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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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LEGAL ALERT: PAYMENT OF STAMP DUTY AND CAPITAL GAINS TAX
LEGAL ALERT: PAYMENT OF STAMP DUTY AND CAPITAL GAINS TAX 150 150 Admin_salclaw

The Kenya Revenue Authority, has informed the public that it is in the process of simplifying the Stamp Duty payment process on land transactions on the Itax System and thereby expediting the payment process.

 

Following the changes, it will no  longer be conditional to present a Capital Gains Acknowledgement Slip before stamp duty payment is processed, as had been the case before. This reform is expected to improve the ease of doing business by creating efficiency in the process and promoting investments.

 

TAKE NOTE that transfer of property still attracts Capital Gains Tax which is payable by the transferor on or before the 20th day of the following month in which the transfer is effected.

 

Be advised accordingly

 

SUDI & ASSOCIATES

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LEGAL ALERT: IMPACT OF CORONA VIRUS ON BUSINESS CONTRACTS-FORCE MAJEURE
LEGAL ALERT: IMPACT OF CORONA VIRUS ON BUSINESS CONTRACTS-FORCE MAJEURE 150 150 Admin_salclaw

Overview
The outbreak of Coronavirus is impacting global markets, trade and commerce. Quarantine and travel measures have begun to impact local businesses and the supply chains supporting them. Many businesses may thus seek to rely on force majeure clauses or other contractual rights for relief from the performance of certain obligations due to the impact of the Coronavirus outbreak.
What is force Majeure
Force majeure refers to a clause that is included in contracts to remove liability for natural and unavoidable catastrophes like war, natural disasters, terrorist attacks Etc that interrupt the expected course of events and restricts parties from fulfilling their obligations under the said contracts.
What does your force majeure clause actually say?
There is no single “standard” force majeure clause. Just because your business may include force majeure clauses in its contracts does not mean they are necessarily all uniform. Since the virus is a relatively new phenomenon, it is unlikely that any force majeure clauses would explicitly refer to the event of a Coronavirus outbreak. Thus the party relying on the clause will still likely need to prove that the force majeure event was not “reasonably contemplated” by the parties when making the contract, and that the event is “beyond the reasonable control” of the party seeking relief.
How can you seek / prevent relief for force majeure?
The onus is on the party seeking to rely on the force majeure clause to prove that the force majeure event has prevented, hindered, delayed or affected the performance of the contract. Generally, if a force majeure event occurs, performance of certain obligations within the contract will be suspended for a specified period of time (for example, until the Coronavirus outbreak is contained or its consequences on the contract parties come to an end). In some cases, a suspension of obligations may not be viable and parties may seek to terminate the contract entirely.
Is notice required?
Force majeure clauses vary in their notice requirements. Some require notice within a certain timeframe of the occurrence of an event of force majeure, whereas others only require prompt or “reasonably” prompt notice. In the context of the coronavirus pandemic, is notice required upon WHO’s declaration the coronavirus outbreak a pandemic? Was it when a travel ban was entered? Was it when a local lock down measures were enacted?
What if there is no force majeure clause?
If there is no force majeure clause one can rely on the doctrine of frustration which means that events beyond their control may occur which frustrate the purpose of their agreement, or render it very difficult or impossible, or as even illegal, to perform obligations under a contract.
Understanding Your Contract
Be sure to fully understand what the contract requires for one declare a force majeure event. Many force majeure provisions include procedural requirements the claiming party must abide by in order to effectively enforce the provision, including notice requirements.

By Eugene Sudi
SUDI & ASSOCIATES
sudi@salclaw.co.ke

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LEGAL ALERT: ABC’S OF PRENUPTIAL AGREEMENTS IN KENYA
LEGAL ALERT: ABC’S OF PRENUPTIAL AGREEMENTS IN KENYA 150 150 Admin_salclaw

a. What is Prenuptial Agreement
A Prenuptial Agreement or “Prenup”is a written agreement that establishes the property and financial rights of each spouse in the event of a divorce. It sets out the terms of ownership of assets, how to treat future earnings in a marriage, control of the property of each and how the property will be divided in case of divorce.
b. Necessity
1. The divorce rate in our country has been rising steadily over the past 3 decades so divorce is now an acceptable reality.
2. Many people enter marriage with some debt, and their partners may want to protect themselves from those financial problems if the marriage ends.
3. Increased number of financially independent women who may want to protect their financial interest in a marriage.
4. Most people view a Prenup as a bet against the success of the marriage. But marriage is a contract and a Prenup is simply a way of putting guidelines on that contract.
c. Legal Backing
1. Article 40(1)(b) of the Constitution of Kenya, 2010 (the Constitution) provides for the right to own property in any part of Kenya either individually or in association with others.
2. 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 whereby a prenuptial agreement takes precedence over other principles of subdividing matrimonial property.

d. Validity of a Prenuptial Agreement
1. The agreement must be freely entered into.
2. The parties must have a full appreciation of the implications of the agreement.
3. It must not be unfair to hold the parties to their agreement in the circumstances prevailing.
4. Must be signed before the formalization of the marriage.
e. What should a Prenup Cover
A prenuptial agreement is most important when it comes to protecting pre-marital financial interests, such as retirement, investment funds, property and other finances and most importantly debts. It should also cover how sentimental items should be handled because these have strong emotional triggers that can often become the focal point of messy divorces.
f. Courts power to set aside a Prenup
Section 6 (4) of the Matrimonial Properties Act gives courts the power to set aside this agreements if it is proven that it was influenced by fraud, coercion or is manifestly unjust.
BY Eugene SUDI

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LEGAL ALERT :EXTENSION OF PARENTAL RESPONSIBILITY
LEGAL ALERT :EXTENSION OF PARENTAL RESPONSIBILITY 150 150 Admin_salclaw

Did you know that an order for extension of parental responsibility, in regards to payment of fees, can be issued to a person who has attained the age of 18 years where the training/school he has enrolled for has not ended, the High Court in Civil Appeal 34 of 2017 stated in summary that despite a person attaining the age of majority which is 18 years and at that time has neither completed his education nor gotten gainful employment then the parents having set high standards for their children, have a responsibility to promote their social progress and better standards of life for them especially children who are willing and who are self-driven .It is against the child’s right to education for a parent to discontinue their education prematurely on account of them being adults.

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LEGAL ALERT:Employees wooed by Kshs. 9,000 monthly tax relief under the Affordable Housing Programme
LEGAL ALERT:Employees wooed by Kshs. 9,000 monthly tax relief under the Affordable Housing Programme 150 150 Admin_salclaw

The Affordable Housing Programme (AHP) has been in the list of president Uhuru’s Big 4 Agenda. The said programme seeks to provide affordable housing for Kenyans in the low and middle income segment.The programme launched in January, 2019 seeks to roll out 500,000 units by 2022 to try and plug the housing gap in the country.
To spur uptake and interest in the programme, the Government of Kenya through an amendment to Finance Act 2019 and the schedules therein has provided a tax relief to employees that will allow them a tax relief of 15% of gross contributions capped to KSh. 108,000 per year or KSh. 9,000 per month of their income. Employers will be allowed to reduce their employees’ Pay As You Earn (PAYE) payable by 15% of the gross contributions to the Affordable Housing Scheme and this relief will be termed as Affordable Housing Relief. For instance, a person earning Kshs. 90,000 a month is currently liable to pay KRA Kshs. 20,740 but under the housing incentive plan, their income tax would reduce to Ksh11, 740.

The Kenya Revenue Authority (KRA) will be required to issue details on tax relief to employers. Technically, saving into the housing fund has become voluntary as only workers who will have registered for the programme will enjoy the relief.

Initial plans to force employers to deduct the equivalent of 1.5 per cent of workers’ pay to the housing fund mandatorily were dashed by the courts which ruled that the proposal was illegal.

By Eugene Sudi

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LEGAL ALERT: Turnover Tax
LEGAL ALERT: Turnover Tax 150 150 Admin_salclaw

Turnover Tax
In accordance with the Finance Act, 2019, the Turnover Tax (TOT) has been re-introduced and will be payable from 1st January 2020.

Who should pay TOT?
Turnover Tax (TOT) is payable by any resident person whose turnover from business does not exceed or is not expected to exceed Kshs 5,000,000 during any year of income.

TOT does not apply to:

Persons registered for VAT
Persons with business income of Kshs 5,000,000 and above,
Employment Income,
Rental Income,
Limited Liability Companies,
Management and Professional Services among others.

What is the rate for Turnover Tax (TOT)?
The tax rate for TOT is 3% on the gross sales/turnover and is a final tax.

Filing of TOT Returns
TOT will be filed and paid on a monthly basis. The due date is on or before 20th of the following month.

Note
TOT payers are also liable to pay Presumptive Tax at a rate of 15% of the Single Business Permit fee payable or licence payable. However, Presumptive Tax paid will be offset against the TOT payable.

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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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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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