Ashioya Mogire & Nkatha Advocates

05/02/2024

https://www.standardmedia.co.ke/national/article/2001489589/ahmednasirs-law-firm-sues-supreme-court-judges-over-ban?s=09

Ahmednasir Abdullahi LLP alongside its 11 associates have individually sued the seven Supreme Court judges over the decision to ban the lawyer, his law firm and associates.

26/01/2024

Mativo, Achode and Gachoka wamesema public interest tilts in favour of not granting stay.

Wise ones these ones

18/08/2023

Daily Legal Tit-bits by Ashioya Biko.

TODAY WE LOOK AT THE CHARGE OF FORCIBLE DETAINER
Section 91of the Penal Code (Chapter 63 of the Laws of Kenya) provides as follows;

“91. Forcible detainer
Any person who, being in actual possession of land without colour of right, holds possession of it, in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, against a person entitled by law to the possession of the land is guilty of the misdemeanour termed forcible detainer.”

Elements of the offence
In Julius EdapalEkai v Republic [2018] eKLR, HIGH COURT CRIMINAL APPEAL NO. 31 OF 2017, Riechi J., stated as follows;
“A literal reading of Section 91 of the penal code shows that the prosecution will only prove an offence of forceful detainer against an accused person if it demonstrates that: -
(a) A person has actual possession of land
(b) The person has no right over the land
(c) The act of possession is against the interests of the legal owner or the person legally entitled to the land; and
(d) The act of possession of the land is, therefore, likely to cause a breach of the peace or a reasonable apprehension of the breach of the peace.”

NOW YOU KNOW!

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16/08/2023

Daily Legal Tit-bits by Ashioya Biko.

‘VEHICLES ARE PARKED AT OWNERS RISK’

You have seen this notice in most premises. A friend of mine asked me the import of this and it therefore becomes our tit-bit for today.

The question is, of what legal consequence is this notice to visitors to a premises if they found their vehicles vandalised and/or even stolen while at the said premises? Or what happens if a person is injured while having lawfully entered the said premises. Is the owner of the premises liable in any way to the losses or injuries? To understand this, we interrogate an area of tort law known as occupiers’ liability.

OCCUPIERS’ LIABILITY is an area of tort law that deals with the duty of care owed by those who occupy real property through ownership or lease (called ‘the occupier’) to those who visit or trespass into the property. An occupier of premises owes the said duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

This concept is guided by the Occupier’s Liability Act, CAP 34, Laws of Kenya. There is a duty imposed on the occupier to maintain the premises, including all the common areas which are part of the premises in a manner that does not, in all the circumstances, pose any threat to injury or damage to those on the premises.

Further, an occupier must be prepared for children to be less careful than adults.

So, yes. You can sue for lost items, damages and injuries you get while on somebody’s premises.

NOW YOU KNOW

10/08/2023

Daily Legal Titbits by Ashioya Biko.

I have received numerous requests for further analysis of contract law principles and so today tuangalie THE PRINCIPLE OF NON-EST FACTUM (NOT MY DEED)

Where a person signs a document or enters into a contract, it carries with it an intention that he intends to be bound by the document or the contract entered into.
However, where such a person’s signature was obtained either by fraud or misrepresentation or where he signed a document which is fundamentally different from that which he thought he was signing, it will be unfair and against the weight of justice to allow such a person to be bound by that document or contract signed by him. Hence the common law introduced the principle of non est factum which operates to shield such persons from liability in respect of documents or contracts mistakenly executed by them.
The doctrine of non est factum arises where a party has been misled into executing or signing a document that is materially different from that which he intended to execute or sign. The party therefore raises that defence to argue that the document in question is not his or what he intended to execute or sign.
Lord Denning (MR) in Gallie v Lee and Another [1969] 1 All ER 1062 had this to say:

If the deed was not his deed at all, (non est factum) he is not bound by his signature any more than he is bound by a forgery. The document is a nullity just as if a rogue had forged his signature. No one can claim title under it, not even an innocent purchaser who bought on the faith of it, nor an innocent lender who lent his money on the faith of it. No matter that this innocent person acted in the utmost good faith, without notice of anything wrong, yet he takes nothing by the document.

NOW YOU KNOW!!!

07/08/2023

Daily Legal Titbits by Ashioya Biko. Today we look at Contract law; REMEDY FOR BREACH OF CONTRACT

The principal remedy under common law for breach of contract is an award of damages, with the purpose of damages being to compensate the injured party for the loss suffered as a result of the
breach, rather than (except for very limited circumstances) to punish the breaching party. This general rule, which can be traced back to Robinson v Harman is to place the claimant in the same position as if the contract had been performed, with the guiding principle being that of restitution. The compensatory nature of damages for breach of contract, and the nature of the loss for which they are designed to compensate, were explained by Lord Diplock in Photo Production Ltd v Securicor Transport Ltd:-

15“ The contract, however, is just as much the source of secondary obligations as it is of primary obligations ... Every failure to perform a primary obligation is a breach of contract. The secondary obligation on the part of the contract breaker to which it gives rise by implication of the common law is to pay monetary compensation to the other party for the loss sustained
by him in consequence of the breach ...” (p 849)

04/08/2023

WHETHER TO GRANT OR DENY LEAVE TO COMMENCE JR PROCEEDINGS
Grant of leave to commence judicial review proceeding is not a mere formality and that leave is not granted as a matter of course.

The applicant for leave is under an obligation to show to the court that he has a prima facie arguable case for grant of leave. Whereas he is not required at that stage to go into the depth of the application, he has to show that he has not come to court after an inordinate delay and that the application is not frivolous, malicious and futile. The grant of leave being an exercise of discretion the conduct of the applicant must also be considered.

24/12/2018

Seasons blessings from all of us here at AMNadvocates.

02/07/2018

A fresh battle is shaping up between Nairobi’s opposition politicians and the county government over an alleged loss of 1.7 billion shillings in a controvers...

02/07/2018

When we said there was massive corruption at the Nairobi City County, the Governor dismissed us. We proceeded and filed suit at the ACEC, the same County Govt was still determined to ensure the case flopped. The Judge said she has no jurisdiction. We have since appealed the matter since we are still convinced she has the jurisdiction.

And now this.

A fresh battle is shaping up between Nairobi’s opposition politicians and the county government over an alleged loss of 1.7 billion shillings in a controvers...

09/02/2018

The recent acts of disobedience of court orders by a section of the government should worry any one who cares for the rule of law and public Order.

Some have argued that MM deserved the treatment he was accorded by the state having committed the initial sin of disobeying the Constitution and therefore deserves no protection of the same constitution.

We beg to differ. Two wrongs don't make a right and this analogy equates to comparing an Orange to an Apple. Further, there exists the principle of innocent until proven guilty which principle ought to be upheld at all time lest we slip back to the era of mob justice just like was done to MM.

Back to disobedience court orders, which is very unfortunate. In the case of BOARD OF GOVERNORS MOI HIGH SCHOOL KABARAK VS MALCOLM BELL & ANOTHER, the Supreme Court identified the power to punish for contempt as one of the indisputable attributes of the court's inherent power. The Court went on to state that without that power, protection of citizen's rights and freedoms would be virtually impossible and courts of law would be reduced to futile institutions spewing forth orders in vain.

It is always required of the Court never to issue its orders in vain and that is why it will be very interesting to see how the Court in the current MM case would enforce its Orders in the unlikely event that its directions are not complied with.