The Distinction between An Employee and an Independent Contractor

Essentially, employment law provides a number of safeguards to workers classified as employees that are not available to workers classified as independent contractors.

An employee is generally one who “works under the direction of a supervisor, for an extended or indefinite period of time, with fairly regular hours, receiving most or all of his income from that one employer.” Section 2 of the Employment Act, 2007 defines an employee as: - a person employed for wages or a salary and includes an apprentice and indentured learner.

On the other hand, an independent contractor typically has the bargaining power “to negotiate a rate for the use of [a special] skill.” An independent contractor also “serves multiple clients, perform[s] discrete tasks for limited periods, and exercises great discretion/control over the way the work is actually done.”

Significant documents during the subdivision process in land

  While waiting for subdivision to be completed, you should hold the following key documents as proof of ownership or transaction:

1️⃣ Sale Agreement (if you bought the land)

✔ A signed sale agreement between the buyer and seller showing details of the land and payment.

2️⃣ Acknowledgment of Payment

✔ If you have paid in full, ensure you have a receipt or proof of payment from the seller.

3️⃣ Mutation Form (Application for Subdivision)

✔ If the land is being subdivided, the mutation form is submitted to the surveyor and land office.

✔ This document shows the planned subdivision and the new parcel numbers.

4️⃣ Copy of the Mother Title Deed

✔ Since the new title is not yet issued, keep a copy of the original (mother) title deed under which your portion falls.

5️⃣ Land Control Board (LCB) Consent (if applicable)

✔ If it's agricultural land, LCB consent is needed before subdivision and transfer.

6️⃣ Surveyor’s Report & Map Extract

✔ The surveyor will create a new map showing how the land is subdivided.

✔ You should get a copy of the surveyor’s report and sketch plan.

7️⃣ Letter of Land Allocation (if applicable)

✔ If the land is from the government or a settlement scheme, a letter of allocation may serve as interim proof of ownership.

8️⃣ Land Registry Application for New Title

✔ Once the subdivision is approved, an application for a new title deed is made at the Land Registry.

🔹 Key Tip: Ensure the subdivision is properly registered and approved to avoid future disputes! 🏡

Courtesy of: Mr. Njogu

How many Administrators are required by law?

The maximum number of Administrators is a statutorily prescribed four (4) persons. Section 56 of the
Act provides that a grant of representation cannot be made to more than four (4) persons in respect of the
same property.

Where property is devolving upon a minor and a continuing trust arises, section 58 of the Act provides that no Grant of Representation can be issued to a sole Administrator, there must be two (2) or more administrators in such a case.

THE SUCCESSION PROCESS IN KENYA - INTESTATE SUCCESSION

Inheritance by beneficiaries is based on the provisions of the Law of Succession. 

The law entitles the following persons to petition Court for Letters of Administration and/or become beneficiaries to the deceased estate in order of priority: 

– The Spouse + Children; 

- or If the deceased had no children: the deceased’s father; or if dead, the deceased’s mother; or if dead, the deceased’s siblings; or if dead, the deceased’s children of siblings; or if dead, the deceased’s half siblings; or if dead, any other blood relative.

- If the deceased had no relatives, the net estate is put into the Government of Kenya’s Consolidated Fund

Where the Deceased had a polygamous family, the Estate is inherited among the families according to the number of children in each house and including any surviving spouse as an additional unit to the number of children. For instance, where a house has four children and one wife, then that house is considered as having five units and each house divides the Property or Estate according to the units.

The process of succession

To kick start the process of inheriting the estate of the deceased in intestacy, a beneficiary has to do the following:

Petition the court for grant of letters of administration. The importance of these letters of administration grants you the right to administer the estate of the deceased, any person who tries to administer the estate of the deceased without the grant of letters of administration is guilty of the offence of intermeddling and can there be imprisoned or fined. The administrator has a duty to safeguard the interests of the beneficiaries of the estate.

For one to apply for this grant of letters of administration one needs to have the following documents :

1.      A letter from the area chief listing all the beneficiaries of the property, their ages and their relationship to the deceased

2.      A certified copy of the death certificate of the deceased

3.      IDs of the persons petitioning the court.

4.      IDs of the beneficiaries.

The law allows between 2 to 4 people to apply to be administrators of the deceased in intestate succession. Once all the beneficiaries sign the court documents, the applicant shall proceed to file them in court and fees are assessed. 

Once filed in court and the requisite fees are paid, a Petition is published in the Kenya Gazette as notice to members of the public of an application for grant of letters of administration for a period of 30 days. The reason for publishing this application in the Kenya Gazette is to; firstly, notify the public of the person intending to administer the estate of the deceased and allow for any person who has any contention to object, secondly, it is a requirement by law and thirdly if any beneficiary is has been left out in the application, they may apply to the court to be included.

Once the gazettement period has lapsed and no objection filed, the court will issue the applicant said letters of administration for a period of 6 months to give the applicants time to recover the deceased’s assets, agree on the mode of distribution of the estate among the beneficiaries BUT the administrators do not have the power to distribute the estate at this stage. In default of any agreement on the mode of distribution of the estate by all the beneficiaries, the matter may be referred to the public trustee for necessary distribution of the estate in accordance with Section 40 of the Law of Succession Act and in any event, within a period of six(6) months.

To get the power to distribute the assets, the grant Letters of Administration have to be confirmed by the Court. Such confirmation is done once the 6 months lapse. The applicants can proceed to apply for a confirmation of the grant of letters of administration before one can proceed to distribute the deceased assets. The law requires the administrator to complete administration of the Estate within six (6) months of confirmation of the grant of Letters of Administration or such longer time as the Court may allow. They also have an obligation to produce to the Court a full and accurate inventory of the assets and liabilities of the Deceased as well as a full and accurate account of all the dealings therewith and the completed administration.

 

The process of divorce proceedings in Kenya

In Kenya, the process of dissolving a marriage follows specific legal procedures as outlined in the Marriage Act, 2014. While it can be complex and time-consuming, understanding the steps involved can help smooth the process.

1.      Filing the divorce petition.

The first step in initiating a divorce is the filing of a petition. Here the petitioner will prepare the divorce petition for the dissolution of the marriage and attach the divorce papers as discussed above.

If the petitioner is represented by an advocate, they will handle the preparation and submission of these documents to the Court. The advocate will also prepare a notice to appear, requiring the respondent (the other spouse) to indicate within 14 days, whether or not they contest the divorce.

2.      Response by the Respondent

Once served with the divorce petition, the Respondent has 14 days to file their response. They may then choose to either agree to the divorce or contest the grounds for divorce by filing a defense.

If the respondent does not respond within the required time, the court may proceed with the case based solely on the petitioner’s evidence.

3.      Issuance of Registrar’s Certificate

After the petition is filed and responses (if any) are submitted, the next step is for the petitioner’s lawyer to request the Court to issue a Registrar’s Certificate. This certificate indicates that the case is ready for a hearing and that the Court has reviewed the pleadings.

4.      The Hearing

The hearing typically occurs 14 days after the issuance of the Registrar’s Certificate. During the hearing, both parties are required to present their evidence and call their witnesses to support their cases. The petitioner must provide evidence showing that the marriage has irretrievably broken down, while the respondent may seek to refute these claims.

5.      Judgement and Decree Nissi

Once the hearing is complete, the court will set a judgment date, typically within 21 days. During judgment, the Court will decide whether sufficient grounds exist for the divorce. If the Court is satisfied, it will issue a Decree Nissi which is the first stage in the dissolution of the marriage. This decree signifies that the Court has granted the divorce but allows a 30-day window for either party to reconsider their decision or raise objections.

6.      Decree Absolute

If no objections are raised within 30 days, the petitioner may request the Court to issue a Decree Absolute, which finalizes the divorce and officially dissolve the marriage. The Decree Absolute is the final legal document that confirms the end of the marital relationship.

In conclusion, filing for divorce in Kenya requires family law expert guidance and adherence to set procedures to ensure a fair, efficient, and lawful dissolution of marriage.