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THE LAW AND ME:CONTRACTS DEBT OBLIGATIONS
THE LAW AND ME:CONTRACTS DEBT OBLIGATIONS 150 150 Admin_salclaw

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JOB VACANCY
JOB VACANCY 150 150 Admin_salclaw

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The law office of Sudi & Associates is seeking to competitively fill the following vacant position.

 Receptionist/Secretary

Must-

  1. Have a bubbly, cheery and chatty personality
  2. Well-organised, friendly and polite
  3. Professional appearance
  4. Solid communication skills both written and verbal
  5. Ability to be resourceful and proactive in dealing with issues that may arise
  6. Ability to organise, multitask, prioritise and work under pressure
  7. Self-motivated
  8. Good with computer systems
  9. Must have at least a diploma in the relevant field
  10. Must be between 20-29 years of age.

How to apply
Please send your Application together with a detailed CV, copies of academic and other relevant testimonials to info@salclaw.co.ke on or before close of business 29th August, 2018.

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Trademark Registration in Kenya
Trademark Registration in Kenya Admin_salclaw

The registration of a trademark under our current legislative regime gives the you the exclusive right to the use of the trademark upon or in relation to the goods in respect of which it is registered, or in relation to services for the purpose of indicating that a particular person is connected, in the course of business, with the provision of those services.  It follows that you, as the proprietor of the mark may sue for infringement where there has been an unauthorized use of the registered mark. In addition, you, as the registered owner of a trademark also retain the right to protect any reputation acquired through use of the trademark by means of a passing-off action.

Briefly, the procedure for registration of a trademark is as follows:

  • A preliminary search is conducted to determine whether the mark is available for registration;
  • If the mark is available for registration, an application is made, in the prescribed form, for the registration of the same. The mark will then be examined by the registrar to determine whether it meets the statutory criteria for registration;
  • After examination of the application, the registrar may refuse it, or accept it absolutely or subject to such amendments, disclaimers, modifications, conditions or limitations, if any, as he may think right to impose;
  • If the registrar objects to the application, he must inform the applicant of his refusal to do so;
  • As soon as possible after an application for registration of a trademark has been accepted, the registrar must cause the application as accepted to be advertised in the Kenya Gazette, and the advertisement must set forth all conditions and limitations subject to which the application has been accepted;
  • Within sixty (60) days from the date of any advertisement of an application to register a trade mark, any person may give the registrar notice of opposition to the registration;
  • Subject to whether there is an opposition to the registration, the registrar will, as soon as possible after the expiration of sixty days from the date of the advertisement, enter the trademark in the register and issue a certificate of registration of the mark to the applicant. The registration of a trade mark shall be for a period of seven years, but may be renewed from time to time after the expiry of such period.

 

The registration of the trademark will take a total of 3-5 months this takes a long time due to the statutory period for the advertisement.

 

Written by:

Eugene Mweresa Sudi

Advocate

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TERMINATION OF EMPLOYMENT ON ACCOUNT OF REDUNDANCY
TERMINATION OF EMPLOYMENT ON ACCOUNT OF REDUNDANCY Admin_salclaw

Redundancy means loss of employment, occupation, job or career by involuntary means through no fault of an employee. It involves termination of employment at the initiative of the employer.

Redundancy is defined under Section 2 of the Employment Act, 2007 as the loss of employment, occupation, job or career by involuntary means through no fault of an employee. It involves termination of employment at the initiative of the employer, where the services of an employee are superfluous. Redundancy may arise under various circumstances including but not limited to the practices commonly known as abolition of office, job or occupation and loss of employment.

Circumstances in which redundancy may include:

  • When a company is downsizing
  • When a company is restructuring
  • Reduction in staff requirements due to inefficiency gains or falling demand.

Law Applicable

Section 40(1) of the Employment Act provides for the substantive and procedural legal requirements that an Employer needs to comply with while effecting a termination on account of redundancy, it provides as follows:

 “An employer shall not terminate a contract of service on account of redundancy unless the employer complies with the following conditions:-

  1. where the employee is a member of a trade union, the employer notifies the union to which the employee is a member and the labour officer in charge of the area where the employee is employed of the reasons for, and the extent of, the intended redundancy not less than a month prior to the date of the intended date of termination on account of redundancy;
  2. where an employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer;
  3. the employer has, in the selection of employees to be declared redundant had due regard to seniority in time and to the skill, ability and reliability of each employee of the particular class of employees affected by the redundancy;
  4. where there is in existence a collective agreement between an employer and a trade union setting out terminal benefits payable upon redundancy; the employer has not placed the employee at a disadvantage for being or not being a member of the trade union;
  5. the employer has where leave is due to an employee who is declared redundant, paid off the leave in cash;
  6. the employer has paid an employee declared redundant not less than one month’s notice or one month’s wages in lieu of notice; and
  7. the employer has paid to an employee declared redundant severance pay at the rate of not less than fifteen days pay for each completed year of service

For a termination on account of redundancy to be fair and lawful, an employer must adhere to the requirements set out in Section 40(1) of the Employment Act, 2007, unless the parties have entered into an agreement to the contrary with terms greater than the minimum statutory requirements which may be through a contract of employment or Collective Bargaining Agreement (CBA).

Eugene Mweresa Sudi

Advocate

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Notice of Office Relocation
Notice of Office Relocation Admin_salclaw

We are pleased to inform you that with effect from 16th April, 2018, our company has been relocated to a new office as follows address, the main telephone and email address remain unchanged.

Our new building location at:
View Park Towers, 4th Floor-Wing B
We look forward to your continued support.
We will strive for providing the excellent service in appreciation of your support.

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PROTECTION AGAINST DOMESTIC VIOLENCE
PROTECTION AGAINST DOMESTIC VIOLENCE Admin_salclaw

 

DOMESTIC VIOLONCE

PROTECTION  AGAINST DOMESTIC VIOLENCE

Kenya has witnessed an unprecedented rise in cases of domestic violence some unfortunately ending tragically with death. Many Kenyans unfortunately unaware that there is a law that specifically protects individuals from domestic violence namely the Protection Against Domestic Violence Act of 2015.

The act defines domestic violence as violence against a person, or threat of violence or of imminent danger to that person, by any other person with whom that person is, or has been, in a domestic relationship. The genius of the act is that it broadens the meaning of the word domestic relationship from the commonly accepted interpretation of a couple to include persons who have been previously been married, persons living in the same household, persons who are divorced, persons who are family members, persons who are engaged, persons who have children with each other and persons who have a close personal relationship.

The act goes further to define violence to include the following:

  1. Abuse that includes child marriage, female genital mutilation, forced marriage, forced wife inheritance, interference from in-laws, sexual violence within marriage, virginity testing and widow cleansing;
  2. damage to property;
  3. defilement;
  4. depriving an individual or hindering an individual from access to reasonable share of the facilities associated with the individuals place of residence;
  5. economic abuse;
  6. emotional or psychological abuse;
  7. forcible entry into an individual’s residence where the parties do not share the same residence;
  8. harassment;
  9. incest;
  10. intimidation
  11. physical abuse;
  12. sexual abuse;
  13. stalking;
  14. verbal abuse; or
  15. any other conduct against a person, where such conduct harms or may cause imminent harm to the safety, health, or well-being of the person.

The act does not only protect you from actual infliction of the violence described above but also protects you in instances where you fear or there is imminent threat that that the violence above will be inflicted on you.

The Act has encompassed the new forms of violence and abuse that have arisen with the emergence of social media as long as the perpetrator is person with whom you have a close personal relationship. Such forms of violence include emotional abuse, psychological abuse, harassment, intimidation, stalking, verbal abuse and any other conduct against you that may cause imminent harm to your safety, health or well being.

 

 

Where there is domestic violence or where there is imminent threat of domestic violence as described above in any domestic relationship. The act gives you the power to apply for a protection order from court. A protection will among other things direct an aggressor, not do any one or more of the following actions against you:

  1. physically or sexually abuse or threaten to abuse you;
  2. damage, or threaten to damage, any your property;
  3. engage, or threaten to engage, in behaviour including intimidation or harassment, which amounts to psychological abuse against you;
  4. encourage any person to engage in behaviour against you where the behaviour, if engaged in by the aggressor would be prohibited by the order;
  5. engage, or threaten to engage, in behaviour including intimidation, harassment or stalking which amounts to emotional, verbal or psychological abuse against you;
  6. engage, or threaten to engage, in economic abuse against you; or
  7. engage, or threaten to engage, in cultural or customary rites or practices that abuse your person.

An aggressor who has been served with a copy of  a protection order  and who contravenes the order commits an offence and is liable to a fine not exceeding one hundred thousand shillings, or to imprisonment for a period not exceeding twelve months, or to both.

The act further provides that where one suffers personal injuries or damage to property or financial loss as a result of the domestic violence, A court may ward compensation in respect of the injury or damage or loss where it deems just and reasonable.

The coming into force of the Act has hailed a new era in how we deal and react to acts of domestic violence against us be it in person or on social media. With the coming into force of this act you should not feel like you are living in hell from one day to the next. That there is nothing you can do to escape. That you don’t know where you would go if you acted. That you are utterly powerless, and that feeling is your prison.

We, as peaceful and loving citizens should at all instances stand up and condemn all instances of domestic violence, because domestic violence is raw and if unleashed has the capacity of tearing away the veil of civilization that keeps us sane.  “In a healthy relationship, vulnerability is wonderful. It leads to increased intimacy and closer bonds. When a healthy person realizes that he or she hurt you, they feel remorse and they make amends. It’s safe to be honest. In an abusive system, vulnerability is dangerous. It’s considered a weakness, which acts as an invitation for more mistreatment. Abusive people feel a surge of power when they discover a weakness. They exploit it, using it to gain more power. Crying or complaining confirms that they’ve poked you in the right spot”― Christina Enevoldsen,

STAND UP AGAINST DOMESTIC VIOLENCE THE POWER IS WITHIN YOU

Eugene Sudi

Sudi & Associates.

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OFFICE RELOCATION
OFFICE RELOCATION 150 150 Admin_salclaw
Dear Clients, Partners and Friends,

We are proud to announce that we have just moved to a new office location on 1st April, 2016. Our new office address is:

View Park Towers, Utalii Lane,12th Floor-Suite 3

where we will continue to serve you in the same friendly manner as before.

Our office contacts will remain the same as

  • Phone: 0204400734
  • email:info@salclaw.co.ke

Our new and larger space office location allows us to add more functions in order for value added service to all our clients.

Should you have any questions on the relocation, please feel free to contact us.
We look forward to seeing and serving you at the greatly improved office surroundings.

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Trade Secrets in Kenya: A case for Small & Medium Enterprises
Trade Secrets in Kenya: A case for Small & Medium Enterprises 150 150 Admin_salclaw

trade secret
It is evident that the Kenyan economy is being driven by the SME sector. The hosting of the Global Entrepreneurship Summit by Kenya and the rush by investors, banks included to inject billions of shillings into the SME sector is a testament that Kenya is indeed a hotbed for opportunities. The growth of the Kenyan SME sector is characterized by entrepreneurs who are innovative, wildly creative, and ambitious with a burning urge, need and desire to always push boundaries. These breed of entrepreneurs is always willing to wander into uncharted territories with an aim of breaking set societal ceilings.
The characteristics of the drivers of the Kenyan SME sector has given rise to countless innovations that give their respective business a competitive edge against their competitors. It is thus becoming necessary for SMEs to implement appropriate intellectual property management strategies to protect their trade secrets.
Trade secrets include sales methods, distribution methods, consumer profiles, advertising strategies, lists of suppliers and clients, manufacturing processes e.t.c. Broadly speaking, any confidential business information which gives an enterprise a competitive edge may be considered a trade secret and where the unauthorized use of such information by persons other than the holder is regarded as an unfair practice and a violation of the trade secret and includes industrial or commercial espionage, breach of contract and breach of confidence. Due to the fact that constant innovation is the only distinguishing factor amongst the SMEs, protection of trade should thus follows as a mandatory measure. It is only through innovations that SMEs can expand their capacity, generate capital investments, increase productivity, advance technologically and increase their overall market share.
Contrary to patents, trade secrets are protected without registration, that is, trade secrets are protected without any procedural formalities. Consequently, a trade secret can be protected for an unlimited period of time. For these reasons, the protection of trade secrets may appear to be particularly attractive for SMEs. However for some information to be considered a trade secret it must comply with the following requirements referred to in Art. 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) which Kenya is a party to:
• The information must be secret (i.e. it is not generally known among, or readily accessible to, circles that normally deal with the kind of information in question).
• It must have commercial value because it is a secret.
• It must have been subject to reasonable steps by the rightful holder of the information to keep it secret (e.g., through confidentiality agreements).
SMEs should rely on trade secrets for the protection of their intellectual property due to the following reasons:
• Trade is not limited to time and thus operates indefinitely as long as the secret is not revealed to the public.
• Trade secrets involve no registration costs apart from the costs of preparing the various documentation that protects the secret.
• Trade secrets have immediate effect as opposed to the patenting process which takes about 2 years in Kenya.
• Trade secret protection does not require compliance with government regulations apart from formalities of contract law.
• Where a secret is not patentable then a protection as a trade secret is appropriate.
• Broad range of protectable subject matter
• Applies to innovations that are in the conception stage
• May be used in combination with other IP protection mechanisms to protect complex inventions Unlimited
• Assists in appropriating returns to innovation investment
• Assists in arranging for financing of further commercial development
• Availability of legal remedies in cases of breach.
Some of the strategies that can be used by SMEs to protect their trade secrets include:
• If a secret is patentable then organizations should consider whether they should patent them
• Ensure that only few high level executives have access to trade secrets and ensure that even the access to this special group is highly controlled.
• Use of confidentiality and non disclosure agreements with employees and business partners where such people come into contact with any confidential information.
For any SMEs that may want to adopt the use of trade secrets, it is always important to have the following as your standard checklist:
• Identify and catalogue your trade secrets.
• Put in place physical, technical, and contractual measures for protecting your trade secrets.
• Document trade secret protection measures you take as a reference tool in case of disputes.
• Develop and implement a trade secret protection policy and sensitize all employees on the provisions of this policy.
• Always have non-disclosure agreements (NDAs) before entering negotiations with third parties.
Written by,
Eugene Sudi
Managing Partner
SUDI & ASSOCIATES

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JOB VACANCIES
JOB VACANCIES 150 150 Admin_salclaw

 

The law office of Sudi & Associates is seeking to competitively fill the following vacant positions:

1 Receptionist/Secretary

Must-

  1. Have a bubbly, cheery and chatty personality
  2. Well-organised, friendly and polite
  3. Professional appearance
  4. Solid communication skills both written and verbal
  5. Ability to be resourceful and proactive in dealing with issues that may arise
  6. Ability to organise, multitask, prioritise and work under pressure
  7. Self-motivated
  8. Good with computer systems
  9. Must have at least a diploma in the relevant field
  10. Must be between 20-29 years of age

2 Legal Assistants

Must-
(1) be in their final year of law school or about to graduate;
(2) have excellent academic credentials;
(3) have good communication, research and analytical skills;
(4) have ability to handle pressure and work under minimum or no supervision;
(5) have excellent interpersonal skills; and
(6) have exemplary computer skills.

How to apply
Please send your Application together with a detailed CV, copies of academic and other relevant testimonials to info@salclaw.co.ke on or before close of business 18th July, 2015.

 

 

 

 

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PRENUPTIAL AGREEMENTS: Blessing or Curse?
PRENUPTIAL AGREEMENTS: Blessing or Curse? 150 150 Admin_salclaw

PRENUPTIAL AGREEMENT

A premarital agreement (also called prenuptial agreement or “prenup”) is a legal step taken before marriage whereby a prenup establishes the property and financial rights of each spouse in the event of a divorce.It is  a written contract between two  people who are about to marry setting out the terms of ownership of assets, how to treat future earnings between the two, control of the property of each and how the property will be divided in case of dissolution of the marriage. Prenups are common if one or both parties have substantial assets, or if where one has children from a previous marriage, or where ones property is subject to inheritances, or where parties have high incomes or where other people not party to the marriage have interest in one’s property.

Section 6 (3) of the Kenyan Matrimonial Property Act provides that parties to an intended marriage may enter into an agreement before their marriage to determine their property rights. A prenuptial agreement takes precedence over other principles of subdividing matrimonial property. While many would hold the opinion that proposing a prenup signifies that one is entering a marriage contemplating divorce statistics speak a different language, more divorce petitions are being filed in our Kenyan courts. A survey by Infotrack Kenya done on behalf of the Saturday nation 5 years ago revealed that, “only 40 per cent of Kenyans are happily married, the rest are either unhappy or not sure how to describe their unions while some 29 per cent of married Kenyans admit their marriages are headed for the rocks, while 31 per cent say they are not certain whether they are in a happy or unhappy union” Due to the rising divorce rates the need to provide for how your property will be divided becomes even greater.

The fear of the unknown is reason enough for one to opt for a pre-nuptial agreement, a pre-nup is like insurance i.e. when you get a life cover, medical cover or accident cover one does not anticipate that this things will ever happen and in most cases they never happen, the insurance cover provides that peace of mind that in case of any unfortunate eventuality you are covered. A pre-nup therefore presupposes that in case a divorce happens then this how you shall divide property.

A prenuptial agreement is therefore a key component of proper financial planning and ensures that your property does not form the basis of  a contentious issue as you get into marriage.

Advantages of having a prenuptial agreement include:

  1. Protects the separate property of spouses where one acquires property without the input of the other spouse.
  2. Protects property that has been acquired before a marriage.
  3. Provides for responsibilities and rights of the parties to a marriage, this however should not be contrary to the law.
  4. Facilitates smooth and faster divorce proceedings since property distribution has already been determined. One needs to note that property distribution is one of the things that makes divorce proceedings protracted, acrimonious and highly combative. A prenup helps to avoid such situations.
  5. Protects third parties who have an interest in property owned by a spouse.

In conclusion, the decision of whether to enter into a prenuptial agreement or not is a very personal decision. Each individual and couple is unique. Therefore, you should base your decision on your own unique situation and circumstances.

Written by

Mweresa Eugene Sudi

e-mail: sudi@salclaw.co.ke

SUDI & ASSOCIATES

 

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