoke the will. Both
elements must be present. The actual destruction must be by burning,
tearing or otherwise destroying the will.

Ejusdem generis rule

Who is an administrator, executor and trustee and how are they appointed
Executor – A personal representative appointed under a will to distribute
the property of a dead person according to the terms of the will. Section 6
of the Law of Succession Act provides that a testator may appoint his
executor or executors by will

Administrator – A person appointed by the court in case of intestacy, and

in testate cases where there is no proven executor
Public Trustee – An office in the Attorney-General’s chambers, which is
designed to administer the estates of those persons who have appointed it
to act as such or those who have failed to appoint anyone at all

Procedure for obtaining a grant of letters of administration where there is no will

The beneficiaries chose among themselves a minimum of two people and a
maximum of four people to make the application. The application is made with the
consent of the beneficiaries, accompanied with the will, list of beneficiaries,
property, death certificate, fees of 2,750.
It takes the form of a petition and is filed in the High Court registry. The
court order for its advertisement in the Kenya gazette, then the grant is
made after 30days where there is no objection. The applicant apply’s for its
confirmation after six months.

Procedure for a grant of probate and letters of administration with will annexed
The executor is the person to apply for the grant. Application is by a
petition accompanied with the original will and 2 copies of it together with
the original death certificate of the testator. The file is filed in the High
Court registry and the judge orders for its advertisement in the Kenya
gazette. After 30days without any objections made a letter for grant is
issued. After six months the grant is confirmed

Resealing
Foreigner with property in Kenya
The grant is applied in his country of origin, after being granted it’s filed
in the high court in Kenya and the normal procedure of gazettement is
done.
Kenyan residing in a foreign country
Grant is applied in the country of a persons domicile. Commonwealth
countries allow application for grant in any of its countries. The grant is
then filed in the High court in Kenya and the normal procedure takes
place.
A grant made in the High court may be presented in another country for
resealing
Competent witness in probate – A person of sound mind and of full age.

How do you institute divorce proceedings

• File a petition to court outlining the grounds under which you're asking for a
divorce.
• Petition should be made at least one year after celebration of the marriage.
• Petition should be accompanied by a verifying affidavit, notice to appear (which
should state that appearance is to be made within 15 days) acknowledgment of
service, list of witnesses, witness statements & list of documents.
• After filing in court, you need to serve the respondent.
• Petition should be accompanied by notice to appear & acknowledgment of
• Service
• After respondent responds, petition takes effect.
• Process of serving respondent should be done by a court server to respondent in
person.

Through filing a petition to court for a decree of dissolution of the marriage. It has to
be on the following grounds

 Adultery
 Cruelty
 Exceptional depravity
 Desertion for at least three years
 Irretrievable breakdown of the marriage

Procedure of resealing a grant

Resealing a grant by a Kenyan - If its a Kenyan who dies abroad, his domicile
determines where he should apply for a grant. But if he generally resides in Kenya,
then the grant would be applied for in Kenya.

Commonwealth 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.

If it’s a foreigner who dies abroad but his property is in Kenya, a grant is applied in
his country of domicile and filed in the High Court of Kenya for resealing. It must be
a certified copy of the grant issued by foreign country. The grant from the 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. The
forms required are: Form P&A 81 or P &A 83- petition). Form
P&A 7- Affidavit…

Application should be made in accordance to s 77 of the Act and Rule 42 of the

Probate and Administration Rules of 1980

A person should make an application either in person or through his attorney

(empowered in writing to act on his behalf)

Such application should be made in High Court by way of petition by form 81 or 82

supported by an affidavit by 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.

One should then file together with the application; a certificate from the Estate Duty
Commissioner evidencing either the payment of all estate duty payable to him or
that they will be paid or that no such duty is payable.

true copies of the grant or power of attorney,

unless the registrar otherwise directs, a full inventory of the assets and liabilities of
the estate of the deceased in Kenya,

evidence of domicile of the deceased and proof of death as may be required.

A notice will be published in Kenya gazette inviting objections within a (period of

not less than 30 days as specified in notice)
Where there is no such objection the Court will order for sealing.

Procedure:

Application should be made in accordance to s 77 of the Act and Rule 42 of the

Probate and Administration Rules of 1980

A person should make an application either in person or through his attorney

(empowered in writing to act on his behalf)

Such application should be made in High Court by way of petition by form 81 or 82

supported by an affidavit by 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.

One should then file together with the application; a certificate from the Estate Duty
Commissioner evidencing either the payment of all estate duty payable to him or
that they will be paid or that no such duty is payable.

true copies of the grant or power of attorney,

unless the registrar otherwise directs, a full inventory of the assets and liabilities of
the estate of the deceased in Kenya,

evidence of domicile of the deceased and proof of death as may be required.

A notice will be published in Kenya gazette inviting objections within a (period of

not less than 30 days as specified in notice)

Where there is no such objection the Court will order for sealing.

If a man has two wives under polygamy then marries a woman under statutory law
do they qualify to be called wives
Succession law – they are both wives of the man as per section 3(5) of the LSA and
Section 29 they are his dependants

Objection proceedings

You can stop execution by Objection proceedings under Order 22 rule 50 . Where
property is attached the attachment may be objected to through objection
proceedings. Any person who is entitled to have any legal or equitable interest in the
property to be attached may at any time before sale or paying out of the proceedings
of the sale object in writing to the court.

Objections to the issue of a grant

After the application is gazetted, objections may be made within 30days.

The objector files his objection, in triplicate, to the high court registry. The registrar
notifies the applicants of the objection and also notifies the objector to answer to the
petition for grant, together with a petition by way of a cross application (petition)
supported with an affidavit. The registrar then refers the matter to the court for
directions and then notifies the parties involved of the time and place of hearing the
objections.

Where the objector wishes to withdraw his objections he files a notice to withdraw.

Docs used to file objection to an application for letters of grant

An answer to the petition for grant

Petition by way of a cross application

Special grants

Characteristics of a gift in contemplation of death

Validity of a will

How does a cohabitee claim her rights, Sec 2e, Sect 3(5), Sect 4

The laws of Kenya do not provide for the rights of a cohabitee.

Section 2e defines a wife as wives and former wife

Section 29 provides for dependants

In as far as cohabitation is concerned, b4 marriage is presumed, the courts will look

at various factors

a. The length of time that the couple have lived together

b. What the neighbours perceived of the union

c. How the couple carried themselves out

d. Children.

If these conditions exist they weigh heavily in favour of the woman. In the case of
Hortensia Wanjiku Yawe V Public Trustee it was observed that the presumption of
marriage may arise out of long cohabitation and the general repute that the parties
must be married.

If the Cohabitee can fulfil the above conditions, then the Court can presume
marriage between herself and the deceased and she will qualify as a dependant as
defined in Section 29 LSA

Characteristic of a will

It is defined under section 3(1) LSA as the legal declaration by a person of his
intentions or wishes regarding the disposition of his property after his death duly
made and executed in accordance with Act

A will has five essential characteristics/elements:

 the wishes expressed are intended to take effect upon death,

 it only takes effect on death,

 it operates as a declaration of intention,

 it is ambulatory, and

 it is always revocable.

Maintenance of a spouse (ex)

Under common law, the obligation to support a spouse was one that only the
husband had.
The duty lasted only as long as the cohabitation lasted. This right was the basis of
the common law right of the wife to get the husband’s credit for necessaries.
Nanyuki Gen Stores Vs Patterson

Under statutory law, wife and children have a right to maintenance by the husband
only in cases where the wife is financially dependent on the husband.

Evidence has to be brought before court to show the level of the wife’s dependence
on the husband. By both parties filling affidavits which show the incomes and the
needs of the wife and children. This can be ordered under Sec. 4 and 10 Marriage
and separation Act subordinate courts whether or not a judicial separation ie. Being
sought.

- Maintenance orders can also be given under matrimonial causes Act upon a
divorce having been filed. These orders are :

(i) When a decree of restitution of conjugal rights has not been

complied with

(ii) Sec 17, 20 and 21 – Sec 25 – Under the same Act, there is Alimony

Pending suit – temporary maintenance granted by the court upon filing of a nullity
petition , divorce petition or judicial separation

(iii) Maintenance ordered upon a divorce or nullity or judicial separation

decree : - Can be a gross amount to the wife or an annual amount ( Sec 26)

Instances where wife also pays maintenance

- Where there is a restitution of conjugal rights decree on the wife which she
defaults

Incase of divorce or judicial separation where the wife is the guilty party Sec 27 –
court can order for the settlement of the wife’s property for the benefit of the
husband and children

1. Sec 3(5) L.S.A

1. difference between a will & codicil

2. Void & voidable marriage

3. Donotio mortis causa -gift in contemplation of death

Gift in contemplation of death

Section 31 LSA

Cain v Moon set down the conditions that must be satisfied before a gift is deemed
to have been lawfully passed from the donor to the donee. These conditions have
been incorporated into section 31 of the Act i.e.

i. the gift must be in contemplation of death,

ii. be conditional upon donor’s death,

iii. delivery to the done by giving a means to that gift,

iv. the gift must be capable of making the subject matter of a

donatio mortis causa and

v. the donee must survive the donor

When the donor recovers from the illness that led him to contemplate death, the gift
fails. If he dies of another illness apart from the one that led him to contemplate
death or through suicide the gift also fails.

Difference between testate & intestate

Testate- where a person dies having written a will

Intestate- where a person dies without having written a will

Execution of wills

Procedure of application for an objection.

What is an objection

Documents while filing for a temporary grant.

Documents to be lodged for testate succession.

Types of limited grants

Difference between ad colligenda bona and ad colligenda defuncti

Are there grants that are limited by their nature?

Who is the woman under s.3(5)?

Who are persons under s.29? Give examples of each...

Special limited grant

Any landmark family decision I know

Develop theme for SM Otieno case

Intermeddling

Who are dependents in the law of succession?

Sec 29 of the LOSA wives and former wives and their children, parents grandparents
siblings and step siblings step children and children taken in by deceased as their
own and finally if the deceased was a woman their spouse if he was being
maintained.

Does the fact that a husband has to prove maintenance amount to discrimination?

Yes, it does. Art 27 of the CoK every person is equal before the law

Art 45 of the Cok on families provides that married people are equal before during
and after the subsistence of the marriage.

Case scenario on probate (grant obtained fraudulently)

Sec 76 of LOSA states that grants obtained fraudulently will be revoked or annulled
by court especially if material information was concealed or false statements were
made by the parties seeking the grant.

Any landmark family case decision I know

Echaria vs Echaria on Matrimonial property

Initially court stated that matrimonial property would be divided 50/50 then on
appeal court said it would be divided based on contribution which isn’t monetary as
it may include, taking care of the home, taking care of the children and running the
family business.

Persons in s. 29 of LSA

Persons who are dependants may inherit from the deceased’s estate
If a stepchild can inherit from the estate of the deceased

Child under section 3 of the LSA

Stepchild can have 2 scenarios:

● If deceased maintained the child, then he’ll fall under section 29 and
inherit

● If deceased never acknowledged the child, then the child will not
inherit

What is a privileged will

A privileged will is one made by members in active service and they are privileged
in the sense that oral wills rules don’t apply to them

Types of limited grants

1. Grant ad colligenda bona defuncti

2. Grant ad litem

3. Grant of administration pendente lite

4. Grant de bonus non administratis

5. Special limited grants

Difference between ad colligenda bona and ad colligenda defuncti

Are there grants that are limited by their nature?

Yes, for time

1. Grant Durante aetate minore (where rep is a minor, ends when they are 18)

2. Grant durante absentia (where personal rep is outside the jurisdiction)

3. Grant where will unavailable

4. Benefit and use of person of unsound mind

5. Temporary grant

6. Special grants
Title of suit when suing on behalf of a child and a person of unsound mind

Jane kamau (a minor) by Mary kane.. plaintiff

(Suing as the mother and next friend)

Hussein………………. Respondent

Revocation of will by striking through a word in a will...and making a mark at the

end of the will...

Element

1. Destroy

2. Intention. (Cheese v lovejoy)

Which court has jurisdiction on family matters (divorce probate and adoption)

Divorce- Magistrate/High court

20 mill

Adoption- Children’s court, high court

Between LSA and Civil procedure rules which deals with succession matters and
why?

The LSA. S.2(1) states that LSA shall have universal applications to all cases of testate
and testamentary succession of all estates of deceased who died after
commencement of the act (1981).It also repealed all other acts before it.

Tell us the procedure of objection

Sec 68 and 69
Objector files notice of Objection
File an answer to the application ands a cross application

At what point can one apply for a revocation of grant?

At any point, whether confirmed or not.

Case scenario on revocation of grants. I have applied to the court for revocation of a
grant issued to my Mum on the estate of my Dad on the ground that I was left out.
What orders will the court grant me.

Revocation or annulment, under sec 72> Material Concealment , untrue allegation or

fraud

Form 80 Petition for letters of adm, intestate

Form5 Affidavit in support of intestate

Form 38 Consent for making

Form 41 Grants of letters of adm intestate

Form 45 Grant of probate of a written will

Form 3 Affidavit with will annexed

Form 42 for Grant of probate of terms of Oral will annexed

Form 43 Grant of probate of will annexed

What is an Order Nisi?

Is a court order that will come into force at a future date unless a particular condition
is met.

****Decree nisi and decree absolute

The decree nisi is a provisional decree of divorce pronounced when the court is
satisfied that a person has met the legal and procedural requirements to obtain a
divorce. Following the pronouncement of decree nisi, the marriage still exists and
you are not yet ‘divorced’.

After a successful Divorce petition, a Decree Nisi is thereafter issued after judgment.

A Decree Nisi is a court order that states that the marriage has been dissolved by the
court after the said court being satisfied that the Petitioner has proved the grounds of
divorce pleaded by the Petitioner and that the Petition has not been presented or
prosecuted in collusion with the Respondent and a further condition that the
Petitioner has not condoned the acts of cruelty, adultery etc. as pleaded in the
Petition.
The Decree Nisi is later made Absolute (final) within ONE (1) MONTH from the
date of issuance of the Decree Nisi. This one month is time to raise any appeal or
review.

A Decree Absolute is the last document issued to finalize the Divorce. It is the final
stage of the divorce proceedings and confirms the dissolution of the marriage. This is
a final order prepared by the Petitioner for signing by the judge. Now the divorce is
final.

An old man has died in Mandera; he has left behind two wives and 8 children how will that
property devolve.

if there's a will, property to be shared as per testator's wishes if the will is valid. In
the absence of a will or in the event of invalidation of the will, rules of intestacy
apply. Section 40 LSA is the applicable provision. Property to be shared according to
number of units, so each house to get according to the number of children e.g. if
house A has 3 children and house B 5, property to be shared in the ratio of 4:6.

Illustrative case, Catherine Mbauni v Gregory Maina Mbauni

A mother and daughter live next to Kibera. The daughter is affected by the pollution
and gets ill. The mother comes to you. Advise.

A child is amputated. The father has passed on. They have just applied for grant of
letters of administration but need money for the child to get an artificial leg. There
is a land they want to sell for purposes of getting the artificial leg and to pay school
fees with the remainder. How will you advise them?

I would advise that they apply for a special limited grant.

Specify the necessity the estate will cover

Fill form P&A 85 and P&A 19

Applicants must appear before the judge

2.They tell you that the process of applying for limited grant is expensive and will take time.
They go to another lawyer who comes up with a sale agreement for them. What do you have
to say about that?

If they proceed to sell the land without permission by way of grant or any other
written law, they will be intermeddling with the free estate of the deceased and that
amounts to a crime as per section 45 of the Law of Succession Act.
There is land with wheat. They want to harvest the wheat and sell it so as to pay
school fees for the child. Advise.

First, apply for a Grant ad colligenda bona de functi which allows for harvesting and
preservation of perishable goods of the deceased estate.

They would then apply for a special limited grant in which application they would
have to specify the reasons

Who is the woman under s.3(5)?

Who are persons under s.29? Give examples of each

Who is a dependant?

Is an adopted a dependant

If I know anything on goodwill

Assuming a widow comes want to get some money from the husbands bank account
what would I advise her

Also, the widow wants to take over a suit that her husband was pursuing before his
death.

Who is a dependant?

Sec 29

Is a man discriminated against to prove dependency?

Yes Sec 27 and 46

How can someone in the grave control his property?

By leaving a valid will, capable of taking effect (capacity etc)

Fraudulent application of a grant(scenario)

Identify the fraud and the offence in question- concealment or intermeddling.

Application for 76 to revoke
Special limited grant

Urgent matters, show proof during application

Can a stepchild inherit?

Yes and no. Yes, if he/she was recognized as a child under Sec 3, can apply as a
dependent. If not recognized cannot inherit.

What is a Privileged will?

A will made by members of the armed forces, does not have to conform to Sec 9.
Armed forces act. No time limit, one witness and must be in active service (all
personal) Re Ada Stanly.

Briefly describe how sealing happens.

Have original copy of the confirmation of grant from that country, approach the
court on sealing of evidence.

Ensure: you have paid estate duty, any evidence of domicile of the accused person
and may require adequate security for payments of debt due to estate creditors
residing in Kenya.

Which property is mostly sealed?

Foreign grants are recognized only to movable property.

Executor who doesn’t want to become executor- renunciation (Sec 58)

Who is an executor, administrator and trustee.

Executor- a person who appointed by the will to take charge of estate of the
deceased upon his death

Administrator- a person to whom a grant of letters of administration has been made

under the act
Trustee- office in the AG chamber to administer the estate of persons who has
administered it to do so or have failed to choose anyone.

Relation between criminal law and probate.

The law of probate provides for offenses that are criminal in Nature. They include:
Intermeddling, misrepresentation for application of grant, Sec 96(profiting from
crime), offenses by personal representatives,

How to deal with the estate of someone who had died intestate. (procedure)

If the testator makes oral will that he will die of cancer, and dies in an accident, is
his will an oral will?

Sec 9 elements made (witness, plus 3 months)

Donatio different, if you recover and die of something else? the gift will not pass
(wilks v allington)

Difference between gift inter vivos(gift+interest), Donatio(gift in possession but

interest passes after death) and testamentary gift (gift takes effect after death)

Types of grants

a) Grant of probate – made in respect to all the property to which the will
provides

b) Grant of letters of administration :-

i. Grant Of Letters Of Administration With Will Annexed - made in

circumstances where either:-

● the deceased left a valid will, but there is no proving executor, i.e the will
does not appoint an executor(s) or

● the executor(s) appointed has pre-deceased the testator or the executor(s) has
renounce executorship

● the executor(s) appointed has been cited to take out a grant of probate and has
failed to do so (S 63 the LSA).
 Made to the following:-

● The universal or residuary legatee, (person entitled to the remainder of

the estate after payment of debts/liabilities and distribution),

● A personal representative of the residuary legatee,

● The person or persons entitled to the administration of the estate of the

deceased if he had died intestate,

● The public trustee,

● Any other legatee and creditors

ii. Grants of Simple Administration –

● · the deceased dies totally intestate or

● · where his will is invalidated and

● · where intestacy is partial, it will be made in respect of property

that is not dealt with under the deceased’s will. Made in order of
affiliation to the deceased

iii. Limited Grants

(a) Grants Limited as to purpose

(i) Grant ad colligenda bona (S 67 LSA) – limited to the purpose of collection and
preservation of the assets, applies to assets likely to be wasted before getting a full
grant e.g. perishable goods. A full grant takes about 2 months and within that time
assets may be wasted.

(ii) Grant ad litem – issued for purpose of commencing/defending legal proceedings

where the estate is a party to the suit (paragraph 15 of the 5th Schedule to the LSA)

(iii) Grant pendente lite - is granted where there is a pending suit relating to the
estate. Such grant is issued so that the estate is administered during the dispute or
pendency of suit. It is limited to the duration of the pendency of the suit.

(iv) Grant de bonis non administrates – issued to administer an unadministered part

of the estate or where estate is incomplete or partially administered because the
administrator has left the jurisdiction, died or abandoned his administrative
responsibilities

(v) Cessate grant – issues where the original grant was limited as to time and that
period has now expired leaving administration of the estate incomplete.
(vi) Temporary grant by a resident magistrate (S 49) – issued by the resident
magistrate. Similar grant to the ad colligenda bona except that in addition to
collection and preservation of assets, the holder has authority to pay debts.

(b) Grants Limited as to property - Under paragraph 13 of the 5th Schedule.

It may be granted where a testator appoints executors only for certain assets in a
specified area e.g. an executor for Mombasa property and another for Kisumu
property. Also applies to where deceased is domiciled elsewhere but has property in
Kenya. Grant will be limited to his property in Kenya.

(c) Grants Limited as to time - Paragraphs 1 to 10 of the 5th Schedule, and S 49 of the
Act.

(i) Grant durante aetate minore - taken out where either the executors or the
administrators are minors and as such they are not entitled to a grant in their own
right The grant automatically expires when the minor reaches 18 years old, unless
some other time is specified by the court.

(ii) Grant durante absentia - Where the personal representative is outside the
jurisdiction, the court may grant representation to another person limited to the
duration of the absence of the personal representative (paragraphs 4, 5 and 6 of the
5th Schedule).

(iii) Grant where will is unavailable - Where the deceased had made a will, but the
same is lost, misplaced or unavailable a limited grant may be given until the original
or more authentic copy is found or availed

(iv) Administration for use and benefit of a person of unsound mind - Where the
person who would be solely entitled to the estate of the intestate is mentally
incapacitated, Grant limited to duration of disability.

(v) Temporary grant limited to collection of assets and payment of debts - This is
provided for under S 49 of the LSA and rule 37 of the P & A Rules. It is related to the
grant ad colligenda bona, the only difference between them being that the limited
grant under S 49 goes beyond collection of assets to cover payment of debts. It is
made pending the making of a full grant.

(vi) Special limited grant LN No. 39 of 2002 –made in special circumstances where
the urgency of the matter is so great that the court cannot make a full grant within
sufficient time.
Foreign Grants - If the deceased has movable assets outside Kenya, it is necessary to
obtain in that country a separate grant that fulfils the probate requirements of that
country. For real (immovable) property only the law of Kenya will apply. S 4(1)(b)
provides that succession to the movable property of a deceased person, wherever
situated, shall be regulated by the law of the country of the domicile of the
person at the time of his death

Relation of criminal law to probate

● The importance of the existence of the two elements of a crime incases of

murder. A person who murders another cannot benefit from the property of
the person he has murdered. The murderer is treated as though he died
before the deceased

● Intermeddling with the property of a deceased is a crime.

Who is an executor?

A person appointed by the testator under his will to administrate his property and
distribute it among his beneficiaries. He derives his authority from the will. The
executor applies for the grant of probate and another other necessary grant.

How to deal with an estate of a person who has died intestate:

Section 35 governs the monogamous situation where the couple has children. In
such cases the surviving spouse is entitled to the personal and household effects of
the deceased absolutely with a life interest on the whole residue of the net intestate
Estate.

Section 36 where the deceased has left one surviving spouse but no child or children.
The surviving spouse is entitled out of the net intestate to the following:

1. To the personal and household effects of the deceased absolutely;

2. To the first Kenya Shillings 10,000/- out of the residue of the net intestate Estate;
or 20% of the residue of the net of the intestate Estate whichever is greater;

3. A life interest in the whole of the remainder i.e. over the 80% of the residue,
Section 38 deals with the situation where the intestate has left a surviving child or
children but no spouse. In such circumstances the net intestate devolves upon the
child or children.

Section 39 is about where the intestate leaves no surviving spouse or children either
because he/she never got married or they predeceased her, the property should
devolve upon the kindred of the intestate or blood relatives of the deceased in the
following order of priority;

Section 40 - This provides for division of the property of an intestate where the
deceased is a polygamist. The Estate of such a deceased person should be divided as
follows:

1. His personal and household effects and residue of the Estate should in the first
place be divided among the houses according to the number of children in each
house;

2. The Estate is divided in accordance to the number of children in each house.

If the testator makes an oral will because he fears he’ll die of cancer n two weeks
later he’s involved in an accident and dies is it an oral will

Section 5 a testator has testamentary freedom. Section 8 a will may be oral or written.
Section 9 an oral will is valid if made in the presence of two witnesses and the
testator dies within 3months after making the oral will

Gift inter vivo and donatio mortis causa

Gift inter vivo means that the transfer of the property becomes operative during the
lifetime of the donor whereas a donatio mortis causa is a gift made in contemplation
of the death of the donor and it passes to the donee after the death of the donor. It
resembles a gift inter vivo in that it takes effect when the delivery takes place but it
only becomes absolute if the donor dies

How is a will revoked

Section 5 of LSA provides that a person has testamentary freedom to make a will.
Section 8 a will may either be oral or written. If oral there should at least two
witnesses and the testator dies within 3months of making the will (section 9 &10). If
written it should be executed and attested to. A will may be revoked section 17.
Section 18 it may be revoked by: - total destruction i.e. tearing or burning; by
marriage unless it was contemplated; by writing another will or codicil; where the
will is lost without trace

How do you relate revocation by destruction to the law of evidence

Where the will is being contested upon and it has been destroyed by destruction the
rules of evidence demand that for the revocation to be valid two things must be
proved. That the testator had the intention of the actual destruction of the will and
an intention to revoke the will. Both elements must be present. The actual
destruction must be by burning, tearing or otherwise destroying the will.

Who is an administrator, executor and trustee n how are they appointed

Executor – A personal representative appointed under a will to distribute the

property of a dead person according to the terms of the will. Section 6 of the Law of
Succession Act provides that a testator may appoint his executor or executors by will

Administrator – A person appointed by the court in case of intestacy, and in testate

cases where there is no proven executor

Public Trustee – An office in the Attorney-General’s chambers, which is designed to

administer the estates of those persons who have appointed it to act as such or those
who have failed to appoint anyone at all

Procedure for obtaining a grant of letters of administration where there is no will

The beneficiaries chose among themselves a minimum of two people and a

maximum of four people to make the application. The application is made with the
consent of the beneficiaries, accompanied with the will, list of beneficiaries, property,
death certificate, fees of 2,750.

It takes the form of a petition and is filed in the High Court registry. The court order
for its advertisement in the Kenya gazette, then the grant is made after 30days where
there is no objection. The applicant applies for its confirmation after six months.

Procedure for a grant of probate and letters of administration with will annexed
The executor is the person to apply for the grant. Application is by a petition
accompanied with the original will and 2 copies of it together with the original death
certificate of the testator. The file is filed in the High Court registry and the judge
orders for its advertisement in the Kenya gazette. After 30days without any
objections a letter for grant is issued. After six months the grant is confirmed

Resealing

Foreigner with property in Kenya

The grant is applied in his country of origin, after being granted it’s filed in the high
court in Kenya and the normal procedure of gazettement is done.

Kenyan residing in a foreign country

Grant is applied in the country of a person's domicile. Commonwealth countries

allow application for grant in any of its countries. The grant is then filed in the High
court in Kenya and the normal procedure takes place.

A grant made in the High court may be presented in another country for resealing

Competent witness in probate – A person of sound mind and of full age.

If a man has two wives under polygamy, then marries a woman under statutory
law do they qualify to be called wives

Succession law – they are both wives of the man as per section 3(5) of the LSA and
Section 29 they are his dependants

How do you move court for grants,

Have u ever seen the succession act and how is it arranged (i.e. sections then
schedules, rules, forms)

Procedure for applying for a special limited grants,

Sources of law

Nullity and divorce

A kamba woman wants to divorce under customary law. How do you proceed?

Breach of contract

Circumstances under which a will can be challenged

My take on the marriage bill

Essentials of a will,

What's a codicil,

Who is an intermeddler

An intermeddler is a person who acts on the deceased’s estate either by disposing

assets without any authorization from the L.S.A or other authority. Any person
under sec 45 who interferes with the estate of a deceased person without
authorization from court and the punishment is fine of ksh 10,000 or 1 year
imprisonment or both

What is an oral will?

Section 9 of LSA, it is a will done by members of the defence forces, before two
witnesses. Must die within 3 months of making the will.

Exceptions: Doesn’t apply to members of the armed forces where deceased died and
the 3 months period has lapsed

Can spouses testify against each other?

The general rules is that spouses are not compellable witnesses however there are 3
exceptions bigamy, sexual offences and matters affecting one of them

Marriage regimes in Kenya

● Civil marriage

● Hindu/ Islam marriage

● Customary marriage

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:

o Wives, former wives, children (whether maintained immediately

before or not)  their entitlement is automatic

o Parents, step parents, grandparents, grandchildren, step children and

children the deceased took in as his own  have to prove maintenance
immediately prior to death

o Husband  if being maintained by deceased wife prior to death

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:

o The beneficiary dies leaving behind a child (issue), then the property
passes to the intended-beneficiary’s child

o A gift made in discharge of a moral obligation may pass to the personal

representative of the predeceasing donee
 o 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

o 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:

o The Testator must intentionally dispose-off the property;

o The property must belong to someone other than the Testator; and

o 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

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 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.

o 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

o 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)

o 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
 o 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

o 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

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:

o Dependents who are eligible regardless of whether or not maintained

by deceased prior to his death  wives, former wives and children

o 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

o Dependent husbands (if maintained by wife prior to her death)

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:

o A verifying affidavit

o Notice to appear

o Confirmation of service or non-service

o Witness statement + list of witnesses

o 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

o Chamber Summons must be accompanied by an Affidavit by the court

process server evidencing service or non-service of the Petition

o 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

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)

o Judge issues orders to advertise matter in Kenya Gazette

o If no objections raised for 30 days, grant of probate is issued with a

copy of the will attached (P&A 45)

o 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

o Priority is given to a survivor in order of consanguinity  i.e. wife,

husband, children, parents etc.

o 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

o The Public Trustee is an office in the office of the AG to deal with

succession matters

o 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

o 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

1. Ad Colligenda S. 67 LSA + Rule 36 & 37 Estate constitutes perishable or

Bona Probate and precarious goods
Administration Rules

2. Ad Litem Fifth Schedule, Estate of deceased has been sued

Paragraph 15 or contemplates suing  is
necessary when the estate’s
interests are to be secured

3. Pendete Lite Fifth Schedule, During the period in which the

 Paragraph 10 & 14 court is determining the validity
of the will, this grant may be
issued to enable the estate to
continue in other litigation

4. De Bonis non Fifth Schedule, This grant extends the period of

Administratis Paragraph 20 administration of the estate
where the Executor needs more
time

5. Cessante Grant Fifth Schedule, This grant is used when you

Paragraph 21 would like to extend a limited
grant that has expired

6. Temporary S. 49 LSA Limited for purposes of moving

Grant 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

7. GRANTS LIMITED IN PROPERTY  5th Schedule, Paragraphs 13 – 15

8. I.e. a limited grant to a specific

property can be issued pending
application for a full grant

9. GRANTS LIMITED IN PURPOSE

10.Durante Etate Fifth Schedule, This application is made by a

Minore Paragraph 7 & 8 minor’s ‘Next Friend’ for the
limited purpose of administering
the estate on behalf of the minor

11.Durante Fifth Schedule, Made by a person outside the

Absentia Paragraphs 4 – 6 jurisdiction of the court to allow
another person to step in as
administrator pending his return

12.Will is Where will is misplaced, lost or

unavailable otherwise unavailable, a grant is
issued pending the original being
produced in court

13.Behalf of person Fifth Schedule, Can be made by a Next Friend

of unsound
 mind Paragraph 9

14.Temporary S. 49 Limited purpose and limited time

Grant

15.Special Grant Legal Notice No. 39 of Jurisdiction of court was

2002 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:

o To enforce by suit any causes of action by or against the estate

o To sell or otherwise account for any part of the assets vested in them

o To agree to the vesting of a specific legacy

 Duties of the personal representative:

 o To administer the estate of the deceased

o To ensure that all legal suits are promptly prosecuted/defended on

behalf of the deceased’s estate

o To ensure all beneficiaries are promptly contacted and their share of

the estate is distributed them

o Within 6 months of the confirmation of grant, to produce a full

inventory of the assets and liabilities of the estate

o 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:

o Chief Magistrate: 20, 000, 000

o Senior Principal Magistrate: 15, 000, 000

o Principal Magistrate: 10, 000, 000

o Senior Resident Magistrate: 7, 000, 000

o 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:

o Fill out Form 28 in the appropriate registry

o Pay the prescribed fee

o 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:

o The objector is entitled to the grant of representation, e.g. they hold

higher priority in terms of consanguinity

o The objector is entitled to an interest in the estate

o Suitability or competence of the proposed administrator (who has

applied for the grant)

o 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:

 o 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

o 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

o 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?

o 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
 o 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:

o There is no dependant of the deceased as defined by S. 29;

o The only dependants of the deceased are of full age and consent to the
application;

o 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:

o Has failed to confirm the grant within one year, or longer

o Has failed to proceed with diligent administration of the estate

o 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

o Service of the citation is done on the citor  The method of service is

as directed by the Registrar

o 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

o 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

o 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 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, childcare, 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 

o Surviving spouse entitled to personal and household effects absolutely;

o The first 10 thousand out of the residue of the net estate, or 20% of the
residue of the net estate, whichever is greater

o 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 

o Personal and household effects are divided among houses according to

number of children

o 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:

o The donor must contemplate death

o The gift must be movable property

o There must be delivery of the gift

 o There must be an intention for the gift to pass only upon death

o 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:

o Testator had the intention to actually destroy the will; and

o There was an intention that the destruction would be a revocation

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 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

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

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:

o Marriage not consummated since celebration

o At the time of the marriage and without knowledge of either party, the
parties were in a prohibited relationship

o One party was married to another in the case of a monogamous

marriage

o The petitioner’s consent was not freely given

o A party to the marriage was absent at the time of the celebration of the
marriage

o The wife was pregnant at the time of the marriage and it was not the
husband’s child

o At the time of the marriage and without the knowledge of the

petitioner, the other party suffers recurrent bouts of insanity

 Grounds for divorce:

o Cruelty

o Desertion for at least 3 years

 o Adultery

o Depravity

o 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

Can spouses testify against each other?

  Section 127: a spouse is a competent witness; however, he/she can only be a
witness:

o Upon their own application;

o Upon the application of the person charged; and

o 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:

o Bigamy

o Offences under the Sexual Offences Act

o 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

What is the procedure for resealing a grant?

 Kenyan Citizen who passes away abroad:

o 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:

o The grant would be applied in Kenya

o The Common wealth countries allow applications for resealing in any

of its countries

o The grant is then issued by the High Court

o The issued grant is filed and minuted

o The notice to the Kenya Gazette issued  If there are no objections

then letters are issued

 Foreigner, dies abroad but property is in Kenya:

o A a grant is applied in his country and filed in the High Court of Kenya
for resealing
 o It must be a certified copy of grant issued by foreign country

o The grant from foreign country is then filed and minuted

o The notice to the Kenya Gazette is issued  If there are no objections,

letters are issued

o 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)

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

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

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

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 are the characteristics of a will?

 Oral will: (S. 9 LSA)

o Should be made in front of 2 witnesses

o 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)

o In writing

o Signed by the testator

o 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)

Procedure for maintenance of an ex-spouse.

 Subordinate Courts (Separation and Maintenance) Act

 Section 4:

o Powers of the court to give orders on legal custody and provision by

the Husband

o 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:
 o 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:

o 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

o 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?

(i) The recipient’s financial needs

(ii) The person’s ability to pay

(iii) The standard of living of the recipient (which he/she had become accustomed
to during the marriage)

(iv) Each party’s ability to earn and self-support

Professional Ethics
The 7 social sins

Wealth without work.

Pleasure without conscience.

Knowledge without character.

Commerce without morality.

Science without humanity.

Worship without sacrifice.

Politics without principle

Theories of professional ethics

Sec 2 of the Advocates Act defines a client, what should lawyers be wary about in
the definition

The definition includes "...any person who is or may be liable to pay an advocate any
costs." The Advocates Remuneration Order defines the remuneration to be paid and
the term any costs may suggests any costs deemed fit by the client and not
necessarily that which comply with the Advocates Remuneration Order.

Provision in the advocates Act on working under an advocate before one opens his
or her firm – section 13 of the Advocates Act - a person qualifies to be admitted to the
bar after having worked for not less than two years under an advocate that has been
in practice not less than five years.

Sec 2 of the Advocates Act defines a client, what should lawyers be wary about in
the definition

The definition includes "...any person who is or may be liable to pay an advocate any
costs." The Advocates Renumeration Order defines the remuneration to be paid and
the term any costs may suggests any costs deemed fit by the client and not
necessarily that which comply with the Advocates Renumeration Order.

Professional undertaking at what stage does the financier advocate do it

Made during completion of the contract

Mortgagee’s Advocate undertakes to pay the loan proceeds upon registration of the
Charge plus/or transfer simultaneously.
Difference between advocates complaint commission and advocates disciplinary
committee

ACC- Investigates complaints against an advocate

ADC – deals with case of disciplinary issues involving an advocate after being heard
by the ACC. Makes orders as to the punishment or costs to be made by the advocate

Whether the judiciary can try an advocate instead of the complaints commission

Appeals from the ACC n ADC are made to the High court

Upselling-Marketing Rules for Advocates

Functions of JSC

Advocate uses client’s money to buy a Mercedes. How do you advise them?

Qualifications for one to be an advocate

Examples of ethical standards governing the legal fraternity in Kenya

The relationships governed by legal ethics

Reconcile the freedom of expression and the restrictions of the advocates dress code.

What is a profession?

A profession is a vocation requiring advanced education and

training. It may also be defined as a learned activity that involves formal training,
but within a broad intellectual context.3

What is the difference between a profession and business?

First, professions are based on philosophy acquired through advanced training.

Second, professionals render unique public services which require extensive
training. Third, professional work needs thorough preparation because of its unique
nature. Fourth, professions are based on specialized skill, and finally, professional
services should be rendered for the benefit of the public.

Define retainer

Two types of retainers.

What happens when you pay yourself out of the proceeds of a case- is this allowed?
What kind of measures will be taken against an advocate that commits this kind of
offence of misappropriating client funds?

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?

Nature of relationship between advocate and client

Meaning of fiduciary

What order do advocates use to charge clients?

Who regulates it?

What document does the cj use to regulate Rem Order? 7. why was Rem Order
enacted?

If an advocate is tried and found guilty by a tribunal, then the dpp later on directs
for criminal proceeding against the advocate, proceed and state possible defences.

What necessitated the making of the advocate marketing rules

Characteristics of the legal profession.

Which office regulates remuneration of advocates.

I don't have money for a practicing certificate, so I got a client who drafted
documents and paid me good money. I then paid for the cert in November. Is there a
problem? Explain in details

Document drafted when an advocate has no P.C. are valid, but te advocate is not
entitled to full fees.

This was held in the case of Anaj Warehousing, Supreme Court decision after the
case of Wilson Ndolo Ayaa stated that those documents are not valid

Examples of ethical standards governing the legal fraternity in Kenya

Advocates act, LSK code of ethics, SOPEC, Judicial code of conduct, prosecutors
code of conduct

Responsibility, transparency, fairness, confidentiality, conflict of interest,

competence and diligence

The relationships governed by legal ethics

Advocate-client

Advocate- advocate
Advocate and court

What is a contingency fee?

Talk about types of fees. Ie retainers etc

Fees charged by advocate based on favorable outcome of case

It is illegal in Kenya

Invalid -46 Advocates act

What happens when you pay yourself out of the proceeds of a case- is this allowed?

You can’t pay yourself without client’s consent. Instead, you can exercise the right of
lien.

What kind of measures will be taken against an advocate that commits this kind of
offence of misappropriating client funds?

A complaint to the complaints commission

What is Champerty? Is it legal?

What is touting? Where is it provided for?

Is marketing by advocates prohibited? Under which statutes?

Assume you're acting for a pauper; how do you make the application?

Pauper Briefs-Via Notice of motion

Civil Procedure Rules

Disciplinary bodies for advocates.

What is a profession?

A vocation requiring advanced education and training.

Or a learned activity that involves formal training but within a broad intellectual
context

Penalties given by the Disciplinary tribunal.

1.Advocate may be admonished; or (Struck off from roll of advocate)

2.Advocate may be suspended from practice for a specified period not exceeding five
years;
3.that the name of advocate be struck off the Roll of Advocates;

4. advocate to pay a fine not exceeding one million shillings,

5.such combination of the above orders as the Committee thinks fit.

6.such advocate pays to the aggrieved person compensation or reimbursement not

exceeding five million shillings.

Define retainer

A retainer is defined as fees paid to an advocate to ensure that his services will be
available when needed. It can be a single or monthly payment. The main purpose is
to ensure payment for future services is rendered. Unless otherwise stated, it is non-
refundable.

Two types of retainers.

General and Specific

General retainer- client secures advocate to offer client legal services in ordinary
non-contentious business

Specific retainer- advocate is secured by clients to offer legal services for a particular
litigation.

Tell us about admission of an advocate

Qualifications to admitted as an advocate

Who is a senior counsel?

Senior counsel. 15 + major contribution to law, roll of SC

Difference between a lawyer and an advocate.

What is the essence of ATP training.

What is a lien.

Remuneration of an advocate where the client paid half the fee, you lose the case,
client refuses to pay the balance. ( the right of the advocate)

What order do advocates use to charge clients?

Advocates rely on the Remuneration order sec 45 and 46.

Sec 45 gives guidance on the Remuneration of in house counsel, associates and well
as Remuneration of advocates employed by unqualified persons

According to section 45:

Advocates can charge a client through

A. An agreement through: an hourly charge,percentage charge, flat rate charge or a

combination of the aforementioned

B. Through the Remuneration order that gives the minimum on what to charge a
client

C. Through pro bono

However, it should also be noted that there are certain invalid agreements that the
Remuneration order prohibits under section 46 such as agreements whereby

A. An advocate purchases an interest in the suit of the client

B. An advocate relieves himself of liability when he carries out an action that

amounts to professional negligence

C. An advocate agrees with client that he will only be paid if he wins the case

D. An advocate can charge lower than the minimum stipulated in the Remuneration
Order

Who regulates it?

The CJ

What document does the cj use to regulate Rem Order?

Why was Rem Order enacted?

1. Prevent unscrupulous Advocates from charging exorbitant fees.

2. Order and unity in the profession

3. Market forces

If an advocate is tried and found guilty by a tribunal, then the dpp later on directs
for criminal proceeding against the advocate, proceed and state possible defences.

Double Jeopardy*

What is the importance of legal ethics?

a) Promotes respect to the profession c) Promotes survival of the legal profession.

b) Promotes discipline among members of the profession

What is a retainer?

This is the fee paid by a client to an advocate to represent the client whenever a
matter arises. The fee is for efficiency purposes, in that, whenever a matter arises, the
advocate will be available to represent a client. The following should be considered
before signing a retainer agreement:

a) The agreement should be in writing for record purposes and evidence.

b) Conflict of interest.

c) Scope of engagement.

d) The amount of fee should be clearly specified

What is the Duty of confidentiality and its basis.

What is judicial recusal?

Who is an advocate? Qualification of an advocate?

Can judicial recusal be used as a tool by advocates to waste the court's time?

Diff between professional misconduct and professional negligence

Contravening professional code of conduct

Negligence is failing to exercise reasonable care and diligence when handling client
matters

What constitutes professional misconduct

The advocates Act defines professional misconduct as conduct that goes against the
legal profession by an advocate. Instances of P.M

● Touting

● Failing to honour a professional undertaking

● Undercutting

● Failing to deliver damages to the client

● Failing to transfer a matter to another advocate when involved in a COI

P.M disputes are dealt with by the Advocates Dispute Tribunal which may:

● Suspend the advocate

 ● Remove the advocate from the roll of advocates

● Restitution

● Fine not more than 1 million

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:

o A complaint will be made to the Advocates Complaints Commission

o A tribunal will be formed to investigate the complaint if the complaint

has merit

o 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
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):

o 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

o 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)

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

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:

o 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

o Specific retainer  for a specific reason e.g. a particular litigation,

duration depends on how long the specific activity takes to be
completed

o Refundable retainer

o Non-refundable retainer
 o Hybrid retainer

 Contingent agreements?

 Rule 4, Code of Conduct and Professional Ethics  disallows contingency fee

1. 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

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

What is a professional undertaking?

 Halsbury’s Laws of England:

o It is an unequivocal declaration of intention;

o Addressed to someone;

o Who reasonably places reliance on it;

o Made by a solicitor;

o In the course of his practice;

 o Either personally, or by a member of staff of the solicitor “as a
solicitor”;

o 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

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 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

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

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:

o ‘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?

o ‘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?

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)

o 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

o 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 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
Trial & General Questions
Cross examination of witnesses
One is allowed to ask leading questions, question a witness on previous testimony
and it is not restricted in any way. There are 3 aims of cross examination
 To elicit further facts which are favourable to the cross examining
party;
 To test and cast doubt on the evidence given by the witness in chief;
 To impeach the credibility of the witness.

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:

o A witness may be asked leading questions on normal and introductory

matters, e.g. his name, age, address, occupation, etc.

o Leading questions are permissible on facts not in dispute

o Leading questions may be put to a hostile witness

o When opposing counsel consents to use of leading questions on a

particular matter

What is the structure of the various courts?

 Supreme Court

o 7 Judges, but is properly constituted with 5

 o Chief Justice is the President + Deputy Chief Justice is the Vice
President

 Court of Appeal

o Not less than 12 Judges and not more than 30

 High Court/ELRC/ELC

 Chief Magistrates Court

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

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:

o To elicit further facts which are favourable to the cross-examining

party;

o To test and cast doubt on the evidence given by the witness in chief;

o To impeach the credibility of the witness

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 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:

o Lack of public participation

o 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

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:

o African customary law is subordinate to the Constitution and other

written law
 o 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 jurisdiction of the Supreme Court?

 Appellate jurisdiction  may hear appears from the Court of Appeal which
have been certified as being of public importance

o 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)

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.
Factual scenario: how do you deal with a client who comes to you with a civil
matter from the beginning to the end.

Trial process- Client interview (Assess to see if claim exist, possible forum and
Parties), Taking Instruction and Legal Opinion demand, collection of evidence and
documentary evidence, Exchange of pleadings, pre-trial conference,
mentions/hearings, rulings on any applications brought and judgment and decree

Jurisdiction of the Supreme Court in Criminal matters

Jurisdiction is the power of the court to hear and determine a matter

Art 163 - Exclusive original jurisdiction to hear presidential election petition

Jurisdiction to hear matters on appeal which deal with rights and interpretation of
COK as well as those certified as matters of general public importance

Advisory opinions on request of state organ, national govt and county on any
matters concerning county government

Karisa Chengo case

Difference between a leading question and an open-ended question

Oxygen principle

Article 159(2) (d) of the Constitution provides that “justice shall be administered
without undue regard to procedural technicalities.” This principle is known as “the
oxygen principle”, and it is meant to avoid the unnecessary miscarriage of justice by
allowing the courts more discretion

Opening statement Desmond Peters case

Prosecution

May it please the court, your honour I am Mr Raingo, the prosecutor and on the
defence side is Mr Shoni for the defendant. We are here today for the trial of Mr.
Desmond Peters. This is a case of robbery under sec 295 of the penal code. Your
honour the City of Hippo and in particular the Municipal market has in recent times
been marred by insecurity.

On the evening of 1st May of 2009, at around 5 pm Ms. Louisa Singano and her
sister Theela Singano were shopping at the Municipal Market. After they were done
shopping they noticed two young boys following them, once they reached Browns
road a young man informed them that they were being robbed and to their dismay
when they turned around Louisa found her bag being torn using a razor blade. She
saw two boys running away, the boys were clad in brown pants and one had a white
shirt and the other a blue t-shirt.

Luckily one of the traders, Mr Mohammed was able to subdue one of the accused.
Your honour that accused happens to be present in the court today. (points to the
accused) There is a need to ensure there is safety for all citizens to freely shop in the
market. In the course of the trial, we are going to prove the ingredients of robbery.
We have reliable witnesses, lined up will that include Persons present at the scene,
witnesses and investigative officers. Your honour, despite the fact that Louisa was
not able to get a glimpse of the accused person, luckily he was immediately
apprehended and she identified him immediately. The prosecution intends to prove
that the accused indeed had the intention. Your honour we pray at the end of this
trail, the court to give a verdict of guilty.

Defence.

May it please the court, your honour, I am Teresia Ndung’u, counsel for the
defendant, and for the prosecution, is Mr. Hussein. We are here today for the
defence of the accused, Mr. Desmond Peters of the charges of robbery levied against
him. Your honour, this is a case of mistaken identity. My client works as an
advertiser to his uncle, Joseph Peter who is a petty trader who sells second hand
clothes. On that evening, as My client was going about his business, he saw one
young boy pass a bag to another and the young boy started running. To his shock,
my client was apprehended by Mr. Mohamed. My client and Mr Mohamed work in
the same market, and they had an unresolved dispute, where Mr Mohamed
threatened to arrest my client the day before the robbery. Your honour, we intend to
prove that indeed at the heart of this mistaken identity case, is the grudge between
him and Mr. Mohamed, who apprehended him. By the end of our case, we shall
prove that The accused is innocent of the charges. We intended to rely on credible
witnesses who were present at the scene. One witness, Mr Edwin Kwaza avers that
the robbers in question were wearing different clothes than those of the accused, and
that the accused was not one of the robbers. (eyewitness evidence) He will further
testify that the stolen item was a plastic bag and not a purse, and that Mr Mohamed
and the accused have an unresolved dispute. Despite the victims identifying my
client, once he was arrested, they were not 100% sure that he was the robber.
Furthermore, there is no physical evidence linking the defendant to the crime, and
hence this crime cannot be proved beyond reasonable doubt. Your honour, we pray
for the defendant to be acquitted of all charges.
Case theme

A word or phrase that captures the dominant emotion or reality of the theory of a
case. eg in the case of Faith Mueni the case theory could be your honour this is a case
of a good man turned wolf

What is Judicial Recusal

What is inherent jurisdiction?

Opening statement Desmond Peters case

What is a case brief?

What questions do we ask in cross exam and what is impeachment of a witness

Difference between a leading question and an open-ended question

What do you look at during case analysis?

How do you deal with bad facts during case analysis

What is Confidentiality?

Give Opening Statement in rape case

Systems of courts in Kenya

Conflict of interest

As a defence counsel what is it that you do immediately before ruling once the
prosecution have closed their case.

Documents in a professional undertaking

Faith Mueni's case, Exam in Chief and Cross Exam.

Jurisdiction of the High Court

On Jurisdiction of the court, what do courts use to determine that they have
jurisdiction?

Difference between duty of confidentiality vs privilege in communication

Duty of confidentiality implies that any information that a client divulges to an

advocate in the pendency of the advocate client relationship shall not be
unreasonably divulged to third parties.

Privilege in communication means that any information obtained from an advocate

client relationship without the express knowledge and/or authority from the client
shall not be admissible as evidence before any court or tribunal.
Overriding objectives

Case Brief? Tell us a case brief of the Ethiopian Plane Crash.

Explain to us the Trial Process.

Hierarchy of courts in Kenya.

Opening statement Desmond Peters case

Scenario on advocate-client privilege

Duties of an advocate, which duty ranks high?

Have you interacted with any of us? Where?

Are leading questions allowed in trial advocacy?

Leading questions are usually those so framed as to suggest the answer sought.
Questions could also be deemed as leading if so framed as to assume the existence of
facts yet to be established.

As a general rule, evidence obtained by leading questions is not admissible and

witness shouldn’t be asked leading questions.

Exceptions:

• A witness may be asked leading questions on formal and introductory

matters, such as his name, address, and occupation.

• Leading questions are also permissible on facts which are not in dispute

• Leading questions may also be put to hostile witnesses called by a party who
has been granted leave to treat him as hostile

• Leading questions may be used depending on the circumstance provided it's

objectionable. For instance during cross examination an advocate could
possibly such questions to a witness to make them testify on a subject they
may have been reluctant to.

A leading question is defined in Section 149 of the Evidence Act of Kenya to mean a
question suggesting the answer which the person putting it wishes or expects to
receive, or suggesting a disputed fact as a disputed fact as to which the witness is to
testify.

Use of leading question is only permissible in cross examination( Section 151of the
Evidence Act). The Act expressly prohibits use of leading questions in examination-
in- chief and re- examination through the proviso of Section 150(1) of the Evidence.
However, with the permission of the court such leading questions can be asked in
both examination-in-chief and re-examination.

What is the cab rank rule and its exceptions

The cab rank rule is the principle that an advocate is entitled to accept a client’s
instructions subject to limited exceptions

Exceptions

 Conflict of interest
 It is not in your area of specification
 Time- you do not have enough time to effectively handle the client’s case due
to workload
 The client has not given clear instructions
 The client does not want to pay the required legal fees
 If the fee offered is not a ‘proper one’
 Another exception will include where there exists another advocate who is
acting for the client in question. However, if the client terminates this prior
engagement or such advocate has withdrawn himself from the matter, the
latter advocate is then at liberty of taking up the matter.

Cab rank rule is the professional obligation on Advocates to accept instructions from
a client regardless of any personal dislike of the client or the case.

The general principle is that if you (as a trial lawyer) receive instructions from a
professional client and the instructions are appropriate taking into account your
experience, seniority or practice, you ought to accept those instructions irrespective
of the identity of the client, the nature of the case to which instructions relate,
whether the client is paying privately or is publicly funded and any belief or opinion
which you may have formed as to the character, reputation, cause, conduct, guilt or
innocence of the client.

There are limited exceptions to the general rule, including where there is conflict of
interest.

Article 48 of the Constitution on right of access to justice.

Article 50(9) of the Constitution on legal representation as a right to fair hearing.

Paragraph 38 of the Code of Ethics and Conduct of Advocates, 2015.

Part III, LSK Code of Standards of Professional Practice and Ethical Conduct, 2016.

The term originated from London where the taxi cabs would form a queue leading
up to the rank and simply take the next passenger waiting regardless of the distance
they were travelling. Naturally, in the taxi business, the longer the distance, the more
lucrative the journey was.

Exceptions

Where there exists real or likelihood of conflict of interest.

When an advocate knows or has reason to believe that another advocate is already
acting for that particular client unless: the other advocate has given his consent, the
other advocate has refused to act further, and client has withdrawn instructions from
the other advocate upon proper notice to him.

Where the advocate may have been consulted by the other side.

Where the advocate lacks the necessary expertise or experience to conduct the case
competently on behalf of the client.

When client cannot afford the fee.

The trial advocate may refuse to take up instructions from a client on his own
motion or an opposing counsel can apply for an advocate to be disqualified from a
conduct of a matter.

Maxims of equity

 He who seeks equity must do equity

 Equity is equality
 He who comes to equity must come with clean hands
 Equity looks at the intent rather than the form
 Equity acts in persona
 Equity doesn't act in vain
 Equity aids the vigilant not the indolent
 Equity will not suffer wrong without remedy
 Equity follows the law
 Equity looks upon as done and not which ought to be done
 Equity abhors forfeiture
 Equity doesn't complete an imperfect gift
 Equity will not assist a volunteer
 Equity will not allow a trust to fail for want of a trustee
 Equity regards a beneficiary as a true owner

What kind of questions do you ask in exam in chief

  Based on the issues that arose in the cross examination. The object of
examination in chief is to elicit facts that are favourable to the case of the
party calling the witness. In other words, the exam in chief is when you
question your first witness. Sometimes the plaintiffs themselves. Normally
they will be giving evidence that will be favourable to their case.
 Do not ask leading questions
 Ask one fact at a time
 Questions may begin with: what, where, when, how, which

Composition of the:
High Court - Number of judges prescribed by an Act of Parliament. Its headed by a
Principal Judge elected by judges of the High Court [Article 165(1)]

Court of Appeal - Not fewer than 12 Judges as prescribed by the Act of Parliament
headed by the President who is elected by the Judges (Article 164)

Supreme Court - Chief Justice, Deputy Chief Justice and 5 other judges headed by
the Chief Justice (Article 163)

Name 6 parliamentary committees

• Parliamentary Committee on Health
• Parliamentary Committee on Education
• Parliamentary Committee on Security
• Parliamentary Accounts Committee
• Parliamentary Committee on Legal
• Parliamentary Committee on Agriculture
• Senate Business Committee
• Procedure & Rules Committee
• Liaison Committee
• County Public Accounts & Investment Committee
• Committee on Energy, Roads & Transportation
• Committee on Lands Environment & Natural Resources.

Are leading questions allowed in trial advocacy?

Leading questions are usually those so framed as to suggest the answer sought.
Questions could also be deemed as leading if so framed as to assume the existence of
facts yet to be established.

As a general rule, evidence obtained by leading questions is not admissible and

witness shouldn’t be asked leading questions.
Exceptions:

• A witness may be asked leading questions on formal and introductory matters,

such as his name, address, and occupation.
• Leading questions are also permissible on facts which are not in dispute
• Leading questions may also be put to hostile witnesses called by a party who has
been granted leave to treat him as hostile
• Leading questions may be used depending on the circumstance provided it's
objectionable. For instance during cross examination an advocate could possibly
such questions to a witness to make them testify on a subject they may have been
reluctant to.

A leading question is defined is Section 149 of the Evidence Act of Kenya to mean a
question suggesting the answer which the person putting it wishes or expects to
receive, or suggesting a disputed fact as a disputed fact as to which the witness is to
testify.

Use of leading question is only permissible in cross examination( Section 151of the
Evidence Act). The Act expressly prohibits use of leading questions in examination-
in- chief and re- examination through the proviso of Section 150(1) of the Evidence.
However, with the permission of the court such leading questions can be asked in
both examination-in-chief and re-examination.

Closing arguments in Faith Mueni’s case/other case

The Sale agreement for the land, marked as exhibit B, is clearly only in Alphonse
Muoki's name. There are no Over-ridding interest over the land. The sale agreement
does not contain any information on over-ridding interests. Charles Muema has also
stated that the land transaction was only with Alphonce. This is a case of a kind
hearted person showing mercy to his fellow human being and his act of kindness
taken advantage of. Alphonce did have a short affair with Faith Muoki, which led to
the birth of their son Sebastian. Out of generosity Alphonce let Faith live in his land
since she had no job and also as a way of providing for his son. At the time Alphonce
was not married, he was never known to be married even in the area he worked.
Alphonce does not appear in any of the photos exhibited in court. Neither do the
photos indicate that the people there, were attending any event. Mzee Nyamai who
claims to have attended a wedding ceremony, is a man who has in his age attended
very many ceremonies be it marriage, burial child naming, name it. Therefore it
would be difficult to remember one event out of the many ceremonies he has
attended furthermore that took place more than ten years ago. When Alphonce
married just like any man he intended to settle his family in his land. The period of
12years given to Faith was long enough for her to find employment or a business to
do and not just take advantage of Alphonce Muokis generosity. Faith was given
sufficient notice to vacate which she ought to have done within the 12years.

Trial within a trial – voir dire

Cross examination

Conducted by the opposing advocate to ones witness. Done after re-examination.

Meant to discredit the witness. Questions deal with the credibility of the witness and
accuracy of his statements. Leading questions are asked. Meant to weaken the
evidence of the witness

Examination of Witness

This is the questioning of witness to ascertain the accuracy of their evidence and also
to enable an advocate tell his clients story. There are three ways of examining
witnesses

Examination in chief, cross examination and examination in chief

How do you proceed as an advocate when the court orders you to go for ADR

As an officer of the court, its your duty to respect an order of the court. There are
situations where matters are referred to arbitration under an order of the court. This
happens where the parties may during the proceedings or hearing at any stage of the
hearing agree to have any dispute between them referred to arbitration. A matter
may be referred to arbitration by the court in exercise of its own discretion so as to
enable it to make a decision. Reference to arbitration as set out in a prior agreement
between the parties is different from where parties agree in the course of litigation to
take the same to arbitration, but the parties must inform the court.

Do an examination in chief using open ended questions (for the complainant)

How do you conduct a client interview

Application in conflict of interest

Advocate client confidentiality rationale

What is jus cogens? Name the rights that have attained the level of jus cogens in Kenya
What are the principles of customary international law.

How many schedules does the constitution have

Fair trial v fair hearing

Dualism v monism and where Kenya stands

Tell us about Lilian S v Caltex

Difference between adversarial and inquisitorial systems

Instances where Kenya has borrowed from the inquisitorial system

Explain to us the Trial Process.

Court appearance

Application for Bail/bond

Plea taking

● Guilty - proceed to conviction

● Mitigation

● Judgement is read

● Sentencing

- May also be sent for a mental examination

● Not guilty - Proceed to the trial

Trial

● Prosecution’s case section 307 of CPC

Ruling is normally given at this point.

● Defence case. Accused has 3 options:

○ Give unsworn testimony

○ Giving sworn testimony - may be cross-examined

○ Remain silent and wait determination of the court

Close of proceedings

Judgment and sentencing

Decree
What are jus cogens? Name the rights that have attained the level of jus cogens in
Kenya

Jus cogens (or ius cogens) is a latin phrase that literally means “compelling law.” It
designates norms from which no derogation is permitted by way of particular
agreements. It stems from the idea already known in Roman law that certain legal
rules cannot be contracted out, given the fundamental values they uphold

In Kenya they are found under Article 25;

1. Freedom from torture

2. Freedom from slavery

3. The right to fair trial

4. The right to an order of habeas corpus

What are the principles of customary international law

In Article 38 of the Statute of the International Court of Justice, the Court is obliged
to examine “international custom, as evidence of a general practice accepted as law,”
two parts of customary int law:

1. The practice of States. What might we examine to determine whether states are
engaging in “uniform practice”? We may, for example, consider how states act in
their diplomatic relations, and what sorts of official statements of policy are made. It
is worth emphasizing here, that for a practice to be considered customary
international law, it does not have to be universally followed, but must nevertheless
have obtained widespread acceptance.

2. Opinio Juris. How do we determine whether states act from a sense of legal
obligation or rather from a sense of courtesy or mere habit? As the comment to the
Restatement of Foreign Relations Law § 102 indicates, it may be difficult to ascertain
when this precise shift takes place, when a state acts not merely from custom but
from a sense of legal obligation. Such a sense of responsibility may therefore be
implied from a state’s acts or omissions

Examples:
 1. The doctrine of non refoulement

2. Immunity for visiting head of states

What is the general interpretation Act and what does it contain

An Act for the interpretation of written laws other than the constitution. It has
several rules:

 Literal rule
 Golden rule
 Mischief rule

What do you look at during case analysis?

1. Gather facts

2. Analyse the facts

3. Search and analyse the law

4. Formulate legal theories

5. Analysis cases and statutes

How do you deal with bad facts during case analysis

1. Use them to your advantage

2. Admit them

3. Ignore them

What is Confidentiality?

The obligation on the advocate to keep the client’s information private

It arises where advocate;

1. Has a corresponding interest in the subject matter

2. Issue conflict

3. Successive representation

4. Simultaneous representation
 5. Expected witness

How do you ensure there's confidentiality of a client in an office.

 During client interview, reminding the client that info given in confidential
 Chinese wall concept.
 Extend confidentiality training to legal and non legal staff
 Ensure safety of documentation (Filing system)
 Different departments

Steps of writing opening statement

1. Introduce yourself and your colleague.

2. Case theme, what are we doing?

3. Case theory- Facts and be persuasive

4. Show the evidence you will rely on

5. Good fact bad fact

6. Prayer

Sample:

Prosecution

May it please the court, your honour I am Hussein Yasin, the prosecutor and on the
defence, side is Ms. Ndung’u for the defendant. We are here today for the trial of Mr.
Desmond Peter. This is a case of robbery under sec 295 of the penal code. Your
honour the City of Hippo and in particular the Municipal market has in recent times
been marred by insecurity.

On the evening of 1st May of 2009, at around 5 pm Ms. Louisa Singano and her
sister Theela Singano were shopping at the Municipal Market. After they were done
shopping, they noticed two young boys following them, once they reached Browns
Road a young man informed them that they were being robbed and to their dismay
when they turned around Louisa found her bag being torn using a razor blade. She
saw two boys running away, the boys were clad in brown pants and one had a white
shirt and the other a blue t-shirt.

Luckily one of the traders Mr Mohammed was able to subdue one of the accused.
Your honour that accused happens to be present in the court today. (points to the
accused) There is a need to ensure there is safety for all citizens to freely shop in the
market. In the course of the trial, we are going to prove the ingredients of robbery.
We have reliable witnesses, lined up will that include Persons present at the scene
witnesses and investigative officers. Your honour, despite the fact that Louisa was
not able to get a glimpse of the accused person, luckily, he was immediately
apprehended and she identified him immediately. The prosecution intended to
prove that the accused indeed had the intention. Your honour we pray at the end of
this trail, the court to give a verdict of guilty.

Defence

May it please the court, your honour, I am Aisha Ndung’u, counsel for the
defendant, and for the prosecution, is Mr. Yare. We are here today for the defence of
the accused, Mr. Desmond Peters of the charges of robbery levied against him. Your
honour, this is a case of mistaken identity. My client works as an advertiser to his
uncle, Joseph Peter who is a petty trader who sells second hand clothes. On that
evening, as My client was going about his business, he saw one young boy pass a
bag to another and the young boy started running. To his shock, my client was
apprehended by Mr. Mohamed. My client and Mr Mohamed work in the same
market, and they had an unresolved dispute, where Mr Mohamed threatened to
arrest my client the day before the robbery. Your honour, we intend to prove that
indeed at the heart of this mistaken identity case, is the grudge between him and Mr.
Mohamed, who apprehended him. By the end of our case, we shall prove that The
accused is innocent of the charges. We intended to rely on credible witnesses who
were present at the scene. One witness, Mr Edwin Kwaza avers that the robbers in
question were wearing different clothes than those of the accused, and that the
accused was not one of the robbers. (eyewitness evidence) He will further testify that
the stolen item was a plastic bag and not a purse, and that Mr Mohamed and the
accused have an unresolved dispute. Despite the victims identifying my client, once
he was arrested, they were not 100% sure that he was the robber. Furthermore there
is no physical evidence linking the defendant to the crime, and hence this crime
cannot be proved beyond reasonable doubt. Your honour, we pray for the defendant
to be acquitted of all charges.

Opening for Faith Mueni

If it pleases your honour, My name is Wamboi Ndung’u and I appear for the
Applicant Faith Mueni in this matter. Mr. Hussein appears for the Respondent. the
matter is coming up for hearing. Your honour, this a case of a good man turned bad/
clear exploitation.
You honour Faith Mueni, the Applicant, is a 35-year-old mother of 3. She has been
married to Alphonse to the last 12 yrs. she has been a faithful wife throughout their
marriage. She has been a dedicated wife who has made it her life’s goal to
contributed enormously to the welfare of the family both financially and
emotionally. To prove that the applicant was married to Alphonse, your honour, we
will rely on the sworn statement of Mzee Nyamai who an expert in Kamba
customary marriages is. He was part of the panel of wazee who were negotiating
with the groom’s side. Secondly to prove that Faith Mueni contributed to the
purchase and development of the property we shall rely upon the testimony of John
Obama who was asked by Alphonse to help with some construction in a shamba that
Faith and Alphonse bought together, through the trial the defendants will try to
depart the relationship between Faith and Alphonce as a brief sexual liaison,
however, we will demonstrate to the court through our witnesses that the 2 were
indeed married and had 3 children during the subsistence of their marriage.

Your honour, we pray that the court declare;

1. That she is a spouse

2. That the property is matrimonial property

3. That the law apportions the Applicant her equitable share of the farm

4. Lastly, that the court blocks her eviction from the farm

Opening statement for Alphonce Muoki

May it please your court, my name is Hussein Yasin and I appear for the defendant,
and my colleague is Ms. Wambui Ndung’u who appears for the plaintiff. Your
honor, the gist of this matter is that the applicant is indeed a tenant and was at no
time married to the defendant.

Your honour, in 2006, the defendant through hard work and dedication purchased a
piece of Shamba from a friend using his own funds and a bank loan. My client, being
a responsible father and not one to abandon his paternal responsibilities, offered to
provide for the petitioner and their child Sebastian. The defendant provides for the
petitioner and their son by allowing them to stay in his shamba briefly after the
petitioner lost her job. My client’s humanitarian nature, which is now his downfall,
was thus abused

We intend to provide Title deeds and copies of the sale agreement of the shamba,
which prove that My client is the sole owner of the piece of land. We shall also rely
on credible witness statements from Charles Muema, who was the initial owner of
the land and Alice Gachungwa, the defendant’s legal wife.

Through the trial, the plaintiff will claim that She is married to the defendant via
customary law but we retaliate that the defendant only had a brief sexual liaison
with the plaintiff, which developed to a tenancy-landlord relationship. Faith Mueni’s
case, Faith Mueni’s advocate may highlight “My Lord, the other side may try to
allude to the fact that my client does not have her expense diary to prove that she
was indeed taking care of the household and farm expenses. However, in as much as
that is true, Alphonce intentionally took the diary to avoid being accountable.”

We pray that the court dismiss this frivolous, vexatious application with cost and
uphold the legal eviction of the plaintiff from the farm.

Closing arguments City of Hippo V Desmond Peters

Your honour this is a close and shut case of robbery. Through the trial, we have
proved, beyond reasonable doubt, that the accused is guilty of robbery. We have
been able to adduce both his mens rea and actus reus. To break it down simply, the
prosecution has shown that indeed the accused stole a purse and snatched the purse
away from the witnesses after cutting it with a razor blade.

Your honour, in the course of the trial we have been able to conclude the following
facts:

1. Credible witnesses who placed the accused at the scene of the crime.

2. Mr said Mohammed, a community champion who immediately apprehended

the accused

3. A positive identification of the accused immediately at the crime scene in the

presence of police officer Thomas Phiri.

Your honour, through the trial, it has been clear as day that the accused is a petty
thief, who happened to be around the crime scene at the time of the robbery. As the
prosecution, we believe that indeed we have captured the real robber. The
prosecution is interested in ensuring that our markets are safe for all and sundry. For
the protection of the greater public, it is important to eliminate threats to safety and
security such as the accused.

We pray that the court finds the accused guilty of the crime of robbery and sentences
him as the court deems fit.
Closing arguments for Desmond Peters.

May it please the court, this is a clear case of mistaken identity. The defence has put
forward its best foot by showing through the trial that indeed my client is not guilty
of the crime of robbery. The prosecution has failed to discharge its burden and prove
that my client is guilty of robbery beyond reasonable doubt. The defence, through
the trial has proved that:

1. My client/ Desmon Peters was inaccurately identified by the witnesses

2. My client/ Desmond Peters was apprehended by a witness who was bias and
was settling a personal score. The same witness attested that he found the
accused in a relaxed state going about his business

3. My client/ Desmond Peters was alleged to have stolen a purse, but witnesses
present at the crime scene stated that it was a plastic bag.

4. Furthermore, during the trial the prosecution has failed to show that
Desmond Peters was in possession of the stolen items.

Your honour, the accused has maintained his innocence throughout the trial. The
defence has indeed shown that Said Mohamed, a key prosecution witness, had a
personal vendetta to settle with Desmond Peters and had previously threatened jail
term. We further infer that despite my client providing an alternative suspect in his
testimony Mole, the prosecution took no steps to investigate the lead. Your honour
we believe the charges against my client are malicious and bias.

With malice toward none, with charity for all; with firmness in the right, this
Honourable court should acquit my client for lack of evidence of the alleged crime.

Closing Arguments Faith Mueni

May it please the court, Your honour, this is a clear case of exploitation and evasion
of spousal responsibility.

Throughout the trial:

1. The plaintiff called on an expert witness who demonstrated the existence of a

valid Kamba customary marriage.

2. During the course of the marriage, the plaintiff bore three children on behalf
of the defendant.
 3. The plaintiff has also proven both monetary and non-monetary contribution
as per Sec 2 of the matrimonial property act.

4. The plaintiff has also shown how she supported the family while the
defendant paid off the loan, and hence directly contributed to the purchase of
the land.

Your honour, we infer that the defendant is evading his spousal and parental
responsibilities. He has taken active steps to discredit the plaintiff by hiding her
journal book. He is also attempting to deny the plaintiff of her equitable right to the
matrimonial property after trading her in for a younger wife.

Your honour, Matrimonial laws in Kenya exist to protect vulnerable women and
children. Marriage is sacrosanct, and as such we should not easily encourage any
spouse to evade their moral and legal responsibilities. As such, we pray that the
court finds an existence of valid marriage between my client and the defendant,
declare her equitable entitlement to the shamba and stop the pending eviction.

What is conflict of interest?

A situation in which the concerns or aims of two different parties are incompatible
(competing interest)

Clause 96 of LSK code of professional standards provides that a conflicting interest is

an interest which gives rise to substantial risk that the Advocate's representation of
the client will be materially and adversely affected by the Advocate's own interests
or by the Advocate's duties to another current client, former client or a third person

Instances of conflict of interest

1. Simultaneous Representation-this where an advocate is representing two

clients who happen to be adversaries in a given suit. Case -King Woolen Mills
v Kaplan & Stratton
2. Successive Representation - This arises in instances whereby, the matters of
the former and current client both represented by a particular advocate are
related and the advocate would risk breaching confidentiality by representing
the current client.
 3. Issue Conflict - An advocate represents two clients in different cases and
arguing a legal position in one which may have negative consequences for
another if the cases are pending in the same court.
4. Expected Witness - Where an advocate is likely to be called as a witness in a
case that involves their former clients’ interests, the advocate may be
disqualified for acting in that manner. No advocate may appear as such
before any court or tribunal in any matter in which he has reason to believe
that he may be required as a witness.

Tell us what you know about judicial recusal

Can judicial recusal be used as a tool by advocates to waste the court's time?

The repugnancy clause in the Constitution Of Kenya.

What is jurisdiction?

Types of jurisdiction?

What happens if a court has no jurisdiction?

What is a fact?

What pleadings are filed after a person has filed a defence?

Give Opening Statement in rape case

The Prosecution Side.

"Your Honour I am Mr. Canon Kings acting on behalf of the State and on the defense
is Mr. Ogara David representing the accused, Mr Ouma Ronnie. We are in court
today to charge Mr. Ouma, the accused with the offense of rape contrary to Section
3(1) of the Sexual Offences Act. Your Honour this is a case about rape. Your Honour
it is the right of each and every individual to have their dignity upheld by virtue of
them being human. It is inherent for every person to be valued, respected and
treated ethically. This transcends further to the sexuality of every individual but this
is not the case for the accused. The accused decided to utterly disregard the dignity
accorded to the victim(s) by forcefully and willingly coercing the victim(s) into
engaging in sexual activities/relations without their express and voluntary consent.
The accused failed to uphold the sexual dignity of the victim. During this trial, we
are going to paint a picture of how the violent and criminal sexual needs of the
accused were put over and above the dignity of the victim. Your Honour we are
going to probe beyond reasonable doubt that the accused is guilty of rape. To prove
this we are going to call to the stand, four witnesses. The investigation officer, Mr.
Ule Mmbaya who is the officer who arrested the accused. Secondly, Dr Amin
Madawa who is going to give medical evidence to ascertain that indeed the accused
raped the victims. We are also going to call Ms. Kizimba Terani, the ex-wife of the
accused who will potray a violent and sexually starved picture of the accused. Lastly
will be Ms. Jada Robie who is the daughter of the accused who was present in the
house where the incident occurred. The defense is going to contend that the accused
and the victim had an intimate relationship over the years. What they will fail to tell
you is that consent is very important regardless of whether there was an intimate
relationship between the two. Your Honour at the end of this case, we are going to
prove that the accused is guilty of rape hence we are seeking a conviction. Thank
You"

What is pretrial advocacy

● Proceedings that take place before official hearing begins and its objective is to
clarify points of law and fact

Process of trial

● Opening statement

● Examination of witnesses all types

● Taking down evidence

● In a criminal trial there'll be a ruling on whether defendant has a case to

answer (Submission of a case or no case to answer.)

● Closing argument

Duties of a trial lawyer

● Confidentiality

● To disclose conflict

● Keep client informed

Qualities of a good trial lawyer

● Tenacity

● Hard Work
 ● Objectivity

● Credibility

● Diligence

Provision in the advocates Act on working under an advocate before one opens his
or her firm

Section 13 of the Advocates Act - a person qualifies to be admitted to the bar after
having worked for not less than two years under an advocate that has been in
practice not less than five years.

What kind of questions do you ask in exam in chief

● Based on the issues that arose in the cross examination. The object of
examination in chief is to elicit facts that are favourable to the case of
the party calling the witness. In other words the exam in chief is when
you question your first witness. Sometimes the plaintiffs themselves.
Normally they will be giving evidence that will be favourable to their
case.

● Do not ask leading questions

● Ask one fact at a time

● Questions may begin with: what, where, when, how, which

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  Charging reasonable fees

ADMINISTRATIO
 Teach law in order to educate the public
N OF JUSTICE
 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  Courtesy and respect

OPPOSING
 Honesty and fair dealing
ADVOCATE
 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.

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:

o 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

o 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

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.

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

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:

 o Description of the nature of the case  facts;

o Issues arising in the case;

o The evidence sought to be presented;

o The applicable law;

o The witnesses who will be called; and

o The remedy that is being sought

 Functions:

o 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

o 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 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

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

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
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:

o Joint implementations  Article 6

o Clean Development Mechanisms  Article 12

o Emissions trading  Article 17

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

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:

o One must visit the Registrar General’s department and have a copy of
the deed poll drafted

o Sign the new name in the presence of the Justice of the Peace

o Take the document to the Tax Department and have it stamped for
payment of duty

o Return the stamped document to the Registrar General’s department

for recording

o The new name is then gazetted

Difference between adversarial and inquisitorial systems.

 Adversarial systems:

o Common law countries use an adversarial system to determine facts in

the adjudication process

o 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
 o 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:

o 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

o 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

o 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