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Child maintenance proceedings should not be employed to serve ulterior motives against fathers, court rules.
Child maintenance proceedings should not be employed to serve ulterior motives against fathers, court rules. 150 150 Admin_salclaw

The High Court in (JR. 5 of 2020) has ruled that in Child maintenance disputes, courts are supposed to take into account the financial means of both parents to avoid overburdening and arbitrarily purging either of them. This decision was made after a man who had been jailed for a month on account of failing to honour a court order that required him to pay Ksh. 900,000 towards child upkeep, sued to the High Court at Mombasa on the constitutionality and fairness of the process adopted by the magistrates’ Court in issuing the order. In his judgment, Justice Ogola held that the magistrate, who was the first respondent, acted outside the laid down legal procedure by failing to take heed of section 101 of the Children’s Act. Notably, the said section 101 under subsection 4, mandates courts to conduct inquiries pertaining to the financial ability of persons liable for child maintenance to pay the sums of money they owe.

It was revealed that the man had made an application in the trial court to have an inquiry on the parties’ financial position conducted, which was granted. However, before a report on the parties’ financial position could be presented, the trial magistrate went ahead and declared that the man had intentionally ignored and disobeyed a previous court order before committing him to jail. It is this bizarre turn of events that the judge took utmost issue with, adjudging the magistrate’s decision to proceed in the absence of the financial report to have been irregular, unreasonable, and unfair.

Consequently, the judge expunged the orders of contempt and committal and subsequently directed the Magistrates’ Court to conduct a proper investigation into the man’s financial capability in order to reach a fair arrangement regarding the contributions of both parents towards the minor’s care and upkeep without overwhelming either of them.

Written by Edward O. Sudi

edwardsudi@salclaw.co.ke

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YOUR RIGHTS DURING A POLICE INVESTIGATION!
YOUR RIGHTS DURING A POLICE INVESTIGATION! 150 150 Admin_salclaw

Police and the state in general, are empowered to conduct investigations in a bid to solve crime and bring criminals to book. Indeed, members of the public are required to comply with summons requiring their attendance at police stations for the purpose of investigations. Tellingly, failure to honour requisitions for attendance at police stations without a plausible excuse is an offence. Similarly, showing up at a police station and refusing to respond to the questions that may be legitimately asked or untruthfully responding to them amounts to an offence. However, a person is under no obligation to respond to questions that may tend to expose him/her to a criminal charge or penalty. This exemption springs from the constitutional right to refuse to give self-incriminating evidence afforded to a person involved in a criminal inquiry.
Crucially, a police officer who seeks to record a statement from a person against whom a criminal charge may be preferred or who is already facing a criminal charge MUST WARN such a person that the statement they will make may be used as evidence against them. If such a person forfeits their right to remain silent after being warned and moves on to record a statement, then any admissions they make in their statement may be legally used against them in a criminal trial. Although admissions need not be given voluntarily as the Supreme Court observed, confessions, on the other hand, MUST be procured through express consent from the person providing it. To this end, it must be appreciated that despite all confessions being admissions, not all admissions are confessions. The difference lies in the effect either of the two would have in a criminal case.
A confession would automatically return a guilty verdict because it is an express and explicit acknowledgement of guilt by an accused person. Further, there are strict rules to be followed in order for a confession made in a police station to be accepted in court. Conversely, an admission is an acknowledgement by an accused person of a matter (s) relevant to a criminal charge, which may give the impression that the accused is guilty. Since an admission only insinuates that the accused is guilty, it cannot, by itself, be used to render a conviction; other evidence is hence required to support an admission. Therefore, it follows that an incriminating revelation made voluntarily by a suspect or accused person to police officers in the course of investigations would be treated as an admission if such a revelation is not recorded in strict compliance with the Evidence Act so as to be regarded as a confession under law. This position, which was reiterated by the Supreme Court, is an effort to strike a balance between the rights of persons under a criminal inquiry, and the rights of the public to peace and security . So that, the constitutional mandate of security agencies to maintain/restore peace and security is not hampered by the rights of persons under criminal inquiry, and vice versa.

Way forward: It is best for any person subjected to police investigations, who fears that the information they may disclose will cast them in the bad light of being viewed as the culprits, to choose to remain silent on that aspect.

Prepared by Ochwaya E. Sudi
Advocate of the High Court of Kenya

Edwardsudi@salclaw.co.ke

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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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