F.A.Q

Was my termination from employment unlawful?

There are several ways to determine whether your termination was unlawful/unfair, the main indicator is whether you went through a disciplinary process as provided by the Code of Conduct or such like document that governs disciplinary proceedings.
There is also a need to ascertain whether the reason for termination was fair and just, and look at other things such as the history of the employee during his or her employment, for example whether the employee had been given any previous warning letters or whether the employee was competent/compatible with the job.
A number of other considerations will be analyzed by your advocate, and if they are satisfied that there is a strong case, they can proceed and file a case in court.

How do I purchase a property?

The first thing is to ensure that the seller of the property is the genuine legal owner—for land transactions, you need a land search. To verify the identity of the seller, you do a company search for companies, while for individuals you will demand for their national identity card.
You must also properly inspect the property by ascertaining the locations of the beacons and the size of the property. If you are buying a property off plan you need to insist on the architect plans, survey plans and deed plans.
After negotiation of the purchase price and deposit to be paid, the buyer and the seller execute/sign a sale agreement, drawn by a lawyer. At the completion, the seller will avail all the documents necessary for the transfer of the title to the Buyer including a signed Transfer, Land Control Board Consent (if applicable), evidence of Land Rent clearance, evidence Land Rates clearance, Spousal consent and others. The documents will then be presented at the relevant Land Registry for registration of the title in favor of the Buyer.
There are also tax obligations that need to be adhered to by both parties, Capital Gains Tax to be paid by the Seller and Stamp Duty to be paid by the Buyer. You will need an e-citizen and i-tax accounts to undertake registration and payment of stamp duty respectively.

I am writing a book or introducing a new product in the market how do I ensure it is protected?

Depending whether it is a copyright—expression of the idea, a trademark-a sign that distinguishes a good or a service, or a patent—an inventive step that is industrially applicable to bring a solution, there exists several resources available in law. To enforce any intellectual property right it must be protected.
For example, for copyright such as website content or a book—if a person infringes on your registered copyright, one can institute an action in court seeking the pulling down of such content on the website or surrender of infringing materials in the case of a book. A party will also seek damages for the loss incurred. A complaint at the Kenya Copyright Board is also an option.
Your advocate will advise you on the options available on other types of Intellectual property such as Patent and Trademark.

My bank/SACCO has not provided me with statements and computation on my loan status.

The Constitution and Access to Information Act provides every individual with right to information.
The Bank/Sacco is thus mandated to give you statements on your loan status, including documentation containing the computation of interests.
If the Bank/Sacco fails to issue you with statements, you can through your advocate write a letter demanding for such information, and if they fail to do so, you can institute an action in court to compel them to provide you with the information.

How can I get additional capital for my company?

Capital can be equity, debt or a hybrid of the two. If your business is a company then to raise equity capital (where an investor gets some ownership in exchange for cash), you need to restructure the company to allow the investor to come in. This is through a series of resolutions and company filings.
Debt is mostly raised through a financial institution and in most cases it will insist on a security. In that case, your property will be charged as a security for the loan. At times, the institution may create a general charge over all your company assets.
A specialized advocate with expertise in corporate finance will advice you on the best way and terms to raise capital and will assist in negotiations with creditors and investors. It is important for you to get the best deal when raising capital.

How do I get custody for my child and compel fellow parent to provide maintenance (needs of the child)?

For one to get custody of the child, one has to file a case in Court-Children’s court. If parents to the child are living separately, custody for a child of tender years (10 years and below) always tilts in favor of the mother, unless there are compelling circumstances that make it unsuitable for the mother to have custody such as drug abuse.
It is however important to note that each parent has custody over the child until determination otherwise by the court.
If one of the parents fails in providing for basic needs such as food, clothing and fees for the minor, then the aggrieved parent can move to court to compel the other to provide maintenance. On maintenance, it is important to note that maintenance is equal between the parents in accordance to their financial ability.
Before however suing for maintenance of the child, it is important to try mediation—a negotiated settlement, since it is faster and cheaper. For more information on mediation, contact us so that we can connect you to a certified professional mediator.

Online defamation

With social media pervading our society and internet being an indispensable tool, online defamation has become prevalent. A statement is said to be defamatory if it tends to “lower the plaintiff (the person suing) in the estimation of right thinking members of society generally”- Sim V Stretch [1936] 2 All ER 1237.
Defaming a person/organization in social media can be very costly, it is thus very important to verify information before posting or sharing on social media/internet. The Defendant (the person taken to court for defamation) in the case of Arthur Papa Odera v Peter O. Ekisa [2016] eKLR, learned it the hard way when the court compelled him to pay the Plaintiff (the aggrieved) total damages of Kshs. 5 million for defamatory statement published on Facebook.
Also in the case of Jacqueline Arkle v Five Forty Aviation Limited [2018] eKLR, the employer was compelled to pay Kshs.5 million for defaming their former employee by publishing her photo in the website www.dontemployme.com , a site that ordinarily publishes faces of fraudulent employees. The Claimant also stated that the defamatory material was also published on other dailies.
It is however important that the Constitution guarantees freedom of expression, and the Court usually balances the right to free speech and right to protect the dignity of others by punishing & compensating for defamation.
Some of the defenses that can be raised for defamation include truth, fair comment, reasonable publication and privilege.
For further information on defamation contact us.

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