Kenyan Legal Magazine Issue #2

Media Bill? To sign or Not to

December 2013 Issue #2

LONE FELIX

BUILT ON PRINCIPLE,

SUSTAINED BY COURAGE

ALSO INSIDE

JUBILEE’S FAILURE ON

ROAD CARNAGE

ALLOWING SAME SEX

MARRIAGE;

PROGRESSIVE SOCIETY

THIRD PARTY RIGHTS

IN MARRIAGE: A

RESPONSE

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

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JUDICIARY’S

FLOWER ISN’T

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 it’s 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

along.

Moving on, success does come to those

who know what they want, believes they

can get what they want and follow through

to get what they want; dreaming is never

enough. So here goes one Mr. Lone Felix,

featured in this issue. Some compare him

to Hon. Ababu Namwamba, the current

Budalang’I 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


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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.

http://www.lonefelix.com/


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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 [email protected] or [email protected]

Copyright protected by:

Creative Commons 2013

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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

Carla’s Diaries ............................................................................................................... 40

Delight In Your Fears .................................................................................................... 41

Artistic True: For The Love Of Pencils ........................................................................ 42

........................................................................................................................................ 44

Who Am I? ..................................................................................................................... 44

The Publication Team .................................................................................................... 46

file:///H:/ /Kenyan%20legal%20Issue%202.docx%23_Toc372683913


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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 lawyer’s 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.


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Ask about Law

W i t h B a r b a r a W a m b u i

For all your Legal

questions Questions…

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 we’ve been together have

formally met each other’s 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.


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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

“Real Kenya, Real Issues”

For any questions, clarifications concerning Law please write to Barbara at [email protected] with

reference of “Dear Barbara” and will be published in the next magazine issue.

http://www.kenyanlegal.com/


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Review and Debate

section


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THIRD PARTY RIGHTS IN MARRIAGE? (Response Article to previous Issue’s Legal Discourse)

By Godfrey W. Aira,

[email protected]

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

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 children’s 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.

A


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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.


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

haven’t.

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




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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 it’s the psychologists that

aren’t doing their work well, maybe it’s the family setting in the society on the verge of downfall, or life is

just becoming hard altogether; but the hardness of it shouldn’t 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 protection…the 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, isn’t 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

action’s morality, therefore, if must, in punishing attempted suicide/aiding suicide, the motivation of

one’s action should inform the whole process; and that to me, is Justice served: Autonomy is not against

Justice, just separated friends.

That’s my legal discourse, what’s 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”



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TRIBALISM IS FAR FROM OVER IN KENYA

By Grishon Wainaina

ribalism is the state of being

organized in or advocate for tribes. In

terms of conformity, tribalism may

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

William Ruto have proceeded with the norm; the

arrogance of power. While the supreme law of

the land (The Constitution, 2010) Article 232 (1)

(h) advocates for representation of Kenya’s 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 Leader’s (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

Ruto’s 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?

T


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“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 Uhuru’s

Joseph Njoroge, carried the day as Principal

secretary. Transport and infrastructure

department Uhuru’s Michael kamau won the

presidents heart while Ruto fell for John

Kipng’etich (Principal secretary). Uhuru’s

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 and…need I

name more? No, why name the devious?

Chairman of independent police oversight

authority Mr. Macharia Njeru, national

intelligence service Michael Gichangi, national

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. Thiong’o, does it represent the diversity

of people of Kenya? Think Not.

Appointment of Uhuru’s 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

Ruto’s in July. Talk of Kenya’s diverse

communities.

Grishon Wainaina is a second year Law

Student at Kenyatta University,Parklands

Campus.






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HAS THE JUBILEE GOVERNMENT

FAILED TO CURB ROAD CARNAGE

IN KENYA?

By Anastacia Kimaku

[email protected]

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 everyone’s

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

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

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.

S

mailto:[email protected]


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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 wasn’t 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 at Kenyatta University,Parklands

Campus.






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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, it’s become what I am

associated with.

Q. Tell us about your growing up

MAIN FEATURE

The Interview


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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

don’t 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. That’s 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 mother’s struggles gave

me.

Q. That’s the fourth time you are saying mother, would you say you are a mama’s boy?

If being a mama’s 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. It’s also the same year when my dad died.

I developed excessive bitterness around that time, in part it’s 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.


19

Walking home from his school to see his grave each day added to my desperation.

Mom’s 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?

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.


20

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.


21

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 can’t do that; life is much more than a day’s 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.

It’s not just about my struggles or the prayers and love of my family. It has been about 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?


22

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, let’s 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.


23

WHY KENYA OUGHT TORECOGNIZE

THE MODERN TREND OF SAME SEX

MARRIAGES.

By Peterson Gitonga,

ften-times when one brings up a

discussion pertaining same- sex

marriage it opens a Pandora box of

attacks, which are normally subjective and

premised on prejudice, especially in the Kenyan

context. It’s 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

example among the kalenjin sub-groups if a

woman was barren she had to marry another

woman who would bore children on her behalf

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

entire hullabaloo about the recognition of same-

sex union while they have traditionally been

always with us? Are we a hypocritical society?

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

O


24

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. Australia-

an Australian citizen alleged that Tasmania anti-

sodomy law violated his right under the ICCPR,

the human right commission (HRC) which is

mandated to interpret the scope & applicability

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 same-

sex 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 for commercevis a

visconfidence from investors and anybody

engaging in mercantile thereof, thus an increase

in revenue collection. In a nutshell sexual

orientation has no connection to a person’s

productivity and ability to contribute to the

society being gay and lesbian doesn’t 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


25

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

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)

It’s 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 don’t profess any religion.

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.






26

THE CONTROVERSY THAT IS THE

MEDIA BILL

By Hamida Abass,

[email protected]

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.

Let’s 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’’

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.

There are sections of the Bill which are regressive and it’s those sections we ought to mend.

The Bill shouldn’t 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.

We’re past the rainy days where Media was more muffled and controlled, let’s 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.



I



27

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

but trust me this is my thought which I don’t

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

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.

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 Kamba’s have always

had the crab mentality as intimated in an article

read(kumekucha). The crab mentality is where

one doesn’t 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 Ngilu’s 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

L


28

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.

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.

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 Mutua’s plans in order to frustrate him in

office.

Trust me from my analysis if this crab mentality

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.





29

THE KIDERO-SHEBESH ALTERCATION

CASE: EVIDENTIAL BASIS By Esther N. Mwangi.

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

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,

it’s the doctor’s 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

someone’s general personality which does

include person’s 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. Shebesh’s character.

U


30

Challenges of admissibility of

electronic evidence

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

IEBC’s 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.





31

IGNORANCE AND

CARELESSNESS AT A SCOPE

By Michael Opondo O.

[email protected]

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:

T



32

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

didn’t know/was ignorant of his/her rights, or the

law itself thus didn’t follow up on it.

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.

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

obligation to avoid careless action that

could cause harm to one or more

person.

ii. 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.

iii. That the actions/omission of the

accused was the main cause of injury to

the complainant.

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.





33

A COMMENTARY ON THE PROPOSED

MARRIAGE BILL By Victor Kaula,

[email protected]

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

society’s 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 80’s and

70’s. 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

M


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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 person’s 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


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


36

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),

wouldn’t 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 Penalty

False statement of notice of

intention to marry

Imprisonment for a term not exceeding 5yrs or a fine not

exceeding one million shillings or to both.


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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

prohibited marriage relationships

Imprisonment for a term not exceeding 5yrs or a fine not

exceeding three hundred thousand shillings or to both.

Inducing consent by coercion or

fraud

Imprisonment for a term not exceeding 3yrs or a fine of three

hundred thousand shillings or to both.

Celebrating marriage by

unauthorized person

Imprisonment for a term not exceeding 3yrs or a fine of three

hundred thousand shillings or to both.

Celebrating the marriage

without the required witnesses

Imprisonment for a term not exceeding 3months or a fine not

exceeding ten thousand shillings or to both.


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ABORTION IS NOT MURDER

By Antony Mwangi,

[email protected]

s abortion actively taking away of human

life? I don’t 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

embryos and a person who is capable of being

killed.

Some may argue that a sleeping person doesn’t

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.

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 doesn’t change my opinion

Anthony Mwangi is a second year Law Student at Kenyatta University, Parklands campus and the Kenyan Legal’s Co-Director Partnerships



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Lifestyle section


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(Carla’s diaries is a diary of a law student sharing her hostel life experiences)

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. I’m 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 [email protected] 0718059041

CARLA’S DIARIES


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DELIGHT IN YOUR FEARS

By Lone Felix, www.lonefelix.com

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.” Ever heard this phrase, for when I am weak, then I am strong! Sometimes, it passes as one of

those religious clichés 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 Christ’s sake: for when I am weak, then am I strong

Happy day Friends

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

“

http://www.lonefelix.com/

http://lonefelix.files.wordpress.com/2013/08/fear.jpg



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Artistic true: for the love of pencils

By Seth Odhiambo,

email: [email protected],

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 didn’t even last that long) but the rest of my growing up days I kept creating my own playing

toys, especially toy cars.

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



43

for us a car!” and he did it playfully. I followed each and every step he took keenly. Of all the class

sessions I’ve 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 couldn’t 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.


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WHO AM I? Most people are quick to decide on a person’s 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 self-reflect. 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 Can’t Stop Talking 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.

Other existing myths on these two personalities include:

• Introverts don’t make good public speakers

With Sheila Mokaya

MOMENT WITH SELF


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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 don’t 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 can’t 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 Legal’s assistant editor. To comment on this and other articles please visit www.kenyanlegal.com “Real Kenya, Real Issues”


46

THE PUBLICATION TEAM

The secretariat:

Michael O. Opondo: Managing Editor.; [email protected]

Sheilla Mokaya: Assistant Editor.; [email protected]

Patricia Ngare: Content Manager.; [email protected]

Dennis Gicheru: Director Partnerships.; [email protected]

Anthony Mwangi: Co-Director Partnerships.; [email protected]

Arnold Odiembo: Director Communications.; [email protected]

Linda Wangui: Co-Director Communications.; [email protected]

Kenyan Legal Branch Directorate:

Kenneth Kimathi: Kenyatta University (School of Law);

[email protected]

Gabriel Pelu: J.K.U.A.T (School of Law); [email protected]

Hamida Abass: Strathmore University (School of Law):

[email protected]

Victor Kaula: Moi University (School of Law): [email protected]

Samuel Onyango: Riara University (School of Law);

[email protected]

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Kenyan Legal Magazine Issue #2

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Transcript of Kenyan Legal Magazine Issue #2