GBB Advocates

JUST DO IT!!!
If it were to be easy… then everybody could have already done it.

An option not to do something is the worst nightmare for any starter. For whatever reason, starters always have that option to quit, dillydally, give up or just be lazy. Because either way, you think you’re in charge and/or comforted by the common cliché that the business environment in Kenya is not very conducive and/or that everyone is in tough economic times. In 2024, Just do it! Regardless…

Last year, we Accflaw Kenya Kenya and G. B. Bosire and Company Advocates(GBB) really tried to stay afloat… In 2024, we are doing it… bigger and better. It was my first year out of formal employment – with zero expectations to get a salary end month. A big bunch of my savings went into setting up the firm and for those in Nairobi, you know what this means. For a minute, you get a very strong urge to just fold up everything and go back to your end month pay… your employed friends never make it any better coz it is then that they want to meet up with you to pop up that expensive champagne and break bread. But then quitting wasn’t an option because that is not what the spirit wants – the spirit was stronger than the body. Even worse, no client can trust a broke, indecisive and/or seemingly miserable lawyer. So you need that bold look in the face… good suit and look like you have everything not just in control but deliver to the required standards. And with that, we made it. The vision is alive and kicking.

My biggest take-home was that problems, fears, imaginations, desires, disappointments, pressure and high moments will always be there. They shouldn’t be a reason for you to quit. Just stick to the plan, focus and do it. This is solely because what doesn’t kill you… will definitely make you stronger. Now that you’re still breathing… keep moving.

As we start the year, I must just thank all my friends, clients, business associates, partners, colleagues and seniors in the profession who always came through last year. Thanks for believing in our dream and supporting our vision. We can’t wait to just do it with you once again.

Happy new year folks and let’s get started.

Together with Ochiel J Dudley, MCIArb, we are currently in court to challenge the Constitutionality of Section 77 of the Penal Code CAP 63 Laws of Kenya. The Section provides for an offence of Subversion.

The Petitioners, who include Katiba Institute (KI), Law Society of Kenya, International Commission of Jurists, Bloggers Association of Kenya (BAKE), Kenya Union of Journalists, AfriCOG, ARTICLE 19 and Kenya Human Rights Commission, were triggered by the arrest and subsequent arraignment of among others, one Joshua Otieno Ayika, the 1st interested party, for the offence of carrying out Subversive Activities contrary to Section 77 (1) (a) of the Penal Code CAP 63 Laws of Kenya. This was in the wake of the recently experienced demonstrations organized by the opposition.

The Particulars of the Charge are that on the 16th day of July 2023 at unknown place within the Republic of Kenya using his verified Twitter Account he posted subversive words to wit, “I am not a prophet, neither am I a soothsayer but get it from me, in between Wednesday – Friday next week, we might have the army taking over from this “Biblical Regime”. Prepare for an army to take over government for the next 90 days then we shall have elections” , the words which were prejudicial to the public order and security of Kenya

It is our case that the impugned section violates several constitutional provisions including the freedom of expression under Articles 33(1); freedom of association under Article 36; and the principle of legality espoused in Article 50(2)(n) requiring any law which limits a fundamental right and freedom not to be vague or over broad.

Further this law is colonial and retrogressive as it is whimsically enforced against those perceived to be critics of government.

Government sued over colonial law used to prosecute Azimio leaders It was introduced in 1960 in Kenya to deal with those who were opposed to the colonial government.

Legal Alert!!!

MANDATORY INDETERMINATE LIFE SENTENCE/IMPRISONMENT IS UNCONSTITUTIONAL, The Court of Appeal at Malindi decrees.

In Criminal Appeal No 12 of 2021; Julius Kitsao Manyeso vs. Republic, the court stated that indeterminate life imprisonment is unconstitutional because it denies a convict the opportunity to be heard in mitigation.

The Court was of the view that the reasoning in Francis Karioko Muruatetu & Another v Republic [2017] eKLR equally applied to the imposition of a mandatory indeterminate life sentence in that unlike those facing lesser sentences, life imprisonment denies a convict being sentenced the opportunity to be heard in mitigation.

This, the court found, was an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution. In addition, it held that such indeterminate life sentence was also inhumane treatment and violates the right to dignity under Article 28.

For that reason, the court partially allowed his appeal and set aside the sentence of life imprisonment imposed on the Appellant and substitute therefor a sentence of 40 years in prison to run from the date of his conviction.

This decision can be used as a double-edged sword. On one part, it protects convicts who, during mitigation, deserve clemency and make case for a less severe punishment. On the other part, it is prone to abuse. Part of the reason why these penalties are cast in law is to avoid disproportionate and unjustified disparities in respect to sentences imposed to offenders who committed same offences. Being a country where impunity is rather a norm than it is an exception, what stops judicial officers from bypassing the dictates of the law, in serious offences that the society abhors? Could it help if we amended our laws to cap the number of years that should amount to life imprisonment?

Nevertheless, the decision sparks the needed conversation on enforcement of human rights and upholding constitutionalism.

I am 9 months into my private practice and can tell you this:

1. Normal Kenyans don't appreciate that you were suffering for 6-8 years to be an advocate. They always come to you as though they have an option.... those shortcuts...

2. Those who appreciate your help will want you to do it free of charge... i.e. probono. They wonder why you demand payment first.

3. Those who want to pay you see no reason to until you're done with a case, at least 3 years later. Maybe taking a heavenly breath till then.

4. A majority, especially the other gender, want their problem to be your problem. They wonder why you can be very cordial to their nemesis!!! They wonder why they should pay you especially when they get an unfavourable judgment/ruling.

5. You'll do better if you're from a background that understands what the law is or at the bare minimum, have some businesses to protect. Others wait to call you wakili and request favours. As a starter, you need a very strong support system.

6.Being a lawyer is about your brand, the perception the public has about you and how you present yourself. Nobody wants a poor, clueless and/or suffering lawyer.

7. Very few people are generous with information. For you to do well, you need seniors who will hold your hand and help you navigate these streets. A majority will either brush you off or wonder why you started your practice at a 'tender' age. The contempt in their faces... weeeeh!!!

Here is how to deal with these issues:

1. Don't give a damn. Unless they pay, don't help. People, especially your friends, must appreciate that you're doing law as a business. You must earn from it.

2. Never feel intimidated. I have chased away very many potential clients who always come with that common cliche, "I have a friend downtown who'll do this for 200/-." Why didn't they go there in the first instance?

3. Make it clear from the onset, if you're doing pro bono, let it be so. If you're billing the client, don't undercut. He will go all around telling everyone how cheap you are and bring you 10 cheaper clients.

4. People don't like excuses, live by your word!!

5. On litigation matters, be very careful! Many clients want to hurriedly pay you peanuts then stick around your neck, nagging you everyday for five years. Personally, I don't bill a one-off cost. Ensure that everytime the file needs your attention, it has some money available.

6. As a starter, transactional lawyering will help you sustainably run your office. They are a quick fix. The Court systems in Kenya are quite unpredictable, and can take ages... They usually disappoint when you least expect.

7. Above all, hold on, take a deep breath and keep pushing. Resilience and determination ultimately pays.

It is quite fulfilling to practice law. We keep learning everyday. Now we must earn from it.

Good morning folks.

JUDGMENTS OF THE SMALL CLAIMS COURT, RENDERED AFTER THE STATUTORY LIMIT OF 60 DAYS ARE NULL AND VOID!

In the case of Kartar Singh Dhupar & Company Limited v ARM Cement PLC (In Liquidation) (Civil Appeal 129 of 2022) [2023] KEHC 2417 (KLR);
The High Court of Kenya held that the Jurisdiction of the Small Claims Court as provided for under Section 34 of Small Claims Court Act is time bound and limited to 60 Days.

In doing so, the Learned Judge, interestingly, observed as follows:

1. It is undisputed that there existed a valid contract between the two parties as evidenced by email correspondences between the parties and their admission.

2. The Respondent did supply the cement and the Appellant made only part payment leaving the balance of the amount claimed in the Respondent’s Claim as KES. 629,599.21 as found by the trial court. The High Court saw no error in law or fact in the analysis as held in the judgment.

3. Though the Respondent did not directly contribute to the lapse of time, it acted as though oblivious of the timelines and therefore raised no objection to the delays and adjournments.

Methinks that the judgment is made per incuriam. This because of the following:

1. It sacrifices substantive justice and appraises procedural technicalities contrary to the Provisions of Article 159(2) (d) of the Constitution of Kenya.

2. It defeats the very purpose of establishing the Small Claims Court especially regarding fairness and simplicity of the process.

3. The Court's reliance to the Aprim Consultants Case is distinguishable. The Aprim Consultants Case relates to a different legal regime i.e. Public Procurement and Assets Disposal Act, which has a direct impact to the public good/interest.

4.Why should the blame only fall on the Respondent and not the Appellant yet they caused the delay by failing to file the response and abide by the directions given by the trial court towards expeditious disposal of the matter? What stops other litigants, like the Appellant, from deliberately delaying the course of justice so as to ensure that a Judgment, however substantively sound it may be, is delivered outside the statutory timelines? All parties, including the court ought to be aware of the timelines.

In my view, there ought to be a reasonable test in such cases. A four - day delay in delivery of judgment, as in this case, cannot and should not be this fatal, especially when such decisions are final!!! We can do better. What do you think?

WHEN DO YOU DEDUCT AN EMPLOYEE’S WAGES OR SALARY?

“No employer shall make a deduction from the wages payable to an employee as an advance of wages in consideration of, or as a reward for, the provision of employment for that employee, or for retaining the employee in employment.”

Section 19 (2) of the Employment Act No 11 of 2007

The Employment Act of Kenya prescribes what an employer may deduct from the wages of his employee. The Act limits the employer’s decision to deduct wages to:

(a) any amount due from the employee as a contribution to any provident fund or superannuation scheme;

(b) a reasonable amount for any damage done to, or loss of, any property occasioned by the willful default of the employee;

(c) an amount not exceeding one day’s wages in respect of each working day for the whole of which the employee absents himself from the work without leave or other lawful cause;

(d) an amount equal to the amount of any shortage of money arising through the negligence or dishonesty of the employee whose contract of service provides specifically for his being entrusted with the receipt, custody and payment of money;

(e) any amount paid to the employee in error as wages in excess of the amount of wages due to him;

(f) any amount the deduction of which is authorized by any written law for the time being in force, collective agreement, wage determination, court order or arbitration award;

(g) any amount in which the employer has no direct or indirect beneficial interest, and which the employee has requested the employer in writing to deduct from his wages;

(h) an amount due and payable by the employee under and in accordance with the terms of an agreement in writing, by way of repayment or part repayment of a loan of money made to him by the employer, not exceeding fifty percent of the wages payable to that employee after the deduction of all such other amounts as may be due from him under this section; and

(i) such other amounts as the Minister may prescribe.

(3) the total amount of all deductions that may be made by an employer from the wages of his employee at any one time should not exceed two-thirds of such wages or such additional or other amount as may be prescribed by the Minister.

(4) All statutory deductions deducted by an employer must be remitted within the time period and other requirements specified in the law.

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RESORTING TO WIZARDRY TO INVESTIGATE AN ALLEGATION IS AN UNCONVENTIONAL AND UNLAWFUL ACTION."

Civil Appeal No. 64 of 2020; P.N. Mashru Ltd vs. Dancan Ouma Ojenge.

The Court of Appeal in Mombasa - Kenya confirmed the High Court's award of punitive damages to an employee dismissed on allegation that he had stolen a computer box. According to the employee, this allegation was based on results of the rituals performed by a witchdoctor whose services were retained by his employer.

In doing so, the Court of Appeal held that by resorting to this unorthodox method of investigation, the employer must have intended to achieve more than just vindicating a course of justice.

Nevertheless, the arguments fronted by the Appellant were quite Interesting. The Judgment brings afloat serious procedural missteps done by the Appellant which should be an eye opener to any litigation counsel.

The Appellant failed to call a witness to present evidence in court when the matter came up for hearing at the High Court. Instead, the parties recorded a consent in which the witness statements and the documents filed by the Appellants were to be admitted and submissions made thereon.

The Court in disregarding the Consent held that a consent that leaves the court in a dilemma on how to make a final decision ought not to be countenanced. It stated as follows:

"Where this Court is placed in a situation where it is unable to test the veracity of the statements filed due to a procedure adopted by a party, this Court cannot fault the Trial Court if it decides to believe the evidence whose veracity was tested before the Trial Court by a witness whose demeanour the Court was able to assess as opposed to cold-print statements."

The court proceeded to advise parties and their legal advisers to be cautious and use short cuts only when they are absolutely sure they won’t land in a ditch.

It is a daunting task to proof wizardry keeping in mind that it is a criminal offence. Had the Appellant presented a witness during trial, the findings of the Court could have been significantly different.

Enjoy the read!!!

COMPELLING STUDENTS TO ATTEND RELIGIOUS ACTIVITIES CONTRARY TO THEIR RELIGIOUS BELIEFS IS A VIOLATION OF THEIR RIGHT TO FREEDOM OF RELIGION UNDER ARTICLE 32 OF THE CONSTITUTION OF KENYA, 2010.

In Civil Appeal No. 173 of 2020; Philip Okoth (Suing as next friend of A.A., I.A., B.A., F.A, G.O., S.N., I.O., W.T., & P.S.) & The Law Society of Kenya vs. The Board of Management St Annes Primary School, Ahero and Others, the Court of Appeal sitting in Kisumu declared that the school rules and regulations that provide for a mandatory 30-minute Mass every friday morning for all children, irrespective of their religion beliefs, are indirectly discriminatory, unconstitutional, and invalid.

Further, the court declared that the action of the school in expelling the 1st appellant on the basis of her religious views amounted to indirect discrimination and constituted a violation of her right to education and dignity.

In this case, the appellants, who were of the Jehovah Witness faith, had petitioned the school against the compulsory attendance of non-classroom interfaith activities, which they deemed adverse to their freedom of religion. However, the school’s board of management dismissed their concerns and determined that all students in the school were bound by those rules and regulations.

Thereafter, the school expelled the 1st Appellant for refusing to attend the mandatory 30-minute Catholic Mass every friday morning She was later re-admitted on condition that she would attend the Mass, and was made to sign a declaration to that effect.

In allowing the appeal, the Court held that the school would not have suffered any hardship by exempting the appellants from the 30-minutes Friday Mass. In compliance with the concept of reasonable accommodation, the school ought to have adjusted its rules to enable all students to practice their respective religions while still complying with the school rules and regulations.

In doing so, the Court reiterated its early decision in Mohamed Fugicha Vs The Methodist Church in Kenya ( Suing through its registered trustee) & 3 Others [2016] eKLR where it held thus:

"We do not accept that schools are enclaves that are outside the reach of the sunshine of liberty and freedom that the Constitution sheds. Students do not abandon their constitutional rights when they enter the school gate to regain them when they leave. Nor can fundamental rights and freedoms be contracted away in the name and at the altar of education. Schools cannot raise an estoppel against the Constitution. No one can. We are firm in our assessment that students in Kenya are bearers and exercisers of the full panoply guarantees in our Bill of Rights and they are no less entitled to those rights by reason only of being within school gates.”

I find this judgment well reasoned, it is meant to protect the minority from policies, rules and regulations that seem neutral and acceptable by a majority but are in fact, indirectly discriminatory.

The Supreme Court of Kenya has settled the debate on the indefeasibility of a title owned by a person claiming to be a Bona fide Purchaser for value.

In Petition No 8 (E010) of 2021; Dina Management Limited vs. County Government of Mombasa, Chief Land Registrar and Others, the Court stated as follows:

"Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible. The first allocation having been irregularly obtained, H.E. Daniel Arap Moi had no valid legal interest which he could pass to Bawazir & Co. (1993) Ltd, who in turn could pass to the appellant.

Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under Article 40 of the Constitution. The root of the title having been challenged, as we already noted above the appellant could not benefit from the doctrine of bona fide purchaser.

We hasten to add that, the suit property, by its very nature being a beach property, was always bound to be attractive and lucrative. The appellant ought to have been more cautious in undertaking its due diligence..."

This judgment reiterates on the need to be more cautious when buying property. It is not enough for the registered proprietor to hold a title deed. You must proof that you acquired an absolute and indefeasible title through an allocation that was legal, proper and regular. That is why you need us to safeguard your interests from the very beginning.

LEGAL UPDATE

The Chief Justice and president of the Supreme Court of Kenya, Martha Koome has vide Gazette Notice No. 5476 dated 24th April 2023 published Practice Directions Relating to Pending Court Claims Regarding Compensation for Work Related Injuries and Diseases Instituted Prior to the Supreme Court Decision in Law Society of Kenya vs. Attorney-General and Another, Petition No. 4 of 2019; (2019) EKLR

In the Directions, The Hon. CJ has directed as follows:

1. All claims with respect to compensation for work related injuries and diseases filed in various courts before the commencement of WIBA shall proceed to conclusion under the Workmen’s Compensation Act, Cap 236 (repealed).

2. All judgments and rulings relating to work related injuries claims pending before the Employment and Labour Relations Court and the Magistrates Court shall be delivered by the same court.

3. All claims with respect to compensation for work related injuries and diseases filed after the commencement of WIBA and before the Supreme Court decision at the Employment and Labour Relations Courts or the Magistrates’ Courts shall proceed until conclusion before the said courts.

4. All claims with respect to compensation for work related injuries and diseases after the Supreme Court decision shall commence before the Director of Occupational Safety and Health Services.

5. All appeals emanating from the decision of the Director of Occupational Safety and Health Services shall lie before the Employment and Labour Relations Court.

6. Such appeal shall be heard and determined through the appropriate appellate mechanism within the judicial hierarchy.

These directions will unlock the stalemate currently in courts for work-injury compensation claims filed prior to 2017 that have been pending in court for over six years now.

To all our clients, friends, and colleagues. Happy Eid Ul Fitr!!!

https://www.linkedin.com/posts/joshaharonoff_yourcfoguy-finance-startups-activity-7045940633089253376-RfWz?utm_source=share&utm_medium=member_android

Josh Aharonoff, CPA on LinkedIn: #yourcfoguy #finance #startups #accountingandaccountants | 50 comments Debt vs Equity Both can fund your business But each mean something completely different from the other Let’s start with some definitions… ➡️ What does it… | 50 comments on LinkedIn

Grounds for summary dismissal....

To our Muslim friends, May Allah bless you and your family with peace, prosperity, and happiness this Ramadan.

"Teach self-denial and make its practice pleasure, and you can create for the world a destiny more sublime that ever issued from the brain of the wildest dreamer."

Sir Walter Scott

As the day breaks, make it count. Good morning friends.

https://www.businessdailyafrica.com/bd/economy/28-law-firms-to-share-sh560m-presidential-petition-legal-fees-4166010

28 law firms to share Sh560m presidential petition legal fees IEBC hired the law firms to defend its interests in the presidential election petition filed by Raila Odinga against President William Ruto.

Don't be represented by fake lawyers, you'll both end up in jail. Reach out for competent and reliable legal services.
For you to be confident with your case, you need competence!!!

How ‘fake’ lawyer represented clients at Makadara Law courts A suspected fake lawyer has been charged with pretending to be an advocate of High court contrary to section 31 (1) (2) as read of the Advocates Act. Mitchel Jumaboy was charged with pretending to

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Mnaprove love na wallet, na bado ina walet down.