THE LANGUAGE OF THE CONSTITUTION

The general language and ordinary interpretation of Article 45(3) suggest that couples have 50/50 co-ownership of property.
Article 45(3) reads:

"Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage".

DISCUSSION
There needs to be a change in the interpretation of the Constitution through transformative adjudication.

The Constitution sees the judge as the master of the Constitution who, however, is not free to produce whatever interpretation of the Constitution he chooses. He is to interpret it objectively according to the rules that the Constitution provides.

The Constitution is a living instrument which must be construed in light of present-day conditions. As such, the judiciary is entrusted with the task of its development through its purposive and general interpretation.

Courts to deliver substantive justice that is to be inferred from the underlying/foundation values of the Constitution.

The Constitution through its application of concept envisages that it is not preservative but rather transformative.

A transformative Constitution is one which tries to change something essential in the Constitutional or legal culture in which it is enacted to make life different in the future, to remake some part of the culture.

It allows the law to be developed and interpreted by the courts to promote the purpose, spirits and the objects of the Constitution.
The Law evolves within the framework of the Constitution.

It aims at inducing a large-scale social change through non-violent progress grounded in law. It encourages the creation of a highly egalitarian, multi-cultural community, governed through participatory, democratic process in both public and private spheres.

CONCLUSION

Great verdict by the Supreme Court to squash the 50-50 rule.
They have successfully restored the good old family values that discourage gold-digging.

As values are normative, the symbiotic relationship between values and the legal content of the respective rights defines the easy definition of the meaning of "Transformative Adjudication" or what radicals will call "Judicial Activism".

50/50 Co-Ownership of Property in Marriage

How to lend money to family and friends (And Get Paid Back)

MINI-THREAD

Lending money to a family member or a friend, you might feel that his or her word, or a handshake, is enough to seal the deal. Unfortunately, disagreements do arise. Don't ever give someone money based on word of mouth.

Protect yourself by creating and signing a document called a PROMISSORY NOTE in order to detail and record the terms of the loan agreement.

A promissory note is a written promise to pay someone. It is a formal document that outlines the terms of a contract between two parties. It includes things like interest rates, repayment schedules, and other aspects of the debt.

A promissory note is one way to legally enforce a loan agreement with another party. If someone fails to honour the promise, you can sue him or her in court and you can present the promissory note as exhibit

Advantages of a promissory note;

1.  Promissory notes make the agreement legally binding

2. A promissory note gives the lender peace of mind

3.  Promissory notes hold you accountable

4.  Promissory notes keep records clear for taxation purposes

5.  It's professional

If you want a more detailed and comprehensive agreement you can have your lawyer draft you a LOAN AGREEMENT

A Loan agreement is a standard type of document that sets out the terms of a loan and its repayment.

It should be used whenever a substantial amount of money is involved, particularly if the lender and borrower are not very closely linked or wish to keep things on a more formal footing.

This agreement should be used by all types of small business, including companies, partnerships and LLPs, General partnership and Limited partnerships (LLPs), and sole traders.

Both loan agreements and promissory notes are enforceable legal contracts that specify how debts will be repaid. However, the conditions of a loan arrangement are often more detailed and rigid, and the borrower is subject to additional duties and limitations.

In contrast to a promissory, which is normally unsecured, it frequently incorporates security measures (such as putting up a property as collateral).

Generally speaking, a promissory note should be enough if only a little sum of money is at stake and there is a high degree of confidence between the lender and the borrower (or debtor).

A loan agreement is more prudent, though, if there is a sizable amount at stake and the parties are not well acquainted.

Both documents are drafted by Lawyers.  Don't attempt to write them on your own.

Reach out for comments, contributions, discussions on 0733 610 961 for both Calls or WhatsApp

END OF THREAD

Lending Money to Friends and Family, Keep it Strictly Business

How to legally acquire your deceased parents Assets.

The law respects the dead's propert.

{MINI-THREAD}

When a person passes away with a valid Will, his or her assets are handled and distributed in accordance with the terms of his Will.

If a person left behind a valid Will, they are said to have passed away TESTATE.

What is a will? A will, sometimes called a "last will and testament," is a document that states your final wishes, including how you want to distribute your property. The court makes sure that your final wishes are carried out.

By allocating the deceased's property in accordance with his wishes, a will gives the surviving family members of the deceased peace of mind.

Family conflicts that are likely to occur during property division are avoided or reduced.

A will can be used to distribute both movable and immovable property, including money, stock/shares in a company, intellectual property, and personal effects and ofcos, Real property- LAND.

In order to handle any matters pertaining to the estate of the deceased person in accordance with the provisions of the Will and the Law of Succession Act (Cap 160) Laws of Kenya, the executors (male) or executrices (female) must first obtain a Grant of Probate.

When a person passes away without leaving a will or in a situation where the will is invalid, the Act's rules are followed to administer and dispose of the deceased's property.

If a person leaves behind either an invalid will or no will at all, it is said that they passed away INTESTATE

The process entails the grant of Letters of Administration Intestate to the Administrators.

This gives them the power to manage the decedent's estate in accordance with the rules of the law.

A petition for Letters of Administration Intestate and receiving a Confirmation of Letters of Administration Intestate are the procedures for obtaining a grant of such letters.

Petition for Grant of Probate (A person who died having written a will):

Getting a grant of probate involves the following procedures.

The High Court of Kenya must be petitioned by the executors of the decedent's estate in order to obtain a Grant of Probate.

A schedule of the assets and liabilities of the decedent's Estate, along with an approximation of their values, must be included in the affidavit that is submitted with the petition.

A copy of the asset's ownership documentation must be included.

The petition is then submitted to the Family Division of the relevant High Court, where the Court Registrar reviews it to ensure that it is in order before determining the filing fees that are owed to the Kenyan Judiciary.

A notice of the petition is published in the Kenya Gazette after the filing fees have been paid.

After filing fees are paid, a notice of the petition is published in the Kenya Gazette to inform the public of it and give anyone with a claim to the decedent's estate the chance to object to the grant of probate going to the executor.

The executor(ices) should apply to the High Court for extraction of the signed and sealed Grant of Probate, which will identify them as the legally appointed executor(ices) of the Estate, after 30 days of the notice of the petition appearing in the Kenya Gazette

After receiving the signed and sealed Grant of Probate, the executor (or executors) must wait the required six months before applying for the Grant to be confirmed.

If approved, they will then be given a Certificate of Confirmation of Grant of Probate, which gives them the authority to distribute the assets of the Estate in accordance with the terms of the Will.

Petition for Letters of Administration (A person who died without a will):

Letters of Administration Intestate must be requested from the High Court by at least two individuals.

The surviving spouse is typically given preference, but if the surviving spouse is unable to petition the court, the adult members of the family may decide among themselves who should.

The petition must be filed in the closest High Court to the place where the deceased person was residing when he or she passed away.

An affidavit in support of the petition from the petitioners is required with the formal legal document known as a petition for Letters of Administration Intestate.

The petition should include a schedule of the estate's assets and liabilities, along with an estimate of their values, proof of ownership, the decedent's death certificate, and a letter from the local chief stating that he was acquainted with the decedent.

And p oviding information about the beneficiaries and dependents of the estate

The petitioners must swear affidavits of justification demonstrating to the court that they are solvent and have the capacity to fulfill their duties as Administrators.

Additionally, the petitioners must appoint other impartial parties as sureties for the full amount of the net Intestate Estate, and these parties must subsequently reassure the court of their financial viability.

The petition is then submitted to the Family Division of the relevant High Court, where it is reviewed by the Deputy Registrar, who then determines the filing fee that must be paid to the Kenyan Judiciary.

The Administrators should apply to the High Court for the extraction of the signed and sealed grant of Letters of Administration, which will identify the Administrators as the duly appointed Administrators of the Estate...

..and state that they have agreed to faithfully administer the Estate, after 30 days of the notice of the petition appearing in the Kenya Gazette.

The Administrators must wait the required six months after receiving the signed and sealed Grant of Letters of Administration before requesting that the Grant be confirmed, at which point they will receive a Certificate of Confirmation of Grant of Letters of Administration.

The estate's administrators must now inform the court of how the estate will be distributed.

Once the court approves the mode of distribution and is satisfied with it, it will issue the Certificate of Confirmation of Grant of Letters of Administration intestate.

The Administrators will then have the power to distribute the estate's assets to the beneficiaries in accordance with the court-approved method of distribution.

Holders of representation grant (grants of probate & grants of letters of administration intestate) may apply to the court in certain circumstances under the Law of Succession, & the court may order that the grant be confirmed before the end of the 6 month period if...

It is satisfied that:

a. The deceased had no dependents, or the only dependents were of legal age (adults) and agreed to the application;

b. That it would be practical and quick under all circumstance
c. There is no dependant of the deceased other than the petitioner;


d. No estate duty is payable in respect of the estate; and

e. It is deemed to be just and equitable in all circumstances of the case to immediately issue a confirmed grant of representation.

Reach out for comments, additions, discussions on 0733-61-09-61 for both WhatsApp & Calls

END OF THREAD

SUCCESSION & INHERITANCE: WHEN THERE IS NO WILL LEFT BY THE DECEASED

WANT TO SUE YOUR BABY DADDY FOR CHILD SUPPORT!

A THREAD (Mini Blog) 👇🏽

...


The law loves children and will go to any length to protect them.

The new Children Act, 2022 has not only rekindled his love, but has also renewed the vows.

Child maintenance and child support are now strictly enforced under the new law.

This firm stance stems from the CONSTITUTION Article 53, which mandates that
“a child has the right to parental care and protection”.

Translation - EQUAL RESPONSIBILITY for both the father and mother to provide for their child, whether or not they are married.


Hiring a lawyer is the 1st step in filing for child support. A lawyer will draft a Demand Letter to the father of the child responsible for paying child support. Drafting a Demand Letter is the first step taken by lawyers
This strategy is used to avoid the lengthy court process

Both parents will then sit down with their lawyer to draft a parental responsibility agreement (PRA)

A PARENT RESPONSIBILITY AGREEMENT is a legal document that indicates the arrangement between a mother and a father for their child(ren).

The PRA gives parents who don't live together anymore a peaceful solution that enables both of them to take part in raising their kids without having to fight that tedious and exhausting court battle.

(Highly dependent on how reasonable the ex-couples are)

A well dratted PRA will outline all duties, rights, power, responsibilities and authorities that are granted to a parent of a child by the law in the matters that concern the child and the child’s property


When calculating what each parent will contribute, it is critical to consider the general responsibilities of parenthood. Each parent has five primary duties and responsibilities:

1.  To provide the child with food, clothing and a place to live (RENT & FOOD MONEY)

2.  To financially support the child (UPKEEP MONEY).

3.  To provide medical care (HOSPITAL, DENTAL, OPTICAL BILLS etc).

4.  To provide an education (SCHOOL FEES).

5.  To provide safety, supervision and control.

The parties will discuss the total costs and pen it down on paper. This agreement binds both parties as they will sign it and the lawyer will register the agreement in court, which will serve as a court order.

If the parties cannot agree or reach an amicable agreement, one of them may file a motion in court. The court will hear the parties and issue an order determining how much each parent will contribute to the child's maintenance.

The Court can even order the baby daddy's employer to deduct a certain percentage of his monthly salary.

Every month, the money will be sent to the child's mother, cut directly from the payslip.

NOTE: it is best to hire a skilled lawyer or one who specializes in child custody/support to assist you with the calculations and negotiations.

Consult with your lawyer for more information on the same

You can read the unrolled version of this thread here: https://typefully.com/Max_Wafula/i9U7e78

SUING YOUR BABY DADDY FOR CHILD SUPPORT!

A Thread...

Compensating the Road Accident Victims - Citizens Advice 

1/15

The many car accidents in Kenya remain one of the leading causes of injury requiring medical treatment. Sadly, a number of these accidents result in death. 

If you or a loved one has been involved in a car accident there are important steps you need to take to protect your legal claim. 

One maxim that any experienced car accident Lawyer will tell you is that the sooner your "team" starts collecting evidence and locating witnesses for your injury or wrongful death case, the more likely you will get the top available recovery.

Under Kenyan law, you are entitled to compensation for injuries incurred in road accidents. Also, if someone dies in a road accident, their dependents are entitled to compensation

Conventionally, the negligent party bears the liability for road accidents—they are required to compensate the people injured due to their negligence.

The most used way of negligence determination is finding out who had contravened traffic rules. If it is proven that a road accident was caused by a driver’s violation of traffic rules, the fault falls on their side. 

You should claim compensation as soon as possible after the accident. The process starts with filing a compensation claim. Also, you have the option of settling the claim with the negligent party out of court. 

If the negligent party had insured their vehicle against the damages arising from the accident, their insurance (firm) would pay your claim. 

But If you feel that the insurer is not awarding you what you deserve, or if you are unable to agree with the negligent party out of court, the only option remaining is to allow the claim case to proceed to full trial. There is more money in the full trial

Besides compensation for injuries, you can claim compensation for general and special damages. These include pain and suffering, and loss of income. 

For instance, if the injuries you suffered in the accident render you unable to do your daily income-generation activities, you are entitled to compensation for such loss. Courts consider many factors to determine the amount of compensation you are entitled to. 

Normally, the court awards millions if the injuries are severe or fatal. The factors include your level of negligence, the extent of the injuries suffered, and whether you can prove the losses you are claiming compensation for. 

This means it is essential to keep records of your medical expenses as well as your doctor’s recommendation on future treatment needs. 

More importantly, the magistrate will award compensation based on the facts raised by your lawyers, so it is imperative to have an experienced lawyer arguing out your case.

FOR DISCUSSIONS, ADDITIONS, OR QUESTIONS 

CALL OR WHATSAPP ON 0733610961 

Email me at maxxwafula@gmail.com 

SMALL CLAIMS COURT THREAD!!

Does someone owe you money and has refused to pay you back? Worry no more because things have changed.
What if I told you that you can get that money back within weeks.

Simply sue them in the Small Claims Court...

The Small Claim Court is a newly introduced court by the Judiciary of Kenya vide Gazette Notice 3791 dated 23rd April 2021, governed by the Small Claim Act. 

The court is designed to settle civil and commercial disputes in a timely manner with regards to minimum rules, fewer formalities and less technicalities. It is also meant to reduce the backlog in the Magistrates' court.

The Court is mandated to provide a judicial determination of disputes involving small amounts of money not exceeding one million shillings.

Meaning that if someone owes you money between 10,000 to 1 million shillings that's where you take them. If the amount is above a million shillings you will have to take them to the usual court which is the Magistrate Court.

This new court is a blessing since it employs new procedures and techniques to dispose of the case. It was designed to help ordinary Kenyans access justice without having to know much about the law or the tedious procedures courts use. 

The process is inexpensiveness, speedy, and simple unlike that of the Magistrate Court which you might have to wait for 10 years to have your case determined.

I once had one case determined within 29 days. The judgement was issued and we went on to auction the defendant's car to offset our debt through the aid of auctioneers who are very competent and eager to do their work.

Otherwise, the Small Claims Court Act requires matters to be resolved within 60 days of being lodged.

The nature of claim this court settles include money from:-

1.  Any contract relating to money held and received.

2.  Contract for sale and supply of goods or services.

3.  Compensation for personal injuries, be it accident claim, work-related accident.

If your case falls in any of those categories then you are a potential guest to this court.

The Small Claims Court Act requires matters to be resolved within 60 days of being lodged.

But typically you will get your judgement after 4 weeks after filing your claim if the matter goes uncontested.

Everything has been expedited, no time-wasting. Few Mentions are called out then soon thereafter you head straight to Hearing. Judgement must be pronounced the same day on Hearing or three days after the close of Hearing.

If the Judgement is entered in your favour you may:-

a) SALE - a property of your debtor (preferably a car or land)
b) ATTACHMENT OF SALARY - you will take one-third of your debtors salary every month
c) ARREST - commit the debtor to civil jail for 6 Months
d)... et cetera

Another advantage of this court is that you can represent yourself. You do not need to hire a lawyer to represent you. 

You simply just have to fill in a form stating your names, your debtor's names, the amount owed to you and attach some documents to prove the existence of the debt (such as the contract/agreement). 

This is a departure from the traditional pleadings (forms) that contain legal structures and complexities that only lawyers can understand.

Don't ever let people die with your money especially if you are a business owner, it will sink your business. You have worked hard for it and it's only fair that you get it back. Don't let them slide either, SCC has made it easier to get all your debts back

THIS ARTICLE DOES NOT CONSTITUTE LEGAL ADVICE AND SHOULD NOT BE RELIED UPON AS SUCH.

FOR DISCUSSIONS, ADDITIONS, OR QUESTIONS CALL/ WHATSAPP ME ON +254733610961 FOR A FREE APPOINTMENT

You can read the unrolled version of this thread here: https://typefully.com/Max_Wafula/5aWjWeU

SMALL CLAIMS COURT THREAD...

Does someone owe you money and has refused or delayed to pay you back?
Worry no more because things have changed.

What if I told you that you can get that money back within weeks.

Simply sue them in the SMALL CLAIMS COURT 

A thread...

The Small Claims Court is a newly introduced court by the Judiciary of Kenya vide Gazette Notice 3791 dated 23rd April 2021, governed by the Small Claim Act. 

Meaning that if someone owes you money between 10,000/- to 1 million shillings that's where you take them. If the amount is above a million shillings you will have to take them to the usual court which is the Magistrate Court.

I once had one case determined within 29 days. The judgement and decree were issued and we went on to auction the defendant's car to offset our debt through the aid of auctioneers who are very competent and eager to do their work.

a) SALE - a property of your debtor (preferably a car or land)
b) ATTACHMENT OF SALARY - you will take one-third (⅓) of your debtors salary every month
c) ARREST - commit the debtor to civil jail for 6 Months
d)... et cetera

You can read the unrolled version of this thread here: https://typefully.com/Max_Wafula/AkvTJYH