THE RULE OF LAW

  It is a cardinal principle in the operation of AL. It provides that matters of governance should be based on the established laws and principles but not on the personal whims of the governors. It provides the starndards against which official action is accessed. It has its origin in the french phrase la principe de legalite. This refers to governance based on law and not of men. Lord Edward Coke is said to be the orinator in concept when he declared that the king must be under God and Law. The classic exposition of the principle of rule of law is to be found in the work of A.V Dicey the title ”introduction to the study of the law of the constitution”. Although the principle has different meaning, it is mainly understood to refer to 3 things in public administration that is:

1. •         Legality
2. •         Judicial independence
3. •         Fairness.

 

a)      legality

This aspect of the rule of law requires that everything must be done according to the law. In relation to administrative law every gvt authority which does some act that adversely affects the rights of a person must be able to justify that action as authorised by law. This authorisation could either be express or discretionary. Every gvt action must be legally sanctioned and any person aggrieved by such action must have the right to go to court and have such action or ommission invalidated if not in line with the laws. It requires gvt action to be conducted within a framework of recognised rules and principles and abhors(discourages) unlimited discretion. It would apply in cases where the legislature appears to have given overwhelming discretionary powers to a public authority. Rule of law seeks to strike a balance between the need of fair and efficient administration and the need to protect citizens from oppressive government.

The principle of legality is also applicable to criminal procedure and imposes a number of obligations including the requirement that no one should be punished except for some legally defined crime and the prohibition gainst retrospective application of legislation. This principle prevents Government authorities or those in Government from acting ultra vires.

 

b)     Judicial independence

Disputes about the legality of gvt actions are to be decided by judges who are independent of the executive. In the common law set up, dispute between citizens and the gvt are resolved by ordinary courts.

c)      Fairness

The rule of law requires that the law should be even handed between the citizens and the government. It denies the government unnecessary privileges or excemptions from ordinary law.

Incorporation of the Rule of Law by the Constitution

Express references in the constitution as regard the rule of law. The constitution requires respect for the rule of law in numerous aspects in its preamble. It requires respect for rule of law in numerous aspects in its preamble it recognises the aspirations of all Kenyans for a government based on the rule of law:

• Under Article 10 which provides for national values and principles which are supposed to bind all state officers, public officers and all persons also recognises the rule of law.

• In Article 91, an obligation is imposed on all political parties to promote the rule of law.

• Article 131(2)(e) requires the president to ensure the protection of the rule of law.

• Article 156(4)(a) and Art 156(6) requires the attorney general as the principle legal advisor to the government to promote, protect and uphold the rule of law.

• Article 238(2)(b) requires that national security be promoted and guaranteed in accordance with utmost respect for the rule of law.

• Article 259(1)(b) requires interpretation of the constitution to be in manner that promotes rule of law.

 

Natural justice require that procedure should not be secondary to the substance of a decision. Its logic is that as government powers and actions become more drastic and invasive, fair procedure would make them more tolerable. In origin and character, rules of natural justice are largely common law, though continually embraced by legislation. Courts play a critical role in ensuring that rules of justice do not run amok....the rules protect citizens from unfair actions while protecting public officials from unwarranted accusations. Decisions made without bias are not only more acceptable but also of better quality because they are consultative and avoid further friction in their enforcement

ICJ rules on ocean row/International Court of Justice (ICJ) sides with Somalia in sea border dispute with Kenya/ICJ rules in favor of Somalia over Kenya in long-running maritime dispute

 

The International Court of Justice (ICJ) ruled that Somalia, not Kenya, should control most of the triangle of water in the Indian Ocean over which Kenya has maintained sovereignty since 1979.




The area, measuring about 39,000 square miles, is believed to contain deposits of oil and gas and has been a source of tension between the two countries for years.








In her ruling, Judge Joan E. Donoghue, the ICJ president, dismissed Kenya’s argument that Somalia had already agreed to the maritime boundary claimed by Kenya.




Donoghue said the court determined that the boundary should run largely in the same direction as Somalia’s land border, with a slight adjustment, and rejected Kenya’s position that it should be along the latitudinal line at the border.




The ruling is legally binding, though the court has no enforcement powers.

Process of Filing for Child Support

 According to the Kenyan constitution, Article 53, a child has the right to receive parental care and protection. This includes equal responsibility for the father and mother to provide for their child regardless of whether they are married or not. Some of the organizations that can help you file for child support include: the National Legal Aid Programme (NALEAP), The Federation of Women Lawyers (FIDA), and CLEAR, an initiative of the Kenya Christian Lawyers Fellowship.

Any parent, custodian, or guardian of a child can file for child support. The following are some of the considerations that the court will make before granting an order for child support:

1. The financial needs, responsibilities, or obligations of each party
2. The earning capacity or income, property, or financial resources of each party
3. The child’s circumstances and their financial needs
4. The child’s training or education
5. Any mental or physical disabilities, medical conditions, or illnesses of the child
6. The religion, custom, and practices of the parties
7. The liability of other persons to support the child e.g. the liability of the stepparent or guardian

The process of filing for child support starts with hiring a lawyer. A lawyer will draft a letter to the party who is meant to pay child support. This approach is used to avoid the long court process. Both parents will then sit down, in the presence of their lawyers, to draft a parental responsibility agreement. This agreement is binding on both parties. After all the issues on child maintenance have been settled, the lawyer will register the agreement in court and it will act as a court order.


Alternatively, if the party who is required to pay child support resists a parental responsibility agreement, you could move to court and file a case for child support. The court will consider what is in the best interest of the child and look at all the above mentioned factors before granting an order for child maintenance.

The Law on Guardianship Agreement in Kenya

Background

In the ambit of Section 102 of the Children’s Act No. 8 of 2001, a guardian is as a person appointed either by will or deed by a parent of the child or by an order of the court to assume parental responsibility for the child upon the death of the parent of the child either alone or in conjunction with the surviving parent of the child or the father of a child born out of wedlock who has acquired parental responsibility for the child.

A guardian is then a person that assumes parental responsibility of a child upon the death of a parent and can be appointed by an order of court, an agreement or through a will.

Parental Responsibility is explained by the Children’s Act as all the duties, rights and authority by which the law accords to a parent of a child in relation to the child and the child’s property. The guardian can be any person and need not be a citizen or a resident of the Republic of Kenya. Furthermore, the guardian can be appointed in respect of any child who is resident in Kenya whether or not the child was born in Kenya.

What is a Guardian Agreement? What are its features?

A guardianship agreement is a legal document that is used to transfer the legal responsibility and care of a child to another party. The guardianship agreement appointing the guardian must be signed and dated by the person appointing the guardians and witnessed by two other people declaring the appointment of a guardian.

Guardianship is however, not equivalent to and should not be confused with custody of a child. Custody is expounded under Section 81 of the Children’s Act to mean the physical possession of the child. It has been previously noted that although anyone with custody of a child is a guardian not all guardians have custody.

Guardianship can be awarded both by courts and people with parental responsibility whereas custody can only be granted by the courts. Custody can be awarded to either the Parent, the guardian or any other person who applies to the court for custody but has had actual custody for three months before the application with condition of the parent or the guardian.

The guardian does not need to have custody of the child. He or she may be appointed whether in respect of the child or the Child’s Estate or both. In the case that the guardian is appointed in respect of the Child’s Estate, the guardian possesses:

1. The power to manage the estate of the child in his own name for the benefit of the child

2. The duty to safeguard the child’s estate from loss or damage

3. To produce the accounts in respect of the child’s estate to the parent or custodian as the court may direct.

The guardianship agreement terminates when the child attains the age of eighteen years unless exceptional circumstances exist that will make the court consider and extension of the appointment such as a mental or physical disability incapacitating the person from maintaining themselves or managing their property. However, the appointment may also be terminated by an order of the court at any time considering the application for the termination by a parent or a guardian of the child, the child concerned or a relative of the child. The guardianship can also be terminated when the court considers that it should be brought to an end even though no application has been made.

Each guardianship agreement is unique in itself as it varies on a case-to-case basis. Nonetheless, there are key constituents of Guardianship Agreements that recurringly occur in every agreement.

1. Parties to the Agreement

The parties to every guardianship agreement must be defined within the document. This will include the name of the child or the adult in need of the guardianship, the names of the parents or current guardians and the name or names of the suggested guardians.

· Duration

The agreement should indicate how long the arrangement is to last. Whether it be a temporary or emergency guardianship or a permanent guardianship. A guardianship agreement terminates when the child attains the age of 18 years except for special circumstances such as the mental or physical incapacity of the beneficiary of the arrangement. The agreement should clearly outline the duration the arrangement is expected to occur and the possibilities for its extension.

· Purpose of the Guardianship

The agreement should have to clearly stipulate the specific purpose that the guardianship is required to fulfil. This should also include whether the guardianship pertains to the child alone or the child’s estate or both the child and the estate of the child. This section of the agreement is for the avoidance of doubt and to ensure the purpose of the agreement is particularly met in the best interest of the child.

The process of buying property/Land Transfer in Kenya

  The process of buying property in Kenya is as below;

1. 1. Identify the property you would like to buy

2. 2. Conduct legal due diligence

3. 3. Carry out the transfer of the property

Identify the property you would like to buy

The most popular way is by word of mouth or through a real estate agent or through newspaper advertisements. You can also talk to lawyers who are sometimes contracted by their clients to sell property on their behalf.

Conduct legal due diligence

At this stage, it’s important to identify a lawyer you would like to work with who will help you with the following stages of the transaction

Conduct a search

Why do you need to conduct a Search?

1. To ascertain the ownership of the property

2. To check the property for any encumbrances

3. To check for any land rates that may have accrued.

If it’s a company or land buying company, obtain the CR12 from the Registrar of Companies to ascertain that;

1. The company is still in existence.

2. Who are the directors of the company.

You may further want to do a case search on the Kenya Law website to ascertain that the company/Housing Sacco has not been sued by other buyers for similar transactions. It may be useful to visit the company offices or contract someone to do the same on your behalf.

A search is done at the Ministry of Lands registry and could take 1-3 days.

Land Survey Plan
A land survey plan is a specialized map of a parcel of land . It determines and delineates boundary locations, building locations and physical features .The plans are issued by the Ministry of lands and Physical Planning through the Department of Survey.

Obtain the Land Clearance Certificate and Land Rent Certificates

Depending on the land tenure regime, the land rates and rent if unpaid will need to be paid so that you can obtain the Clearance Certificates.

Valuation of the Land and Payment of Stamp Duty

The Government Valuer will visit the property so as to ascertain the value of the property. The stamp duty will be assessed based on the value given by the Government Valuer. The next step is the payment of the stamp duty to the Kenya Revenue Authority. For this, you will require both the transferor and transferee PIN. Depending on the value of the property, a Capital Gains Tax may apply. Read more about Capital Gains Tax here.

Carry out the registration and transfer of land

Once you are satisfied that the property is free from any encumbrances or illegalities, your lawyer should draft a sale agreement for both the transferee and transferor to sign. Some agreements may provide that at least a deposit of 10% of the purchase price be paid upon signing of the sale agreement.

Both the buyer and seller will be required to provide the following documents;

1. National Identity Card/Passport

2. Personal Identification Certificate (PIN)

3. 3 copies of photographs

Transfer process

Once stamp duty has been paid, the transfer documents are lodged with the Registrar of Lands. The Registry will process the transfer and the registration process will be complete upon entry and change of ownership of the title.

Duration

A land transfer process currently may take upto Four (4) to six (6) months due to the delays at the Registry. There is currently a digitization process that is taking place that may make the process shorter.

Legal fees associated with the transfer of property in Kenya

Legal Fees are regulated in Kenya and the fee charged is based on the Remuneration Order.