KNOW YOUR RIGHTS

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 sphere...

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 th...

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...

1.        What does Article 2(4) of the Constitution provide? Article 2(4) of the Constitution of Kenya provides that, any law, including customary, that is inconsistent with the Constitution of Kenya is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid. In essence Article 2(4) of the Constitution provides for the supremacy clause initially provided for under Section 3 of the Constitution of Kenya (Repealed) . Consequently the effect of Article 2(4) of the Constitution is that that any act or omission in contravention of the constitution is invalid. Therefore before a court of law applies Customary Law or any other law, in any particular case, the court must be sure that the particular rule of custom is not contrary to any provision of the Constitution. The court must therefore, consider all acts of a customs and ensure that they are not contrary to the provisions of the Constitution. In...