You are on page 1of 46

Media Bill?

To sign or Not to
December 2013 Issue #2

ALSO INSIDE

JUBILEES FAILURE ON ROAD CARNAGE ALLOWING SAME SEX MARRIAGE; PROGRESSIVE SOCIETY THIRD PARTY RIGHTS IN MARRIAGE: A RESPONSE

LONE FELIX

BUILT ON PRINCIPLE, SUSTAINED BY COURAGE

to get what they want; dreaming is never

JUDICIARYS FLOWER ISNT WILTING


Justice is never the blindfolded lady holding a balance scale as the common symbol expresses; rather she has her eyes open to be sure the balance is struck and both parties have clean hands. This has been reflected in the recent happenings in the judicial arm and I am in all giving credit where its due. A lot of scorn of late has been thrown towards the Judiciary of late but me thinks they have been and still are giving out their very best compared to the former self of the judiciary. So if today Hon. Mutunga Willy said Justice is open, transparent and should be accountable , then they would be as fashionable terms as the stud he delivers that statement with; pun intended; apparently, with a few hiccups 2 along. Moving on, success does come to those who know what they want, believes they can get what they want and follow through

enough. So here goes one Mr. Lone Felix, featured in this issue. Some compare him to Hon. Ababu Namwamba, the current BudalangI M.P, for his political ambitions, and being a lawyer to be, coupled with coming from the western province; much coincidences in place but what strikes more about Lone is the humility with which he takes triumph and success, his eloquence and ease to convince masses: find out what he has to say about himself in the candid interview featured. Reaching out to the individuals who took their time and contributed to the making of this issue; its your success at heart celebrated. Keep up the great work Its Real Kenya, Real Issues. Enjoy your read.

REGARDS,

Michael
Michael Opondo O. Managing Editor, KENYAN LEGAL www.kenyanlegal.com

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

CONTRIBUTORS
Grishon Wainaina, K.U.S.O.L Hamida Abass, Strathmore School of Law, Barbara Wambui,K.U.S.O.L Sheila Mokaya, K.U.S.O.L Esther N. Mwangi, K.U.S.O.L Godfrey Aira, K.U.S.O.L Anastacia Kimaku, K.U.S.O.L Otieno Arnold O., K.U.S.O.L Caren Kerubo, K.U.S.O.L Victor Kiamba, Advocate of the High Court Peterson Gitonga, K.U.S.O.L Henry Omukubi, K.U.S.O.L Nelson Otieno, K.U.S.O.L Michael Opondo O., K.U.S.O.L

Cover photo by: Lone Felix, K.U.S.A President, Fourth year law Student, www.lonefelix.com Kenyatta University.

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

Whilst every effort has been made to ensure the accuracy of the information in this magazine, the authors, publisher and editor accepts no responsibility for any loss, financial or otherwise by any person using this publication. Copyright 2013 by Kenyan Legal All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law. For permission requests, write to the publisher, addressed Attention: Permissions Coordinator, at the address mail@kenyanlegal.com or kenyanlegal@gmail.com Copyright protected by:

Creative Commons 2013

www.facebook.com/kenyanlegal

www.linkedin.com/kenyanlegal

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

INSIDE THIS ISSUE


Third Party Rights In Marriage? .................................................................................. 10 Allowing Suicide Would Do Us No Wrong ................................................................... 12 Tribalism Is Far From Over In Kenya ......................................................................... 13 Has The Jubilee Government Failed To Curb Road Carnage In Kenya? ................... 15 Story Of My Life- Lone Felix ........................................................................................ 17 Built On Principle, Sustained By Courage .................................................................. 17 Why Kenya Ought Torecognize The Modern Trend Of Same Sex Marriages. .......... 23 The Controversy That Is The Media Bill ...................................................................... 26 Ukambani Leadership ................................................................................................... 27 The Kidero-Shebesh Altercation Case: Evidential Basis ............................................. 29 Ignorance And ............................................................................................................... 31 Carelessness At A Scope ................................................................................................ 31 A Commentary On The Proposed Marriage Bill.......................................................... 33 Abortion Is Not Murder ................................................................................................ 38 Carlas Diaries ............................................................................................................... 40 Delight In Your Fears .................................................................................................... 41 Artistic True: For The Love Of Pencils ........................................................................ 42 ........................................................................................................................................ 44 Who Am I? ..................................................................................................................... 44 The Publication Team .................................................................................................... 46

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

KENYAN LEGAL FIRST MAGAZINE ISSUE

This is no doubt a great initiative that will not only be a source of contemporary legal information to readers but also create a platform for debate and exchange of views on emerging legal issues and trends. Keep up the good work! Regards, Advocate Ken Melly, via mail, IKM Advocates. Thank you for the copy. I will take a look. Best wishes. Regards Kethi D. Kilonzo, Finc Legal Received. Will have a look and revert in due course Keep it up Counsel! Henry Paul, Kenyatta University School of Law
ON MOOTING

The very nature of an upcoming lawyer is to be able to articulate issues eloquently and coherently. This is achieved by the personal initiative of the legal mind to take up mooting as a hobby. Why a hobby? Research skills are an inevitable part of a lawyers career. Law is a reading course which entails hard toils in the quest for knowledge. You can't evade the mere fact of research. Frequent or enrollment into a mooting club develops your research skills in an aim to making your grasp of the law tight. Frequent research makes the lawyer develop a reading culture and this makes him or her enjoy the entire research process hence a hobby it becomes. The skills of mooting can be achieved by basically joining or forming a law firm while in law school and coming up with a research team that will otherwise form a formidable team for competition purposes. Once one stands before a mock court and exorbitantly conveys his legal arguments before a panel of judges, this increases his grasp of the law and also the level of confidence is pillared upon the fact that he gets used to standing before a panel . THAT IS THE POWER OF MOOTING. Dennis Gicheru Via mail, Second Year School of Law, Kenyatta University.

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

With Barbara Wambui


For all your Legal questions Questions

Ask about Law


From Cohabitation to Marriage
Dear Barbara, I am a 34 year old Muslim lady from the coastal regions living with my Christian husband of two years now. We have a one and half year old daughter together and for the period weve been together have formally met each others parents, but no official ceremony of any sort, traditional or statutory, has been done to seal this union and still yet both of us maintain the same religious orientations we came in with. How valid is our marriage or is it still regarded as cohabitation? Sincerely, Khadija

Dear Khadija, Concerning your marriage, under the Marriage Act it would be held as not valid because it does not recognize unions that have not undergone the formalities prescribed; However, under the Evidence Act, presumption of marriage is recognized as when a man and a woman live together and hold themselves as man and wife to all they interact with, even where they have not undergone any formalities to make it valid, that is, marriage ceremonies of any form. The courts will therefore presume that you are married. A case that supports this is Campbell vs. Campbell (1867) where parties agreed to marry without formal ceremony and it was held that the marriage was by consent. The court therefore holds that long cohabitation as man and wife gives rise to presumption of marriage and only evident on the contrary could rebut such a presumption. Your daughter is therefore also considered legitimate. Regards.

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

Formation of a contract
Dear Barbara, I wish to form an investment partnership with a close friend and we were thinking of putting the agreement down formally on paper just in case problems arise in sharing profits. What are the requirements to validate this kind of contract and do we really have to go before and advocate to take an oath is a witness just as enough for it to be valid? Sam

Dear Sam, The requirements of contracting an agreement have to include: An offer, where the offeror makes a proposal to the offeree and it should also include the terms and conditions clearly stated in the agreement. The offer must be communicated to the offeree for it to be valid and state the way of acceptance as either through mails or any means suitable for the offeror. Secondly, there has to be a consideration which means that anything of value that is given in exchange for goods or services and is used to induce the other party to enter into a contractual agreement. Both parties need to have the capacity to contract: a) Minors (below 18 years) and those mentally ill cannot enter into a contract. b) Consent; mutual agreement must be given fully by both parties with no undue influence whatsoever. c) Legal objective must be there for every contractual agreement, for example, any contract that involves stolen goods etc would be for an illegal objective. Must be written and understood by both parties named in the agreement. This is to clear up any conflict that may arise later between parties. Also referred to as Proper form. A commissioner of oaths would be required if need to take oaths arise otherwise no suit can be brought to court without this requirement. Regards. Barbara Wambui is a third year Law Student at Kenyatta University,Parklands Campus. To comment on this and other articles please visit www.kenyanlegal.com 8 Real Kenya, Real Issues For any questions, clarifications concerning Law please write to Barbara at mail@kenyanlegal.com with reference of Dear Barbara and will be published in the next magazine issue. Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

Review and Debate section

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

THIRD PARTY RIGHTS IN MARRIAGE?


(Response Article to previous Issues Legal Discourse) we can now say that the age for any person to contract a valid marriage in Kenya is by persons of 18 years and above. Why did Michael not consider the definition of child in the constitution despite knowing so well that this is the foundation of all laws and any law inconsistent to it is null and void? Article 260 Constitution of Kenya, 2010 on interpretations a child is any person below the age of 18 years and this article did not mean to nullify or repeal the interpretation as enshrined in the law of succession Act, we have to ask ourselves what the deferent Acts want to achieve. The law of succession is about the next of kin, who should be persons born from deceased and this are called children of deceased and can therefore claim properties of the deceased but that does not make someone remain a child by law just because he his born of someone if it were that way then everyone will be a child but obviously that is not the case. The definition in law of succession is relevant for its purpose. According to childrens Act, an act of parliament dealing with children Section 2 a child is any human being below the age of eighteen. The right of parties to marriage inter alia is consummation. What are the consequences of consummating such marriages of persons below age of eighteen? Sexual offences Act Section 8. Defilement (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

By Godfrey W. Aira, godfreyaira@gmail.com fter reading the article written by Michael Opondo pertaining to third party rights and also concentrated on the marriage age, I stood to object the all reasoning on current legal ground as it stands. Article 45(2) Constitution of Kenya, 2010, Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties. The article has been inserted to achieve two things; the first was to cab the child marriages. The Acts of parliament that we have now are repugnant to modern morality and justice, the marriage Act allows a person of persons under the age of eighteen to contract a valid marriage on consent of parents or any person having lawful custody Section 19 marriage Act and so does the other two three Acts under which marriage are contracted (African Christian marriage Act, Hindu marriage and divorce Act and Mohammedan marriage Act). The constitution in itself repealed such sections and

10

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. If the Act allowed child marriages they would place it has one of the defenses which they havent. The second reason for Article 45(2) CoK is that all adults have the right to marry, also to allow adults to contract marriage without consent from parents or guardians, the marriage laws treated adults of 18-21 years as children. This problem is inscribed in the Acts, they do not allow adults of 18-21 years to freely contract marriage without consent case of Bibi v Bibi E.A.L.R 200 the court granted a guardian to a niece who petitioned for nullity of marriage because the was not of the same social status and consent was not obtained before such

marriage was contracted. The provision was to allow all consenting adults without consent of the third party to contract a valid marriage. Child marriages are illegal in Kenya and a child is persons below age of eighteen and there are punishment attached. All adults as long has you are 18 years are also allowed to marry consent is not necessary and this takes away all the rights third party to marriage had before the coming into force of constitution. These are also the reasons why Kenyan parliament need to pass the embattled marriage bill, the bill is up to date when it comes to contracting marriage, it also consolidates the laws and provides for same age capacity applies to all laws when it comes to contracting marriage.

Godfrey W. Aira is a second year Law Student at Kenyatta University, Parklands Campus. To comment on this and other articles please visit www.kenyanlegal.com Real Kenya, Real Issues

11

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

Legal Discourse
With Michael Opondo O.

ALLOWING SUICIDE WOULD DO US NO WRONG


Well, Kenya today is witnessing suicide incidents on the steady rise; maybe its the psychologists that arent doing their work well, maybe its the family setting in the society on the verge of downfall, or life is just becoming hard altogether; but the hardness of it shouldnt disallow autonomy to be promoted, that is, right to self choice, to live or to die. One thing I wish to put across before I go any further is autonomy is not an enemy of justice, matter of fact, it is sovereignty exercised to the lowest level possible. J.S. Mill once stated On Liberty that The principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of the other is in self protectionthe only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others. Emphasis is on human autonomy. Moving on, why is suicide such a bad thing to the society, my morals are intact but not standard; so, for one to decide suicide is the way to go, Law is supposed to serve man and let man be happy, ask Jeremy Bentham, and rather not orders backed by threats by the ruling government as ANY PERSON WHO ATTEMPTS TO KILL HIMSELF IS GUILTY OF A MISDEMEANOR (Section 226 of Penal Code, cap. 63 Laws of Kenya) ; let persons have their way! To close with, I am of the Consequentalist Theory which posits that whether an action is right or wrong should be determined by its consequences: suicide has no victim and therefore the consequence is nobody loses, isnt that what Law should uphold? Another theory to support would be the Virtue-based Theories which posit that an analysis of motivation and character should inform our evaluation of an actions morality, therefore, if must, in punishing attempted suicide/aiding suicide, the motivation of ones action should inform the whole process; and that to me, is Justice served: Autonomy is not against Justice, just separated friends. Thats my legal discourse, whats your course of thought? Michael Opondo O. is a second year Law Student at Kenyatta University, Parklands Campus, and managing editor of The Kenyan Legal Magazine. To comment on this and other articles please visit www.kenyanlegal.com Real Kenya, Real Issues 12

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

TRIBALISM IS FAR FROM OVER IN KENYA


By Grishon Wainaina

refer to a way of thinking or behaving in which people are more loyal to their tribe than to their friends, their county, or any other social group. Everyone agrees that tribalism is the vice protuberance in the democratic, good governed and human right based policy. In Kenya the hurdle has been rampant during the past three presidential tenures. It has become too obvious that it has been institutionalized and internalized to look like a norm. It is what saw a chaotic, barbaric and archaic lack of human feelings in 2007/2008 post election violence for leadership; Selfish circles of power having conceptualized it into to an accept and move on system in Kenyan context. The wound seemed to heal but was opened by tribal affiliations of Jubilee vs. CORD that saw tribesmen, due to tyranny of numbers, outweighing the CORD coalition. Having hailed to presidency by a tribal based vehicle, president Uhuru Kenyatta and his deputy 13 William Ruto have proceeded with the norm; the arrogance of power. While the supreme law of the land (The Constitution, 2010) Article 232 (1)

ribalism

is

the

state

of

being

(h) advocates for representation of Kenyas divers and communities, and Article 130(2), the composition of the national executive shall reflect the regional and ethic dynasty of the people of Kenya, this has not been the case. The ongoing systematic purge in state jobs and skewed appointments is a proof that there is tribalism in almost all government departs ministries, institution and commissions. The leader of minority Hon. Jakoyo Midiwo recently raised a red flag over the recent changes at key state corporations, and Leaders (Hon. Uhuru Kenyatta & Hon. William Ruto) move to fix their allies to satisfy 50/50 power sharing agreement. Shortly after general march 4 election arrogance of power started. It saw Hon. Mr. Justin Muturi into the speaker of national assembly (a close ally of the president) deputized by Hon. Joyce Laboso to equalize the equation from south rift. In senate Hon. Ekwe Ethuro from Rutos side took the speakership while deputized by Mr. Kembi Gitura again the equation balanced. Notwithstanding that Aden Duale most close ally of Ruto from Kithure Kindiki in senate did. Balance?

organized in or advocate for tribes. In terms of conformity, tribalism may

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

Kikuyunization and Kalejinazation dominated the cabinet. A few blackmailing appointments could have occurred to include non-GEMA and non-KAMATUSA. Plum ministries were given to either kikuyu or Kalenjin and insignificant numbers to occur. In health, President Uhuru ensured Mr. James Macharia took the headship while Ruto clothed Mr. Fred Sogor with principal secretarial-ship (Health). Balanced? National treasury an essential ministry saw Ruto said Mr. Henry Rotich scoop it while Uhuru fronted Kamau Thunge for the principal secretary (Treasury). Devolution a contention docket Uhuru fronted Ann Waiguru whilst Ruto went for John Konchella as principal secretary (Devolution). In Energy and petroleum Ruto crowned Mr. Chirchir the docket while Uhurus Joseph Njoroge, carried the day as Principal secretary. Transport and infrastructure

police service boss David Kimaiyo. CID director Ndegwa Muhoro and chief of the Kenya force General Julius Karangi. AP college commandant Jackson Waweru. In State Corporation, the obvious has continued, Tom Odongo was find as NSSF Managing Trustee, Eva Odour the managing director of Kenya Bereau of Standards was fell and aptly replaced by Mr. Charles Gitahi; a related field Kenya Bereau of standards boss is Karanja. Thiongo, does it represent the diversity of people of Kenya? Think Not. Appointment of Uhurus long time aide, Njee Muturi to a powerful office of spoliator general in June is seen in the light. Why include another kikuyu into the office where its boss is Prof Githu Muigai, register general Ms. Bernice Wanjiku while senior spoliator general is Muthoni Kimani. Managing director of Kenya pipeline, Charles Tanui replaced cellist Kilindwa to cater for the Rutos in July. Talk of Kenyas diverse

department Uhurus Michael kamau won the presidents heart while Ruto fell for John Kipngetich (Principal secretary). Uhurus

prominent scholar Prof. Jacob Kaimenyi saw him value the chalk as a lecture in university of Nairobi for education position while Ruto went for Mr.Bellow Kipsang, Felix Kosgei andneed I name more? No, why name the devious? Chairman of independent police oversight 14 authority Mr. Macharia Njeru, national

communities. Grishon Wainaina is a second year Law Student Campus. To comment on this and other articles please visit www.kenyanlegal.com Real Kenya, Real Issues at Kenyatta University,Parklands

intelligence service Michael Gichangi, national

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

HAS THE JUBILEE GOVERNMENT FAILED TO CURB ROAD CARNAGE IN KENYA?


in the history whereby 42 lives were lost and 33 others injured in Ntulele along the Narok-Mai Mahiu highway. The City-to- City company bus which they were travelling on is said to have heading to Homabay from Nairobi before the driver lost control and veered off the road, rolling a no. of times. The bus was said to have been overloaded with goods and more passengers than required and the driver was over speeding By Anastacia Kimaku annastaciakimaku20@gmail.com ince January this year the death toll has been rising every month and more than 2,000 people have died so far in only less than a year. This is a really shocking figure considering Kenya is known worldwide of having very hardworking and industrious citizens. Road accident has become the topic on everyones tongue since people are mourning their loved ones every single day. The police revealed up to 2,211 people had died by September due to road carnage among them 1,019 are pedestrians, 575 are passengers, 211 are motorcyclists, 205 drivers and 95 pedal cyclists. No matter the seriousness of an accident, it is still a menace that has proved difficult to be handled by both the government and its citizens. The parties involved usually plays blame game therefore no sound solution is found to curtail this menace. Early September this year was when Kenya experienced one of the most grisly road carnage Who really is responsible? Is it the driver who was reckless or the law enforcers who usually turn a blind eye on the faults of the driver or the other road users who just fail to obey the traffic rules and later blame the driver? However most accidents are customarily caused by contributory negligence whereby the complainant fails to take reasonable care of his own safety thereby a contributory factor to his death or injury. This was connoted in the case of Vidya Devi vs Madhya Pradesh State Road Transport Corporation in that there was a collision between a bus and a motorcycle at a road intersection. The motorcyclist was killed instantly. It was held that the bus driver was negligent in not having a proper look-out while approaching the intersection and the deceased was negligent in driving at an excessive speed. Corruption is also one of the major causes especially on the part of the law enforcers. This has been a lifetime crisis on the transport ministry since history. Many traffic offenders get away with breaking the law due to the draconian ways of some individuals.

15

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

However the Government which is made up of 3 arms has really tried to fetter this main problem that is slowly going to claim the lives of many who also constitute of our great future leaders. The Legislature as per Chapter 8 Article 109 of the Constitution of Kenya has already fulfilled its mandate of enacting the Kenya Amended Traffic Act of 2012 which is currently being implemented The Executive as per Chapter 9 of the Constitution is to ascertain that all laws are implemented. This includes the Statutes, Constitution and any International that affects the Bill of Rights. The traffic police as few as they are, are actually trying to implement these laws. The Office of the Deputy of Public Prosecutions which is established under Article 157 and 158 has lucidly instituted criminal proceedings against all the traffic offenders and ensured that they are punished as per the law. Article 27 on the right to life has to be protected and measures have been put in place to ensure violation on the Bill of Rights does not arise. The Judiciary as per Chapter 10 Article 47 has even though not fully ensured free and fair administration of justice. This was witnessed this year when there was the introduction of the mobile courts. It had its demerits butat least justice is expeditious and effective. Justice delayed is justice denied is one of the principles the judiciary is trying to uphold. His Excellency the Governor of Nairobi Dr. Evans Kidero has recently launched a very promising way of doing away with all traffic offenders and that is by introducing CCTV cameras on the street lights. This will ensure that

road users are very careful or end up facing the arm of the law. It has been welcomed with very many different reactions but 90% have shown great interest and are ready to work together with the government no matter the level to control this road bloodbath. What I have realized is that the government acts after the hazard devours. It should be based on the preventive measures to cater for the future. Take for example the recent accident involving the Ummoiner company bus and the train in locomotion, if it wasnt for the accident, people would still be residing along the railway line. This is the time the government has taken judicial notice of the fact that no one should even be found near the line. After the Ntulele accident all city-to- city buses were taken for inspection same applied to theUmmoiner buses. This just shows how the government is unperturbed about issues that are bound to ensue. What Kenyans need is action on the ground not just an action plan yet nothing is achieved. I believe the current vetting process of the police will effectively curb corruption since they will be adjudged as per their credentials and merit. This will enable the other key stakeholders to take this matter seriously and into consideration and plan the way forward since the cries of the orphans and the disabled in the country can be overheard. Anastacia Kimaku is a second year Law Student Campus. To comment on this and other articles please visit www.kenyanlegal.com Real Kenya, Real Issues at Kenyatta University,Parklands

16

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

MAIN FEATURE
The Interview

STORY OF MY LIFE- LONE FELIX


Built on principle, sustained by courage
Interview by Esther Mwangi Published on Permission from Lone Felix(current K.U.S.A President) You might have bumped into one of his writing, or a feature story on him in your popular magazine or seen him on TV. His peers know his as a fast paced walker, mostly in a suit and always in hurry. To those who are close to him, Lone Felix is a relaxed fellow, with a deep sense of humor and a bit shy actually. Esther Mwangi sat with Felix on a Sunday afternoon after his usual Sunday afternoon ritual of playing basketball, with what he refers to as his gang Q. You are always in hurry, why do you walk so fast? (Laughing) I never quite realize that. But when I was nine, I developed severe rheumatoid arthritis and was unable to walk for almost three months. When I got better, I had understood why being able to be on your feet is very important. Ever since then, I started walking quite fast and it became a habit. Q. That would mean that your love for suits also has a story? Not really. I think being in a good suit projects a good image and gives one confidence. Pretty much that is why I do them. Over time, its become what I am associated with. Q. Tell us about your growing up

17

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

I grew up in rural Western Kenya; brought up by a single mother. Life was challenging, walking five kilometers barefoot to school; countless nights of going without food. I however dont think that I was so disadvantaged; thousands of Kenyan children pass through the same problems. And in addition, I had a mother who loved me unconditionally. I would sit and watch her cut trees, or uproot tree stumps to burn charcoal. Yet she always managed to afford a smile. As a kid, such deep love makes you forget hunger and lack. Q. Thats was a tough life by all measures Not really, I have met stories in my life that make me thank God for the experiences I had a child. And in a way, these struggles form the core of my values; they have given me a deep sense of empathy and value for others. Q. If you had a chance to recreate your life, how different would you like your childhood to be? I am unable to answer that question. Sometimes I wish I had a father by my side, but I actually think his not being there made me stronger. It taught me to fight my own battles, to write my own story, to make my own mistakes and correct them. I do not therefore know what I would want different, but I know I would not want to miss in that life the lessons my mothers struggles gave me. Q. Thats the fourth time you are saying mother, would you say you are a mamas boy? If being a mamas boy means loving your mom immeasurably, then probably I am. But when bringing us up, she was keen to ensure that we knew our roles as men. We were to make our own decisions and be responsible. I do not live in her shadow, but her influence in my life is something that will last a lifetime. Q. Tell us about your early schooling? I joined Nursery school in 1994. I remember there was a huge fight before I agreed to go to school. I had my first fight on my second day in nursery, and the madam, her name was Justine, really caned me. I was very tiny then, so I was not allowed to go to class one. The qualification for proceeding was much about being able to pass your left hand to touch your right ear (laughs). So I spend two years in Nursery school, then at age six I joined standard one. In 1999 when I contracted arthritis, so I was out of school for six months and had to retake standard four in 2000. Its also the same year when my dad died.
18

I developed excessive bitterness around that time, in part its because; I had just seen my father three times, and the last time he told me, he would change my school. When he died, the dreams of ever having a father crushed and with it deep hate.

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

Walking home from his school to see his grave each day added to my desperation. Moms struggles at that point intensified, family feuds over property, it was too much to bear. So I moved from Rural Busia to my maternal uncle in Rural Bungoma, a place called Namanze.

With Sauti Sol on the Side Lines of the Annual Leadership & Education Congress

Q. High school? I was offered admission to Friends school Kamusinga. I had struggled and attained 432 marks out of 500. But you see, we could not raise school fees or money for shopping. So I picked the box that my sister had used for her high school and bits of shopping mom had realized then went to school. A donor had pledged to pay my school fees but the cheque would be a day late. So I was turned away. I got the cheque next day, but when I went back to school, I was told when you miss to report the first day, you forfeit your chance. Q. What did that mean to you?
19

It was crushing. At the time it seemed like everything was unfair and it was very hard for me to make sense out of it.

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

Doris Mwendwa (William College USA), Lone Felix and Popular Comedian Churchill Leave after the closure of the Annual Leadership & Education Congress

Q. So what did you do? I sought help from the District Education Office but hit a dead end. I was taken in at Khasoko Secondary School in rural Bungoma. Then in my second form I joined Goseta mixed secondary school then, in Trans-Nzoia. The school accepted me to stay; I was never asked school fees. I think God has a way of helping out. My family could not even raise Ksh. 3600 for KCSE registration; it was the school that paid it for me. The cumulative debt was written off when I registered the first (A) plain for the school. Q. What is the most vivid memory you have of your childhood? On this Wednesday, it was 1997 at the height of a hunger. I got home from school and there was no food. It was perfectly normal. So I changed and went to get some sugar canes. In the evening, when mom came home, she was singing. Whenever mom sang, I would know she was sad. She always hid her misery in songs.

20

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

She told us there was no food, but she had a bit of flour and would make porridge. So I sat on the side extracting juice from sugarcane, we used the juice as sugar. Suddenly she stopped and scoped something from the boiling porridge. I then saw tears in her eyes. She said it was a caterpillar. She had stirred it and basically we could not take the porridge. I followed her crying, and as she poured the porridge to the ground, I held her hand and told her: mom I am hungry, let me just take it. She said, no son, you cant do that; life is much more than a days meal. That line has never left my ear. Q. What was the lowest moment of your childhood? You see Esther, when growing up we faced a lot of challenges. Mom was very determined to see us grow and she did everything. Now when there was totally no food, mom used to go to posho-mills and she would take the flour that had been swept from the floor. And that is what we would eat, now that flour had the smell of oil and had been obviously stepped on by people. Such moments are not as pleasing to any child. Q. It is very hard for anyone to reconcile that childhood, with the person you are now? And I fully understand that. It has been a fight that still continues. My family still struggles; but definitely, today I am able to help though to a limited level. Its not just about my struggles or the prayers and love of my family. It has been abou t very many people who have believed in me; people who have invested their love, money and given me acceptance. My second mom, Kyambi Kavali who paid my form one school fees, my high school Principal Mr. Wasike, My Business Education teacher Ms. Caroline, My friends who took me in their cribs when I had nowhere to go to or guys who pick me when I am to be rushed to hospital or the guy that drops me a Facebook inbox saying I love your work.

Q. How were you as a teenager? (Laughing), just like any other teenager, rebellious a times, obnoxious sometimes. I struggled with all challenges that face any teenager. I was never a perfect kid. Q. Or should I ask, would you like your son to be like you? I would like my son to be himself. If I said yes, I would be imagining that I am anything close to being perfect, if I said no, I would saying I am too ill to wish my son to be like me. I hope they can be themselves. Q. People think you are very stern and rigid?

21

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

That is before perhaps you know me better. I think I am an easy person. In fact, some of my friends cannot understand how people take me seriously. I think I balance out, my public moments come with the restraint required, and my private moments are also relaxed. Q. What is it about you that people do not know? Quite much, I never take a cold shower for example. I have an allergy whenever I take a cold shower (laughs out loud.) And the other thing is that I am very particular about my food. (On that food note, lets close this chapter. One of his closest Friends, Emmanuel vows one thing; he cannot cook anything except coffee for Lone Felix. The boy is actually a good cook.) Esther Mwangi is a student of Economics in Kenyatta University and heads the Communication team at #ReadyforLoneFelix Secretariat.

22

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

WHY KENYA OUGHT TORECOGNIZE THE MODERN TREND OF SAME SEX MARRIAGES.
and consequently the offspring gotten thereof were considered to be the legitimate child of the barren woman by not being operative implies that there was no sexual intimacy between both women, it was only the husband that had sexual intercourse with the woman whom her barren wife had proposed. Then one need to ask the question, why this By Peterson Gitonga, entire hullabaloo about the recognition of samesex union while they have traditionally been ften-times when one brings up a discussion pertaining same- sex marriage it opens a Pandora box of The journey for legalization of same sex union can be equated to the biblical Israelites journey to the Promised Land Canaan which was full of tide and waves. However in 2001 a flicker of hope was seen among the homosexual community when Netherlands became the first country to legalizes same sex union the mayor of Amsterdam, who officiated the first union of such kind said in the Netherlands, we have gained the insight that an institution as important as marriage should be open to every person and such law would be a stimulus for other countries to reassess their views on gay marriages. On the other side saw Nigeria in 2009 enacting a draconian law imposing severe and sometime always with us? Are we a hypocritical society?

attacks, which are normally subjective and premised on prejudice, especially in the Kenyan context. Its time to have a sober & objective discussion, the so called moral arguments should be left to the men of the cloak & pedestrians whilst lawyers & law-makers should consider the legality & possibility of Kenya introducing such unions in Kenya. Historically one ought to appreciate the fact that such unions have always been there with us although they were Artificial and not operative. By artificial I mean, for 23 example among the kalenjin sub-groups if a woman was barren she had to marry another woman who would bore children on her behalf

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

even capital punishment on same- sex couples who engage in affection. I amof the opinion that Kenya should indeed recognize the modern trend of same sex union. My views are a cocktail of legal and political arguments. Same- sex marriages are protected under some leading international documents which Kenya is a signatory by virtue of article 2 (5) and 2 (6) of the Kenyan constitution they automatically became the bone and flesh of our laws. A classic example is the universal declaration on human right (UNDHR) which has numerous provisions that can be construed to include same sex union article 16 guarantees a right to marry and to found a family without any limitation such as sex. The right to marry without any limitation can be construed to give a blanket covering that annexes same sex unions. In addition article 26 of the international covenant on civil and political rights (I.C.C.P.R) offers equal protection regardless of sex or any other status. In the case of Toonen vs. Australiaan Australian citizen alleged that Tasmania antisodomy law violated his right under the ICCPR, the human right commission (HRC) which is mandated to interpret the scope & applicability 24 of the ICCPRfound that the laws in Tasmania violated the equal protection provision of the ICCPR- Tasmania had to repeal the laws. This decision affirmed the importance of homosexual

rights within international law. The decision of the HRC are binding to all states that are deemed to be signatory with Kenya being a signatory to the instrument since 1974. The Kenya penal code bears some striking resemblance with those of Tasmania that were repealed for example section 165 of the code which criminalizes such practices & carry a maximum penalty of 14 years imprisonment, except 21 years in certain aggravating circumstances. By & large the provisions in the Kenyan penal code ought to be repealed in line with the decisions of the HRC in Toonen vs. Tasmania. Another question that we need to ask ourselves is whether the criminalization of samesex unions furthers the state legitimate interest? Analogously when the state criminalizes a particular conduct such as robbery it has interests or derives benefits therein in that there will be an optimum environment from for commercevis a

visconfidence

investors and anybody

engaging in mercantile thereof, thus an increase in revenue collection. In a nutshell sexual orientation has no connection to a persons productivity and ability to contribute to the society being gay and lesbian doesnt incapacitate one functioning in everyday life. Therefore theirs no legitimate interest derived by the state when it criminalizes same- sex marriages. Although majority of the pubic in Kenya are against it legalization this is an illegitimate ground

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

for limiting as such. The law ought not to criminalize conduct based solely on moral disapproval of the majority it ought to pass the moral neutrality test. Private moral judgment cannot be used to justify government

By and large the struggle for gay and lesbian rights can be equated to the civil right movement of the 1960 and arguments against same sex union are reminiscent of the arguments against interracial marriages fifty five years ago. That it will harm the wellbeing of child, send the wrong moral message and devalue the institution of marriage. In conclusion the population of gay & lesbians community is projected to be around 5 million in Kenya , for those people who are cognizance of politics of mathematics these numbers are enough to catapult one to the office of the presidency bearing in mind that the incumbent president Uhuru Kenyatta who won the march 4th election with a figure of 6.1 million in essence potential presidential aspirants should take advantage of this & include this item in their manifesto & this may resonate well with community & give them the so called sympathy votes. Peterson Gitonga is a second year Law Student at Kenyatta University, Parklands Campus. To comment on this and other articles please visit www.kenyanlegal.com Real Kenya, Real Issues

discrimination based on sexual orientation. This argument was well stated in Bowers vs. Hardwick by Steven J dissenting the fact that the majority in a state have traditionally viewed a particular practice as immoral it is not sufficient reasoning for upholding a law prohibiting the practice. The same sentiment was reiterated in Lawrence vs. Texas which overruled Bowers v Hardwick (this case had outlawed homosexuality) Its against public reason to pick for example a particular scripture in the bible or Quran or any religious book or doctrine which opposes such associations and impose it on the masses. This will be against freedom of religion and

association as stated in article 32 (1 and 36(1) respectively in the Kenyan constitution, A major proponent of this notion is philosopher

johnRawls in his works of public reason he argues imposing such beliefs on the public will be an error in reasoning since not all people subscribe to a particular religion as a matter of fact some even dont profess any religion.

25

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

THE CONTROVERSY THAT IS THE MEDIA BILL


There are sections of the Bill which are regressive and its those sections we ought to mend. The Bill shouldnt entirely be thrown in the gutter. Just like a torn new cloth is not thrown in the bin but rather sewn. The Bill is metaphorically equivalent to a new torn cloth which can be sewn and still be of value. The public actually read well and scrutinize the Bill and denote the discrepancies rather than disdain the whole Bill. There are always three sides to a story; Yours, Theirs & The truth. Truth is the Bill contains sections contravening the constitution and thus should be amended, but the Bill is not entirely wrong. Some of the contravening sections of the Bill is where the Cabinet Secretary is given the power of appointing the chairperson. It is quite fair for the media to enjoy its freedom and impartiality despite the checks and balances expected, because just like the way the three organs of government are independent of each other the media ought to enjoy the same. Were past the rainy days where Media was more muffled and controlled, lets embrace it. As muffling members of the Fourth Estate is much like regressing to the Rainy days. And whoever controls the media sure thing controls Reality as well. Hamida Abass is a first year Law Student and the Kenyan Legal Branch Director at Strathmore University. To comment on this and other articles please visit www.kenyanlegal.com Real Kenya, Real Issues

By Hamida Abass, abasshamida@kenyanlegal.com t has been days of wrangling amongst the Kenyan Public and many Legal scholars concerning the tendentious Media Bill which is said to Gag and stifle the freedom of the media.

Lets first take a moment to appreciate the fact that Kenya as a state has its own constitution in which the citizenry took part in its formulation. Furthermore, we as Kenyans have sworn to live by the constitution. Our well established constitution has given Members of the fourth Estate the privilege of being Independent of the control of the state as enshrined under Article 34(2) which stipulates that: The State shall not exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium. Interestingly the Majority leader Aden Duala said that We want to kill the notion that this House wants go gag or stifle the media. We want to create the best law for this country 26 The Public is quite hasty at jumping into the conclusion that the Bill is aiming its arrow at the Press, truth is the Bill has its pros and cons.

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

Power play
Power, politics & governance
With Arnold Odiembo

UKAMBANI LEADERSHIP

ooking at the topic of this article, some may have it in thought that it is tribal or rather criticism on one side

Some examples may be used to explain my adages. For instance there is Paul Ngei and Mulu Mutisya. These were prominent politicians from Ukambani. these two had issues to the extent that they even got into a physical fight. In the current days we have Ngilu and Kalonzo Musyoka. The Kambas have always had the crab mentality as intimated in an article read(kumekucha). The crab mentality is where one doesnt allow another to prosper. When two crabs are held hostage in a container, if one tries to escape the container then the other tends to prevent it. if i cant leave so cant you. This is jealousy in Ukambani leadership.Kalonzo Musyoka and hon Ngilus political difference has always been a luminous issue to the eyes of many. For instance at some political meeting ngilu refused to shake hands with kalonzo when asked to do so with him Sonko. Also to back this argument further, back in 2006 .some of the reasons why Kalonzo broke away from ODM to form ODM Kenya was that Ngilu was being closer to Raila so much that Kalonzo Musyoka

but trust me this is my thought which I dont think I can be convinced otherwise. But of cause we all are human beings and anything is possible. My way of thought may be changed by deep analytical and critical argument. I have friends whom when you put them in a positions to make choices that is like killing them because they find it hard to make a choice. However this may be rebutted with the argument that Kalonzo Musyoka his Hon has been one of the most successful politicans due to his choices in the political avenue.This however aint my main reason of writing. Ukambani leadership has always been funny since time in memorial. Not once nor twice but time without number has this been proven 27 without a qualms. Some who aint very keen may see it as something that has just started in the near epoch but trust me it is something of the dinosaur ages.

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

felt threatened and felt the only way to be safer was by breaking out. Auxiliary, just before the concluded general elections- before the formation of cord -it was very evident that Ngilu was the only member of the previously known pentagon who stood by Raila. The likes of Ruto, Balala, Mudavadi had broken out. Immediately the formation of cord came up and Raila naming Musyoka as his running mate things went haywire and Ngilu joined the jubilee team. Some may see her as an opportunist but trust me she is not. She only is a Kamba lady who had rage in her and wanted to ensure the downfall of an opponent Kamba leader.

Leaders from the same county government and in fact from the same political party showing rebellion to another is quiet an absurd thing. I feel Alfred Mutua did not work as much or rather show class as the government spokesman but as the governor he must be given credit. He has shown the desire to improve Machakos county and make it a better place. This for me is something that Johnstone fears. Being the chair of wiper which is the preferred political party in the region, Muthama tends to feel that his being the favorite in the region is at risk and thus tends to object all hon Alfred Mutuas plans in order to frustrate him in office. Trust me from my analysis if this crab mentality

To avoid more emphasis on the Kalonzo -Ngilu issue, and to focus on the crab mentality of the Kamba leadership is we can use the issue between Alfred Mutua and Johnstone Muthama. Machakos town which infact was the first inland capital of British protectorate even before Nairobi has always had very minimal or rather no development at all. This is due to the jealousy issue- till they forget about its development. Lately Alfred Mutua and Johnstone Muthama have been having issues.

continues then the Kamba community will still not be strong as a united factor in the political avenue and the development of Ukambani region will always remain wanting and slow rather than expeditious as expected even by the introduction of the devolved government. Arnold Otoeno O.is a second year Law Student at Kenyatta University, Parklands campus and the Kenyan Legal Communications Director. To comment on this and other articles please visit www.kenyanlegal.com Real Kenya, Real Issues

28

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

THE KIDERO-SHEBESH ALTERCATION CASE: EVIDENTIAL BASIS


nder the Law of tort, an assault must be coupled with a present ability or intention to assault or do the act. Assault is the intentional act by one person that creates an apprehension in another of an imminent or offensive contact. The Nairobi women representative Ms. Rachel Shebesh brought allegations of having been slapped by the Nairobi governor Dr. Evans Kidero after having stormed his office in the company of striking county workers to seek an end to the said strike. Following that, Dr. Kidero brought a counter allegation where he filed a report at the Central Police Station claiming to have been assaulted first on his nether regions. I acted in anger after Shebesh assaulted me around my lower abdomen; I found the act embarrassing, disgusting and highly disrespectful. Nonetheless, I wish to regard what happened to me that day as a despicable act of aggression on my personal integrity and that of the office of the governor. From the above case we get different kind of evidences likely to be used by Ms. Shebesh in her allegation being: 1. Oral Evidence (Parole evidence) This is the evidence which is given by oral means. Oral evidence is usually given by those who were present at the time and place of the incidents, where in this case we find witnesses who recorded statements to support the parties involved, Dr. Kidero and Ms. Shebesh. As per section 62 of the Evidence Act (cap. 80 Laws of

By Esther N. Mwangi.

Kenya) which states that All facts except contents of documents may be proved by oral evidence. 2. Direct Evidence: As per section 125 Evidence Act. Direct evidence is evident of a fact, actually in issue, which is perceived by a witness with their own senses; those who saw Ms. Shebesh being slapped at the scene at the time of offence would give this kind of evidence. 3. Derivative Evidences: This is used having been derived from other sources such as the experts report. In this case, its the doctors report s from both parties. 4. Electronic Evidence: This could also suffice as various media cameras were present recording the riot led by Ms. Shebesh, and also anticipated cctv cameras at the place. 5. Character evidence: This type of evidence would be in regards to someones general personality which does include persons traits, propensity, morals and credibility of the person. It is usually but not always prohibited. The fact that a man came out accusing Ms. Shebesh of assaulting him, he being a security staff on suspicion that he was a mole spying on her and feeding all her nightly moves to Senator Gideon Sonko Mbuvi could also suffice as evidence against Ms. Shebeshs character.

29

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

Challenges of electronic evidence

admissibility

of

The electronic evidence is not used in the common law courts as it has been seen to have higher chances of being altered without any trace thus misleading the courts in the long run. In this case in hand, the video clip on the same incident aired by Citizen Television on 6th September, 2013 is seen to be different as that of Nation Television, still on same incident aired on 13th September, 2013 showing just the extent of misleading the courts can be led to. The creation and storage of documents have overtime has changed with the ever-growing advent of digital revolution like in the case of Raila vs. IEBC and Others where Raila faulted IEBCs apparent breakdown of the electronic tallying machines, to which he claimed led to fraud of the election votes; the case failing to sail through showing the challenges brought about by over relying on electronic machines as source of evidence. Therefore, the electronic evidence admissibility raises practical considerations such as appropriate threshold for admitting it as evidence; while the burden of proof of the proponent or opponent of the evidence and the procedural requirements, or safeguards that ought be put in place ensuring that the evidence before the court is properly examined, that is, subject to section 106(b) of the Evidence Act (cap. 80 Laws of Kenya) which states: 1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as computer output) shall be deemed to be also a

document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible. 2) The conditions mentioned in subsection (1), in respect of a computer output, are the following a) The computer output containing the information was produced by the computer during the period over which the computer was used to store or process information for any activities regularly carried out over that period by a person having lawful control over the use of the computer; b) During the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; c) Throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its content; and d) The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. Have a crime-free endeavor. Esther N. Mwangi is a second year Law Student at Kenyatta University, Parklands Campus. To comment on this and other articles please visit www.kenyanlegal.com Real Kenya, Real Issues

30

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

IGNORANCE AND CARELESSNESS AT A SCOPE

By Michael Opondo O. opondomichael1@gmail.com he Law exists to serve man and on that premise it is anticipated that every person should take notice of the Laws of the State the person lives in. such is the view expressed in the Internal Morality of Law theory by Lon Fuller for Law itself to be known by every citizen, 8 principles must be satisfied: 1. The rules must be expressed in general terms. 2. The rules must be publicly promulgated. New Laws and legislations in Kenya are communicated in the Kenya Gazette. 3. The rules must be prospective in effect. 4. The rules should be expressed in understandable terms. 5. They should not require conduct beyond the powers of affected parties. 6. They should be consistent with each other. 7. They must not be changed so frequently such as to make them uncertain. As provided for in Chapter sixteen(16) of the constitution on amendment of Laws ensuring certainty. 8. They should be administered in a manner consistent with their wording.

On achievement of those principles therefore, the Legal foundation is build Ignorance 1. Equity(Law) does not aid ignorance: Ignorance or the state of not knowing what the Law provides/expects from an individual can never be used as a defense. One of the doctrines of Equity, applicable in Kenya by virtues of The reception Clause {Section 3 (1) (c) of the Judicature Act cap. 8, Laws of Kenya}, states that Equity(Law) does not aid those who sleep on their rights, it therefore follows that every person ought to know their own rights and obligations to protect the same rights and that of others. Failure to do so would equate to a crime and not even a defense of not knowing would substitute the punishment to be accorded. Still on the fact that Law serves man, allowing ignorance to be a formidable defense would amount to a social justice which is anticipated to be protected as per the preamble of the Constitution of Kenya, 2010: Recognizing the aspirations of all Kenyans for a government based on the essential values of Human Rights, freedom, democracy, social justice and the rule of Law. 2. The doctrine of Laches:

31

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

This doctrine provides that neglect to follow up a claim on own right coupled with lapse of time and other circumstances will stop the courts from hearing your case, therefore, one cannot therefore claim he/she didnt know/was ignorant of his/her rights, or the law itself thus didnt follow up on it.

ii.

iii. Exception In criminal Cases, under section 14(1) of the Penal Code, a person of under the age of 8 cannot be charged with a criminal offence and is therefore excused on grounds of ignorance of Law.

obligation to avoid careless action that could cause harm to one or more person. That the accused failed to provide the proper standard of care that a reasonable person ought to provide. This varies/depends with the obviousness of the risk. That the actions/omission of the accused was the main cause of injury to the complainant.

Carelessness Carelessness on the other hand takes a different direction in the face of Law as one can get away with it. First, one is deemed to be careless/negligent if the person unintentionally causes injury to someone in a situation where they should have known their action/omission could cause harm to the other. By Law however, a careless person is somewhat protected as the complainant must prove three factors beforehand: i. That the accused owed the complainant a duty of care, that is, was supposed to care for them. Duty of care is an

Secondly, as per the doctrine of Volenti non fit Injuria, that is, to a willing person injury is not done, which means that if someone who willingly places themselves in a position where harm might result knowingly, they will not be able to bring a claim against the other party. In broad, if I am careless with my driving, as to over speed or such, but yet you come and stand in the middle of the road and harm is caused to you as a result, you were a willing person as per the Law and I get away with the fact that I also was careless.

Michael Opondo O. is a second year Law Student at Kenyatta University, Parklands Campus, and managing editor of The Kenyan Legal Magazine. To comment on this and other articles please visit www.kenyanlegal.com Real Kenya, Real Issues

32

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

A COMMENTARY ON THE PROPOSED MARRIAGE BILL


By Victor Kaula, victorkaula@kenyanlegal.com

uch has been said on the ongoing legislation in our country. It would be an understatement not to mention that there has been a wave of tireless minds of scholars all over the country trying to bring a change in this area of family law and in particular the introduction of the matrimonial property bill and the marriage bill. I would like to set it right at the onset that marriage and in particular family law is more of a social relationship rather than a legal concept. This is because the law does not create families but rather it is a mutual understanding that brings people together to form a family. Marriage law does not guarantee that the law will help to hold the families together. Hence, the marriage should be viewed to purport to perform the following functions: a. Facilitative role: Not create families but rather facilitate the creation of family relationships. b. Remedial role: Provide a framework for resolving family breakdown such as in matrimonial proceedings, divorce etc. c. Protective role: Protect the interests of all the parties especially the weak such as domestic violence against women. d. Welfare of children: In case of a family breakdown to enforce parental responsibility and obligations. e. Educative role: Declare and enforce the societys family values and norms.

These are the acceptable things as the normal conduct in the family. A 45 (2) of the 2010 Constitution allows adult parties of opposite sex to get into marriage and prohibits under 18years and same sex marriages. Kenya is a more developed country and it is prudent to note that the family structures that we have today were not available in the 80s and 70s. The marriage bill should also seek to address all the forms of structures in our nation. The main structures are families outside marriage and families outside marriage. Families inside marriage may either be monogamous (Civil, Christian and Hindu marriages) or polygamous (Customary and Mohammedan/Islamic marriages) while families outside marriage are composed of single parent, cohabiting couples, same sex couples and plural cohabitation. A 45 (4) of the 2010 constitution states; Parliament shall enact legislation that recognizes, (a) Marriages concluded under any tradition, or system of religious, personal or family law; and (b) Any system of personal and family law under any tradition, or adhered to by persons professing a particular religion, To the extent that any such marriages or systems of law are consistent with this Constitution. The Marriage Bill hence is found under this article and I would like to invite you to have a critical look at it with me. The Bill firstly outlines marriage as the voluntary union of a man and a woman whether monogamous or polygamous and registered in

33

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

34

accordance with the act. The same is the definition given in the case of Hyde v Hyde (1858) where it was held that marriage is the voluntary union for life of one man and one woman to the exclusion of all others. The good point here is that the bill allows both monogamous and polygamous marriages because of the customary and Mohammedan laws that allow plural marriages. It also states that the parties to a marriage have equal rights at the time of marriage, during the marriage and at dissolution of the marriage, a provision in accordance with section 17 of the Matrimonial Causes Act. The minimum age of marriage is 18 years. In the case of Pugh v Pugh (1951), A man of over 16 years married a girl of 15 years and it was held that the marriage was null and void on the grounds that a person of an age at which we believe them to be immature should have the stresses, responsibilities and sexual freedom of marriage and the physical strain of childbirth. The kinds of marriages recognized under the marriage bill are Christian marriages, Civil marriages, customary marriages, Hindu marriages, Islamic marriages and Marriages by other faiths or groups. The bill goes on further to state that all marriages are registrable and a certificate of marriage shall be issued upon registration. Registration of customary marriages shall be done within 6 months of the marriage after completion of the necessary rituals for the union and both shall appear in person before the Director to be issued with the certificate of marriage. Parties to a potentially polygamous marriage can convert it to a monogamous marriage. In the case of Sowa v Sowa, a polygamous marriage was celebrated in Ghana where the parties were domiciled. Prior to the ceremony the husband promised the wife that he would go through a later ceremony which, according to the law of Ghana, would convert the union to a monogamous marriage. He failed to carry out his promise. Held that despite his promise and despite the fact that the husband had not taken an additional wife, the marriage continued to be

regarded as polygamous. This provision seeks to deal with such instances. Prohibited marriage relationships are those within the prohibited degrees of consanguinity and affinity i.e. a person and grandparent, parent, grandchild, sister, brother, cousin, great aunt, great uncle, niece, nephew, great niece, great nephew and adopted person, between grandparent, parent, child or grandchild of that persons spouse of former spouse. Void marriages (no marriage in the first place) under the Marriage Bill are those that: a. Either party is below 18yrs. Check case of Pugh v Pugh b. The parties are within the prohibited degrees of affinity and consanguinity. c. Either person is incompetent to marry by reason of a subsisting marriage Shaw v Shaw (1954) The Plaintiff had cohabited with a man she regarded as a husband for 14 years and they lived together as husband and wife and at one point even celebrated their marriage. Upon his death, the plaintiff discovered that for 10 years of their marriage the man had been married to another woman who died 2 years before him and that it was therefore in those two years that he had capacity to marry the plaintiff. i.e. he was only single for 2 years of their cohabitation and only in those 2 years that he should have been legally been married to her. d. Order of the court e. Consent of either party has not been freely given f. Either party is absent from the ceremony g. Both parties knowingly and willfully permit a person who is not authorized to do so to celebrate the union. h. Either party is mistaken about the identity of the other. Identity occurs in two ways. The first instance is in the case of mistake as to the identity of the other person. In the case of Singh v

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

35

Singh the woman married the man on the mistaken belief that he was a famous boxer. The man shared a name with the famous boxer and even told her that he had won various championships. She petitioned for nullity on grounds of mistake but the court held that she had married the man that she intended to marry and was only mistaken as to his qualifications. The second instance is mistake as to the nature of the ceremony such as was the issue of Mehta v Mehta a woman got in into a marriage thinking that she was celebrating becoming a Hindu but she was later to discover that she had gotten married to a potentially polygamous marriage and she petitioned for nullity. i. Either party knowingly or willfully enters into the marriage for fraudulent purposes Buckland v Buckland the petitioner was seeking nullity was accused of defiling a girl of 15 years and although he was protesting his innocence, he was advised that unless he married the girl he would go to prison. He contracted the marriage and later filed for nullity on the grounds of consent and the court granted him the petition. Voidable marriages i.e. they will not make the marriage null and void: a. At the date of the marriage 1. Either party was and has ever since remained incapable of consummating it. 2. Either party was and has ever since remained subject to recurrent attacks of insanity. b. There was failure to give notice of the intention to marry. c. Notice of objection to the intended marriage having been given was not withdrawn or dismissed.

d. A person officiating thereat was not lawfully entitled to do so. e. The fact that the person officiating the marriage was not lawfully entitled to officiate. f. A procedural error that does not undermine the essence of the marriage in question, or g. Failure to register the marriage. Token dowry shall be sufficient evidence of payment of dowry in customary marriages. The bill also brings in light the grounds of divorce for Christian marriages as one or more acts of adultery committed by the other party, cruelty, whether mental or physical, inflicted by the other party on the petitioner or on the children if any or desertion by either party for at least 3 years immediately preceding the date of presentation of the petition. On the other hand, the grounds of divorce in customary marriages are adultery, cruelty, desertion or any valid ground under the customary law of the petitioner. Divorce in Hindu marriages shall be where the marriage has irretrievably broke down, the other party has deserted the petitioner for at least 3 years before the making of the petition, the other party has converted to another religion and since celebration of the marriage, the other party has committed rape, sodomy, bestiality or adultery. Divorce in Islamic marriages shall be governed by Islamic law. Promise to marry another person is not binding but damages suffered by the other party may be recoverable against the party who refuses to honor a promise to marry. In the case of Larok v Obwoga, The lady who was the Respondent and the Appellant were friends when the lady was a pupil at college she became pregnant and as a result was expelled from the college. The man then wrote to the lady promising to marry her by the end of April. This was in 1968. In October he again wrote to the lady indicating that he was no longer keen to marry her. The lady then went to court and sued for breach of promise to marry and the lower court held that the man had committed a breach

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

of the promise and awarded the lady 2000 as damages. The bill also stipulates the grounds for maintenance as follows: a. If the person has refused or neglected to provide for the spouse as required by the Act b. If the person has deserted the other spouse or former spouse for as long as the desertion continues c. During the course of any matrimonial proceedings d. When granting of after granting a decree of separation or divorce e. If after making a decree of presumption of death, the spouse or former is found to be alive. I beg to differ on the point of spousal maintenance. I strongly believe that if there is a party that should come in the issue of maintenance in a marriage are the children if any. My point is simply based on the fact that women may take it as a source of income. Consider a situation where a woman asks for maintenance from a deserted man and walks freely into another relationship (marriage in that case), wouldnt that not being unfair to the man? This will make the marriage institution more scaring that it is meant to be. I would recommend that Kenya would adopt the Swedish laws that do not

allow adult maintenance. Everyone should be responsible for his/her own life to his/her best interests. The children that one should maintain in case of a marriage separation and divorce are those that biologically belong to him. The principle here is that we cannot force the law to pin down one person for the mistakes of others. If a woman has three children out of three different biological fathers, each one of them will have to pay maintenance to his/her child not one person forced to provide for all the three children. Again that is subject to discussion on how that is applicable as women may decide to obtain employment out of the act such that she gets 5 children and obtains maintenance worth Ksh 50,000/= and remains at home without going out for work. Another issue that I would like to see how the court will deal with is the presumption of marriage in the issue of cohabitation. The Bill, though silent on cohabitation, the matter is often practiced by many Kenyans and it should have been spelt well in the bill. Perhaps the drafters of the bill chose not to include it in the bill because of the question that if we are to put the presumption of marriage, then at what point of the cohabitation did it cease from being the so called cohabitation to a marriage between the parties.

OFFENCES A summary of the offences under the marriage bill. Offence 36 False statement of notice of Imprisonment for a term not exceeding 5yrs or a fine not intention to marry exceeding one million shillings or to both. Penalty

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

Marrying a person below 18yrs

Imprisonment for a term not exceeding 5yrs or a fine not exceeding one million shillings or to both.

Marrying a person within the Imprisonment for a term not exceeding 5yrs or a fine not prohibited marriage relationships exceeding three hundred thousand shillings or to both. Inducing consent by coercion or Imprisonment for a term not exceeding 3yrs or a fine of three fraud hundred thousand shillings or to both. Celebrating marriage unauthorized person by Imprisonment for a term not exceeding 3yrs or a fine of three hundred thousand shillings or to both.

Celebrating the marriage Imprisonment for a term not exceeding 3months or a fine not without the required witnesses exceeding ten thousand shillings or to both.

37

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

ABORTION IS NOT MURDER


embryos and a person who is capable of being killed. Some may argue that a sleeping person doesnt have consciousness but still it remains that the conscience is dormant with temporary unconsciousness; an embryo never had a history of this consciousness. An embryo is but a potential person (as is a sperm or an unfertilized egg) thus has no inherent preciousness. By Antony Mwangi, antonymwangi@kenyanlegal.com s abortion actively taking away of human life? I dont think so. Abortion is the induced termination of a pregnancy; destruction of an embryo or a foetus while on the other hand, murder is the illegal causing of death of another with malice aforethought, this, according to section 203 of the Penal Code (cap 63 Laws of Kenya). What makes a person precious is conscious; memories, thoughts and feelings. The termination of an embryo in the first trimester should have absolutely no moral or legal implications. I opine that the embryo is no more conscious than a kidney or a spleen. A fertilized egg or an embryo, or a foetus has no consciousness hence no conscience. Thus no inherent preciousness. However much anti-abortion activists would like to call embryos unborn children or developing human beings, I think their ultimate goal is to shame people into believing that abortion is actually murder. When a lie is repeated enough it may seem to be the truth. These however never changes the facts. There are evident differences between early stage

Section 214 of the penal code; A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of the mother; whether it has breathed or not, and whether it has an independent circulation or not; and whether the navel string is formed or not. With that, sometimes repeating a lie too many times makes it seem to be the gospel truth but that doesnt change my opinion Anthony Mwangi is a second year Law Student at Kenyatta University, Parklands campus and the Kenyan Legals Co-Director Partnerships To comment on this and other articles please visit www.kenyanlegal.com Real Kenya, Real Issues

38

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

Lifestyle section
39

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

CARLAS DIARIES

(Carlas diaries is a diary of a law student sharing her hostel life ex periences)
The weather has turned chilly this early November leaving me officially worried. It rains almost always and mornings are a challenge; I have to wake up for my morning lectures which by the way are not anything close to a joke. Take Commercial Law for example, imagine waking up to business ideas that the ancient courts determined hundred years ago. Jurisprudence is better, you get to listen to arguments by weird people (you confirm this when you Google their photos) called philosophers "ati" who said this and who said that, and who disagreed or agreed and all you want to do is take a journey back through time and tell them, "Hey, stop arguing. Agree on something like civilized people. The more you disagree the more you make my syllabus wide, and make my school life miserable." And it does not stop there. It is a constant struggle getting to lecture halls on time because a lot goes on behind the scenes (overturning my wardrobe looking for warm clothes which by the way are next to zero). But I try. And you would think the lecturers have private caucuses on how to make my mornings miserable. In class, you will hear, "The girl in red, tell us, what do you think about that principle?" or better yet, "The brown girl in blue seated behind, what's your opinion?"-when you hear that, kindly do not turn. Im always the victim and it is never funny. Could the morning lecturers please stop targeting me?! Do not get me wrong dear reader. Do not attempt, conspire, or be tempted to believe that I am a very lazy student. I read all the time*cough*..Well.. er...that is if we are talking about novels. Unless of course you find me enjoying an afternoon nap. Besides exams are four weeks away and my adrenaline starts working one week to exams, not now. Before I forget, someone came to my room yesterday and made away with my Commercial Law textbook. The book has a blue cover and mmh another description is that it has my name on it. It was an interesting book..I guess. I think I have now proved my case. I have shown you how serious a student I am. And who steals from a serious student by the way?! Only the unserious ones! Dear reader, the law profession demands that I carry myself with decorum, otherwise if i find the person who took my textbook without my permission; I am really tempted to deal with that person "properly." November is truly targeting me from all corners. However, there is something that excites me about this month that I cannot wait to share with you about it next time. Till then, bye!

By Caren Kerubo carlakeri@yahoo.com


40 0718059041

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

DELIGHT IN YOUR FEARS

By Lone Felix, www.lonefelix.com

of lessons. Ever heard this phrase, for when I am weak, then I am strong! Sometimes, it passes as one of those religious clichs that make little sense. But it is very true, our greatest strength, is revealed in the moments of our biggest weakness. Strength, I have come to believe, is not about being bubbly and happy, and meeting our challenges and living through fire with a smile. True strength, is about sometimes being jolted by reality that we are all human. That moment, when you realize you can also fail, also cry. That you can also try and it does not work out. That realization that brings you closer to yourself. The strongest of men or women, are not those who endure pain with ease, they are those who face failure with knowledge that they too are just human, but that failing is in itself full of lessons. I realize, as a person it takes me to be frightened to be closer with myself and conscience. And when that happens, that moment when I realize that I missed a step, or that I may miss a step. That moment when your own strength seems not to work, and you are forced to give yourself up to a greater guidance, a greater inspiration that is when you are truly strong. So just like it is written, I too this morning: I take pleasure in infirmities, in reproaches, in necessities, in persecutions, in distresses for Christs sake: for when I am weak, then am I strong Happy day Friends 41 Lone Felix is a fourth year Law Student at Kenyatta University, and the K.U.S.A President. To comment on this and other articles please visit www.kenyanlegal.com Real Kenya, Real Issues

The strongest of men or women, are not those who endure pain with ease, they are those who face failure with knowledge that they too are just human, but that failing is in itself full

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

Artistic true: for the love of pencils


By Seth Odhiambo, email: odhiamboseth@gmail.com, phone: 0720340017

Someone once said Every child is born an artist, growing up one is the problem. When I was growing up I loved creating stuff. I only had one bought toy car (which didnt even last that long) but the rest of my growing up days I kept creating my own playing toys, especially toy cars. 42 I started scribbling on the ground, making sketches not knowing that it was a beginning of a development stage of an artist. I remember the first artist that I met. I was in class two, I knew him as Mr. Ojwang. As a kid I had love for cars (I still love them) so when he entered our classroom I shouted Draw Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

for us a car! and he did it playfully. I followed each and every step he took keenly. Of all the class sessions Ive had in my early childhood, it is the only session I can recall perfectly! I was blessed to learn all categories of drawing. If my parents would have known my love for drawing I believe they would have helped me nurture my talent while in those early stages. Sometimes I feel like nature and streets taught me the skills but all in all it is God who gave me the gift. In high school my weakness of always sketching or drawing something always ruled. On book covers, on top of desks, walls or anywhere I felt like putting up an illustration I just couldnt help it but let my hands do the necessary. After high school I started to concentrate fully on my God-given talent and skills kept on improving. I majored in pencil art a lot. I just loved the way a pencil can be manipulated to create a beautiful composition. From cartoon sketches, portraits, graffiti sketches and anything that a pencil can draw, I just let my hands create or draw them. Despite the ups and downs my love for drawing never fades. People see my drawings and give compliments others criticize, some just say they love my works but to give you that job to make you earn some cash is another episode.

43

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

MOMENT WITH SELF


With Sheila Mokaya

WHO AM I?
Most people are quick to decide on a persons personality but really how much can they tell on their own personality. It is very exciting to know the different types of personalities as it helps one improve their interpersonal skills by helping us know what we expect from each other. Broadly there are two types of personalities: the introverts and the extroverts. Introverts are those who embrace solitude and require alone time. They are the types who feel lonely even amidst a crowd. They express their ideas more in writing as this affords them an opportunity to selfreflect. Extroverts on the other hand like to mingle and move around in social situations. They express themselves more verbally. Unlike introverts who derive their energy from within, extroverts are charged up by people, places and stimuli outside of them. Introverts are wrongly presumed to be shy. This is not usually the case, Susan Cain in her book Quiet: The Power of Introverts in a World That Cant Stop Talk ing defines shyness as the fear of social disapproval or humiliation while introversion is a preference for environments that are not over stimulating. Shyness is inherently painful, introversion is not. 44 Other existing myths on these two personalities include: Introverts dont make good public speakers

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

Introverts are unhappy compared to extroverts who are happier. Reality is that they simply express their happiness in different ways; introverts prefer keeping a low profile. Extroverts are bad listeners. Conversely such people easily form rapports with others and know how to make people comfortable making. The methodology they use is different from that of introverts who enjoy deep one on one conversation. Extroverts dont like quiet personal time and are shallow

There is however a more expansive classification of human personality. These still fall in the big bracket of introverts and extroverts. They are: The sanguine type The phlegmatic type The choleric type The melancholic type

The sanguine type It is characterized by spontaneity, optimism, enthusiasm, high energy, mental flexibility, novelty seeking, impulsiveness and curiosity. Their curiosity is expressed in their love for reading different kinds of knowledge. They like luxurious lifestyles and thus are big spenders. They are willing to take risks in pursuit of these interests. They cant tolerate boredom and routine jobs, repetitive experiences and boring companions irritate them. They are impulsive and often find it difficult to control their cravings. They are last minute planners and procrastinate tasks as they are usually busy due to their high energy. They are the most creative people in arts music and are very autonomous and unconventional. They make it their joy to seek joy and happiness. However such people are easily susceptible to addictions such as sex and alcohol.

Sheila Mokaya is a second year Law Student at Kenyatta University, Parklands campus and the Kenyan Legals assistant editor. To comment on this and other articles please visit www.kenyanlegal.com Real Kenya, Real Issues

45

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com

THE PUBLICATION TEAM


The secretariat: Michael O. Opondo: Managing Editor.; opondomichael@kenyanlegal.com Sheilla Mokaya: Assistant Editor.; sheilamokaya@kenyanlegal.com Patricia Ngare: Content Manager.; trishangare@kenyanlegal.com Dennis Gicheru: Director Partnerships.; dennisgicheru@kenyanlegal.com Anthony Mwangi: Co-Director Partnerships.; antonymwangi@kenyanlegal.com Arnold Odiembo: Director Communications.; otienoarnold@kenyanlegal.com Linda Wangui: Co-Director Communications.; lindawangui@kenyanlegal.com Kenyan Legal Branch Directorate: Kenneth Kimathi: Kenyatta University (School of Law); kenkimathi@kenyanlegal.com Gabriel Pelu: J.K.U.A.T (School of Law); gabrielpelu@kenyanlegal.com Hamida Abass: Strathmore University (School of Law): abasshamida@kenyanlegal.com Victor Kaula: Moi University (School of Law): victorkaula@kenyanlegal.com Samuel Onyango: Riara University (School of Law); samuelonyango@kenyanlegal.com This issue was powered by:

To participate in the next issue, please send articles, with your personal details and picture to: kenyanlegal@gmail.com or

mail@kenyanlegal.com
With Complements: Kenyan Legal 2013 All Rights Reserved.

www.kenyanlegal.com
46

Kenyan Legal:real kenya,real issues | www.kenyanlegal.com