KNOW YOUR RIGHTS

Thinking out loud if “ A party who is deprived o f their basic freedom by way of enforcement of a civil debt through imprisonment is also curtailed of their ability to move and even seek ways and means of repaying the debt” as held by Koome J in Re Zipporah Wambui Mathara [2010], does it mean then that the provision of committal to civil jail under the Civil Procedure Rules 2010 is unconstitutional? Koome J in this matter stated that imprisonment in civil jail goes against the International Covenant on civil and political rights that guarantee parties basic freedoms of movement and of pursuing economic social and cultural development. This ruling was made in an application for stay of execution of order of committal to civil jail pending bankruptcy proceedings by Zipporah Wambui Mathara. The Applicant had filed Bankruptcy proceedings where a receiving order was issued in respect of her estate on May 21, 2010. She had earlier been committed to serve a jai

It appears to me that case law now seeks to fill the lacunae created by absence of the law on deceased persons persons in Kenya. Take a look at the following judgment by A Mshila J, delivered at the High Court of Kenya in Nairobi on March 13th 2012. The case in question Lucy Kemboi v Cleti Kurgat & 5 Others (2012) eKLR the Honorable judge categorically renders the S. M. Otieno Case bad law. The court in its obiter expressed the view that a widow has a right, just like that of  her in-laws, to bury the remains of her  husband. The Honorable Court furthe held that Article 27 (3) and (4) of the constitution protected a widow's right to bury the remains of her husband. This she explained that Article 27 (3) and (4) protects a widow from being discriminated upon by cultural practices.  It was further explained that Article 27(3) and (4) of the  Constitution gives both women and men the right to equal opportunities in  cultural and social spheres and also provides that there

I found this judgment very interesting ad thought it wise to share. As you may all know a DNA test cannot be forced on a person and where the person is a child, the guardian can withhold permission to conduct the test. However, this judgement seems to imply that a court may order for a DNA test to assist it in the enforcement of Article 53 of the Constitution. Read through.   In the recent case of C.M.S vs I.A.K suing through Mother and Next Friend C.A.O., Constitutional Application No. 526 of 2008, Mumbi Ngugi J, at the High Court of Kenya at Nairobi held that in determining a paternity dispute, the court must of necessity weigh the competing rights of the child and the party alleged to be the biological father. The right of the child to parental care takes precedence particularly in light of the cardinal constitutional principle set out in Article 53 (2) that in such matters, the paramount consideration is the best interests of the child. The facts of the ca

Grant Gilmore of Yale has been quoted describing Christopher Langdell, a professor at Harvard Law school as essentially “a stupid man who early in his life hit on the casebook method, an idea that was absurd, mischievous and deeply rooted in error” an opinion that I strongly disagree with. However I do agree with the opinion of Joseph Kimble, Plain Language Michigan Bar Journal, November 2006, where he states that the case book method has had one harmful if unintended consequence for helping perpetuate legalese. Joseph Kimble states that legalese should be distinguished from terms of art such as habeas corpus, indemnity and tortious interference with a contract . He describes legalese as high faulting legal jargon such as hereinbefore stated, in the instant case, pursuant to and said claims or such claims. He further laments that use of legalese costs clients’ money, impairs persuasiveness and detracts a writer’s reputation. Bryan Garner [1] , in his article Learning to loathe