Swala Nyeti: Layman and Lawyer Discuss Legal Questions
By Harry Karanja
Swala Nyeti: Layman and Lawyer Discuss Legal QuestionsSep 08, 2020
Is it possible to sue my baby daddy to pay for the lifestyle he accustomed me to?
I fell in love with this man. He was rich and into the finer things in life. He basically upgraded my life, bought me an Audi and moved me to uptown. Unfortunately, we broke up after 3 years. It was mutual and we've no bad blood. Now, it's time to renew my car insurance and the bill I was stuck with is more than what I make in a month in my business. Rent was paid by him per quarter but the time has come to pay, he’s ignored my calls. My issue is, this babygirling lifestyle was imposed on me, my social standing changed and I am now fully accustomed and don't want to sell my stuff and move back to my old lifestyle. Can I sue him to pay for my upkeep?
Research by Barasa Wanjala (barasa@swalanyeti.org)
Will I be liable for my house-help's abortion that's gone wrong?
My house-help procured an abortion in my house and kept it from me. Her bleeding got worse, but she refused to go to the hospital despite me insisting on it. On day three, I asked her to either go seek help or I will have to let her go because she is putting me in a difficult position since she is my responsibility when she is in my house. She went to the hospital, and all I kept telling her could go wrong has gone wrong and she needs specialized help because her health has really gotten worse and she is hanging on a balance since she did things in a shady way. Though I am really spread thin, I have paid for her health needs this far in as much as she refuses to let me know the truth. I would like to know what is the limit of my liability legally given that she refuses to let her family/partner know what’s happening.
Research by Barasa Wanjala (barasa@swalanyeti.org)
Can I get my salary arrears if I've been falsely accused of stealing clients?
I had been employed in a real estate company and recently got fired. This had become a thing in the last year of my working there, a lot of people got fired with no probable cause. Because of Covid, we had salary delays, and they owed me two months' salary plus commission. The week I was fired, I had just closed two accounts, which meant money owed. However, I received no letter of warning or notice. I have written to the company about what I’m owed, but I have received threats instead. The new HR has been on my case claiming that I have been stealing clients of the company in contravention of a non-compete clause. But that's not true. How can I get paid?
Research by Barasa Wanjala (barasa@swalanyeti.org)
Can I be punished for impregnating my high-school girlfriend?
In today’s episode, we discuss the options a teenager has when they are caught engaging in sexual relations.
My cousin is in distress! He’s a 15 year old boy in high school with a girlfriend in a neighbouring school and he thinks he impregnated her. His friend told him of a similar court case where another boy was found guilty of impregnating a teenage girl and sentenced to an approved school. Since he’s a child, can he be arrested and taken to court because of this? What if the pregnancy is not even his?
Research by Maurine Kerich (maurine@swalanyeti.org)
Can a teacher slap my child?
In today’s episode, we discuss the legal remedies a parent has against a teacher and school when their child is subjected to corporal punishment.
My child was slapped in school!
Since that day she has had hearing problems which started presenting itself 3 days later. She is having problems sleeping and cannot lay on the side of her head comfortably. The very day of the incident, she had a mark on her face; that’s how I got to find out what happened to her. I called her teacher and she said it was because she was not able to answer a basic question. I have taken my child to hospital and I am waiting on the medical report this morning. The school headteacher has declined to address the issue. So what I want to know is, can a teacher slap my child?
Research by Barasa Wanjala (barasa@swalanyeti.org
Can my side-chick force me to pay her for an unborn baby?
In today’s episode, we look at whether someone can be legally compelled to take parental responsibility for an unborn baby.
Recently a woman sued a politician asking for Kshs. 25 million in child support for her unborn baby.
From what I understand, the two eventually agreed to settle the matter out of court. However, I am a married man with the exact same problem and I need help. I've recently been blessed with some good money and ended up having an affair. The lady now says she's 2 months pregnant, but I'm waiting for the baby to be born to know if it is really mine. I told her she should also consider an abortion because I won't support a baby that's not mine. Anyway, she has now sued me and asking for millions, yet the baby has not even been born yet. Can the court force me to pay her?
Research by Maurine Kerich (maurine@swalanyeti.org)
Can you sue Kenya Power if someone dies from stepping on a live wire?
In today’s episode, we discuss whether the power company is liable for the wrongful death of someone who steps on a live wire.
A boda boda rider was recently electrocuted to death after stepping on a live wire in stagnant rainwater he was using to wash his motorbike. The incident happened at a spot boda boda operators are known to take their bikes for a wash in Siritanyi area in Kanduyi on the Malaba-Eldoret highway. The cable had been lying on the ground after a Kenya Power pole was knocked down by a vehicle the previous evening; the Nation has learnt. Residents and boda boda riders in the area protested along the busy highway over what they termed as negligence by the power company. Can the family of the deceased sue the power company for the wrongful death of their loved one?
Research by Maurine Kerich (maurine@swalanyeti.org)
Link to story: https://nairobinews.nation.co.ke/boda-boda-rider-electrocuted-in-bungoma/
Can I punish a lending app for listing me on CRB despite paying my loan?
In today’s episode, we tackle what steps or actions can be taken against a lending app that has possibly breached its agreement with a borrower.
There was this time I was so pressed for cash that I signed up in one of those loan apps. I put in some kidogo cash so that i can raise my loan limit. I couldn’t pay up by the assigned deadline. When I got money, I paid up. But since I paid, I started getting a lot of calls from the loan app company. Although I took 3 months to pay up the loan, I didn’t violate their guidelines. I have spent a lot of time on the phone explaining to them that I have cleared the debt, including writing emails to them with supportive documents, but it's not been helpful. This year I went to apply for a bank loan, and in their due diligence, they found out that I have been listed under CRB. I cannot get a loan now because of the carelessness of this company. I have paid the fine to get cleared from CRB in the hope to get the loan I need for my business. But this whole process has been a waste of my time. Is there a way to punish the lending app for wrongly listing me on CRB despite paying my loan?
Research by Joy Mutimba-Vetil (joy@swalanyeti.org)
Can I get a taser to prevent useless men from grabbing my butt in the matatu?
In today’s episode, we look at the legal requirements you need to satisfy to own a taser.
Hi Wakili. I am tired. I am tired because, unlike my brother, before I leave the house I have to think about so many things. I have to consider the place I am heading to, the people i will interact with, the means of transport I will use and even then I still get random butt grabs on the streets. I stay on a call even pretend to be on one so that a taxi driver is aware that I have people on the other line in case he gets any ideas. I have been researching and seen that in other countries women carry tasers and pepper spray. I think I need one so that I feel a little safer since I can’t walk around with a gun. What are the legal requirements I need to satisfy so that I can own a taser?
Research by Maurine Kerich (maurine@swalanyeti.org)
Can I still divorce him if he refused to accept divorce papers?
In today’s episode, we discuss the options a person has if their spouse refuses to accept divorce papers.
I married my husband at Sheria House in 2006. However, almost immediately after, he denied me conjugal rights and instead looked for it elsewhere. Eventually, we had a big fight and he moved out in 2008.
Two years later, I filed for divorce proceedings but my husband kept dodging the person trying to serve him. I tried to follow up but my advocate kept taking me round and round until I gave up. I left it and continued living my life. I have recently met someone and he proposed to marry me and I said yes. I haven't told him yet about my first husband and I want to see if I can get a quickie divorce.
I got someone to check my divorce file, and she told me that that the case had been called for reactivation in 2015. Does that mean I am now divorced?
Research by Maurine Kerich (maurine@hklaw.co.ke)
Can ‘Alejandro’ who stole my mum's money and heart in the high seas, be forced to refund it?
In today’s episode, we discuss whether a person has a cause of action against a lover who borrowed money from her, in the pretence of doing business and disappeared with it.
So there is this man who duped my mother and as we now know it, a few other vulnerable women of their retirement funds. He comes into their lives and takes advantage of their loneliness for the promise of love and talks them into starting a business with him. Once he gets the money he sticks around for a few weeks in the pretence of doing errands to meet the requirements to do the said business and then he sets off for travel in the name of outsourcing the resources and then he can’t be reached again. My mother gave him all of 780k for the business. Since his disappearance, my mom got worried and she has since filed a missing report and that is how she found out she is one of his many victims. All my mother wants is her money back. She was smart enough to have a written agreement, that basically says that in case the business doesn’t take off, she would get 80% of the money she invested back. All she wants is her money. Kindly advise her on how to move forward.
Research by Barasa Wanjala (barasa@swalanyeti.org)
Can I enforce the sales contract that I entered into while drinking with the buyer in a bar?
In today’s episode, we discuss what makes a valid contract between a buyer and the seller when both parties disagree on the sale of goods.
I’m a businessman and I trade in electronics. A friend placed an order and asked to pay in two instalments to be made two weeks apart when we were catching drinks at my favourite local. My friend, now client, had paid Kshs. 35,000 as the deposit. On the agreed date, I sent my brother with the TV to deliver and collect the balance. He has then ignored my calls from that day despite our prior communication, he didn’t respond till 9:30 pm. He said he was busy and that I have overpriced the TV compared to other vendors like Jumia. He has not been communicating on the way forward. He has since blocked me. I have all our communication, the address of his home, and proof of payment. I want my money since this was a business transaction and not a friendship. The TV cost Kshs. 70,000. How can I get my money?
Research by Barasa Wanjala (barasa@swalanyeti.org)
Can I sue my husband for failing to pay me for planning his second wedding?
In today's episode, we discuss the legality of suing your spouse while you are married.
I am a wedding, and events planner and I’m married. My husband decided to take a second wife, and I was the wedding vendor. That’s the short version.
I got married traditionally, and my husband decided to take another wife. He told me if I was to accept the second wife he’ll give me the job to plan the wedding and I’ll pocket 500,000Kshs which was my fees. I took the job as a favour to my husband and my pocket. My husband knows how good I am at what I do. I plan and manage weddings successfully.
When I took this job, I trusted that he would make good on his promise. My husband paid a deposit and asked to pay the rest in instalments since they were raising money through a wedding committee. I accepted, and I handled everything except for food and transport and I included cake in my package. Their bill for everything for their big day amounted to 847,600/- tax inclusive. They have paid me a total of 500k.
The bride has since had her wedding and by the morning of the wedding; she told me that the committee couldn’t raise enough money. She has pushed, but she is frustrated since she lost her job 3 months to the wedding and they have depleted their savings as a couple. I did this as a favour to my husband and he has been using his new wife to communicate to me. It's been 6 months since the wedding and no communication from their end. I have bills to pay since there is a new wife and I need my money since I delivered on the job. How can I pursue her legally? My letters to them are not being acknowledged, neither am I getting a response.
Research by Maurine Kerich (maurine@swalanyeti.org)
Can my husband sue his parents for failing to pay for the upkeep of our child?
In today’s episode, we discuss if grandparents are obliged to take up the responsibility of their grandchild when both of the child’s parents are unable.
Wakili, I got married in my early 20s and because we were not yet financially stable; we lived with his parents. The mother supported us as long as we were under her roof and during this honeymoon period; I got pregnant. This was my turning point since I got an awakening that was so unsatisfying with our living arrangements. I expressed it to my husband, and it became a thorn in our marriage. I gave birth and my Mother-in-Law footed the bill and was our major financier.
Our marital disputes increased. This was the main reason since I wanted us to have our own. I left, and I went back home. But before I left, we had a meeting with my mother-in-law and my husband. We agreed that she would bankroll everything for my son, but her only condition was that he stayed in her compound. After a few months, my husband got a job, and he moved out with our son since he wanted to be the primary caregiver other than his mother. His mother was not happy, and she cut off my son. I’m wondering can he sue his mother for child support?
Research by Barasa Wanjala (barasa@swalanyeti.org)
Can I get compensated for my wallpaper after the landlord kicked me out?
In today’s episode, we discuss whether you can get compensated after getting evicted over a disagreement with your landlord.
Hello, I signed a lease for this apartment, I was sold on the potential, let’s face it, house hunting in Nairobi is such a nightmare. I noticed a few things prior to moving in and I raised it with the landlord and they promised to fix it before I moved in. A month later they did the paint job was and cleaning. Among the things that I pointed out is the functioning of the toilet, the toilet doesn't flush, the shower doesn't work, so no hot water in June-July weather, the wiring was to be done since one can't turn on the bulb in some of the common areas. I have been patient and I have been here 6months and still, no work has been done. In those six months, I did some home improvements. I fixed the wallpaper and did the floor, just the polishing. Now in the last call, I made to her, she told me I was a difficult tenant and gave me until the end of the month to move out. Now, will I get compensated for the wallpaper and the flooring that I did?
Is the eviction legal?
Research by Maurine Kerich (maurine@swalanyeti.org)
Do I need witness protection if I snitch on my thieving colleagues?
In today’s episode, we discuss what protection is afforded to a Whistleblower under the Witness Protection Act.
I work for a huge multinational which has a branch in Kenya as an accountant. I just found out that a section of the staff is embezzling huge amounts of cash and sending them to offshore accounts. I would like to report this but I do not want to lose my job or be blacklisted in this industry. Furthermore, I don’t want to lose my life as these people are well connected, but I believe in justice and telling the truth always. Kindly advice on the procedures that would have as little repercussions to myself as possible.
Research by Joy Mutimba-Vetil (joy@swalanyeti.org)
Can I force my SACCO to Pay my Rebates even if I had defaulted on my Loan?
In today’s episode, we discuss whether one can force their SACCO to pay rebates after paying off a defaulted loan they owe the SACCO.
I borrowed some money from my SACCO 3 years ago which I was to pay in 60 instalments over 5 years. However, around 1 and a half years ago, I started facing challenges in my business because of the COVID-19 Pandemic that prevented me from making payments regularly. I, therefore, fell very behind on my payments but would make a payment now and then when I could.
Recently, the SACCO announced its the end-of-year results, and one of the things I was expecting was to receive a rebate, which I would have used to reduce my debt. However, I was shocked when the SACCO told me that they would not be paying my rebate. We went through the rules with the SACCO and there is nowhere it says if you’ve defaulted on your contributions that you are restricted from receiving Rebates. All it requires is that you’ve made at least 4 contributions of a certain amount in a year to qualify for rebates. When I showed this to the SACCO, they agreed I had met the requirements. However, they then claimed that they had not even charged me interest for my late payments and that if I insisted on the rebates they would load the interest on my debt for late payments. Right now, I decided to leave it because my business is still down and I might not be able to make regular payments and I don’t want to make them my enemies. But I want to know once I finally pay off my loan, can I force them to pay for those rebates which I believe are owed to me?
Research by Muendo Manthi (muendo@swalanyeti.org)
Can I get my neighbour arrested for employing my child?
In today’s episode, we discuss the labour laws in relation to the rights and protection of domestic workers.
Hi Wakili, my daughter who just recently turned 18 years old has quit school. She got a job as a housekeeper through my neighbours. This has made me mad because I really want her to get an education. I know she has turned 18, but the thing is if it wasn’t for Covid, she would be in school on schedule. I want to know whether I can go after the lady who employed her. Can I get her arrested? There is another issue, she was also getting underpaid; she was offered 5k per month with no leave days. My other problem with this is many people take advantage of young people and get away with wrongful employment, poor working conditions and underpaying them. Kindly advise.
Research by Muendo Manthi (muendo@swalanyeti.org)
Is it a crime to have a baby with my cousin?
In today’s episode, we delve into the topic of the privacy of a child and the matter of incest under Kenyan law.
Vlogger Kabi WaJesus has admitted he is the father of a seven-year-old girl following a DNA test that came back positive. In a statement released earlier, Kabi said he sired the minor in 2013 with his cousin and apologized for his January 2021 fight against the paternity claim. In an apology to his fans and family, Kabi said the DNA result was a "relief" and assured that he would take parental responsibility for his daughter. “With the paternity results out, it is a relief as we can now chat the way forward together with the mother for the welfare of our child. I am immediately reaching out to her so that we can discuss and agree on her future,” shared Kabi.
Furthermore, people on social media are clamouring for their arrest stating that as they are cousins, they have committed the offence of incest, which is a crime under Kenyan laws.
Research by Joy Mutimba-Vetil (joy@swalanyeti.org)
Can I be protected from harassment from digital lenders where I guaranteed someone?
In today’s episode, we discuss the rights and protection guarantors have from digital lenders.
Hello, my name is Robin. Recently a friend of mine called to tell me that he'd used my name as a referral on an application he made. I didn't think much about it until a couple of days ago when I got a phone call from a strange number which went like this:
Caller: "Hello, my name is David, I am calling you from Kashnow. Are you near Kevin?” Me: "Who is this?" David: “Kevin took a loan from Kashnow, and put you as his guarantor"
Me: "How did you get my number?"
David: “Kevin took a loan from Kashnow, and put you as his guarantor”, I hung up after that but I've seen similar numbers have tried to call me several more times since.
I also spoke to my friend who assured me that he'd only taken the loan three weeks ago and was only 1 day overdue by the time I received the call. He promised he'd pay within a week and speak to the digital lender to stop calling me. However, the calls haven't stopped, and I feel like it's harassment.
Can I be protected from harassment from digital lenders where I guaranteed someone?
Research by Maurine Kerich (maurine@swalanyeti.org)
Can I recover my loan after the person I lent to dies?
Today’s episode is from a previous discussion on loan recovery from a deceased person's estate.
I run a wholesale shop and supply several shops and supermarkets in my area. One of the supermarkets I supply was run by a man who I learnt recently passed away. Just before he died he had taken goods on credit worth one million shillings. I have tried to visit and speak with the family about this, but they do not seem keen to pay back.
Can I recover my loan after the person I lent to dies?
This episode was first published on September 13th, 2020
Can I sue a parastatal that fired me after being an intern for 12 months?
Today’s episode is from a previous discussion on employment termination of internship and casual employment.
My uncle helped me find a job as an intern in one of the parastatals a year ago. He told me that I would work for six months and then be promoted depending on my good work. But the HR only emailed me saying I was a casual on probation. She assigned me to work as an assistant to an officer. They would pay me per diem from time to time. Then after I came back from a short sick leave, HR told me they didn’t need casuals anymore and I was fired.
Can I sue the parastatal?
This episode was first aired on September 7th, 2020.
Can I marry, divorce, and keep half the property of my sugar mummy?
Today’s episode is from a previous discussion on whether a matrimonial property agreement is valid if it’s given verbally.
I’m a college student but have big dreams. Last year I met this rich mama on Facebook. We flirted for a while before starting an affair. She’s much older than me, but she’s loaded, so she takes good care of me. In fact, we were chatting on Facebook and she said we should get married, but only if I promised that if I left her, I wouldn’t get a dime. I said ok, but I’ve been thinking lately.
I want to marry her, but if I get tired of her, I’d like to divorce her and get half her property. Is this something I can do?
This episode was first aired on September 3rd, 2020.
Can I punish a former employee for poaching my clients and giving my business a bad image
Today’s episode is a rerun from a previously aired discussion, where an employer wanted to know how to deal with a former employee who was poaching his clients and employees.
I run a high-end garage in Nairobi where I have several mechanics and technicians and they earn based on their work. Despite the ups and downs of business and more so COVID, I have always treated them well. Recently, one of my mechanics left after his casual messed up a client’s car, who is now suing me for hundreds of thousands of shillings. T
o make things even worse, this mechanic opened a rival garage not very far away and is now poaching my best people and clients, claiming that I mess with people’s cars. I feel very aggrieved by his actions. How do I punish him?
This episode was previously aired on September 9th, 2020.
Recap - Can I divorce him if he is already married?
In today’s episode, we recap a previous discussion on whether you can divorce your spouse if you find out that they are already married.
Four years ago I met this very dashing gentleman. After dating for a while, he proposed marriage and we visited my parents at home for blessings. He made sure to meet all our traditions, and even paid bride price in a lovely traditional ceremony. He didn’t stop there, but went ahead to give me a beautiful white wedding where I was the envy of all my friends.
Now after living with him the past two years, I have discovered he had a dark secret. A woman confronted me on Facebook claiming that she is my husband’s legal wife for the past ten years. She says she was bedridden the past few years so had relocated to the village. My husband has confirmed it.
I am so disgusted I want to divorce him. Can I?
This episode was first aired on August 31st 2020.
Can a hospital bury a deceased without consent of the family?
In today's episode, we discuss the rights of a deceased person pertaining to their body, similar to the story where a hospital buried a deceased patient without the knowledge or consent of the kin.
The Kenyatta National Hospital recently admitted that they buried Sabezia Killong in an undisclosed mass grave without the knowledge or consent of her kin. The family had been searching for her for months and have even made several visits to the hospital which had denied having admitted anyone by that description.
The family sought assistance from the Directorate of Criminal investigations who traced her cellphone to the hospital. The hospital admitted that they had admitted the deceased on December 20th but under a different name and had treated her until December 28th when she had died under unclear circumstances.
The hospital claims it had made attempts to trace her next of kin during her treatment and care. The hospital claims that the body remained unclaimed at the mortuary for four months before it released for burial in a mass grave at Langata Cemetery.
Link to the story:
https://nation.africa/kenya/news/knh-admits-burying-woman-without-notifying-kin-3394928#
Research by Maurine Kerich (maurine@swalanyeti.org)
Can an employer win an appeal for unlawful termination on account of redundancy?
In today's episode, we discuss when a business can legally terminate an employee's contract on grounds of redundancy, similar to the recent case of 3 G4S employees.
On May 4, 2021, it was reported that 3 former employees of G4S had won an unfair termination case against the company. The employees had argued that their termination on grounds of redundancy was not procedural, was illegal and unlawful. They asked for 12 months compensation for unlawful termination among other payments.
The employer had testified that they had held meetings in which they discussed redundancy. They also gave notice to the labour office which was received as is required by the law and paid redundancy payment in full. The court found in favour of the employees and ruled that the redundancy was not procedural and awarded 10 months compensation damages for unfair redundancy, unlawful termination, the salary of failure to give notice and cost of the petition.
Link to the story:
Research by Maurine Kerich (maurine@swalanyeti.org)
Do I have to pay VAT, Withholding Tax, PAYE, Instalment Tax, Digital Services Tax and Minimum Tax as a Small Business Owner?
In today’s episode, we discuss the different taxes specifically which ones a small business owner can be required to pay within a business year.
Hello. My name is Edith, and I am seeking your advice on a very sensitive issue. I started a consultancy service early this year to install CCTV cameras in cars, homes and offices. The business has been picking up well, and I've made a revenue of about one million in this first quarter. I have 4 employees who help me do the installation whenever I get a job. I usually pay them 3000 per job.
In addition to consultancy, I also sell various equipment and cameras on my website which gives me about 25% of my revenue. My challenge today is that I am so confused about what taxes I am supposed to pay. I've been told by some people about VAT, withholding tax for consultants, PAYE, instalment tax, digital tax and minimum tax. Could you please help me out as I don't want to be arrested because of taxes?
Research by Joy Mutimba-Vetil (joy@swalanyeti.org)
Can I sue if a potential employer withdraws their offer after I've already quit my former job?
In today’s episode, we discuss whether someone can get compensation from a potential employer who gives away the job offer they promised to someone else.
I need advice. I went for an interview in a different town, and I was verbally offered a job. They wanted me to report in 2 weeks' time. I explained that I needed at least one month's notice to resign from my current job and move.
I wrote them an email requesting if I could report after one month, and they agreed to email. 4 weeks later I texted HR to let him know I would be reporting as agreed the next Monday. The HR responded that they had already given the position to someone else and that they'd sent me an email about it. I checked and sure enough; I found they had sent an email 3 weeks ago, but it had gone to spam so I never saw or acknowledged it.
I feel wronged seeing that I resigned and moved to a new town for the job. Can I sue for compensation?
Research by Muendo Manthi (muendo@swalanyeti.org)
Can I be taken to court while critically ill?
In today’s episode, we discuss whether someone’s rights are violated if they are taken to court while critically ill.
FN’s niece has accused him of fraud, amounting to KShs.1.7Million. Another person has also complained that FN defrauded him KShs. 45,000/. Last week FN was shot in the back by police officers as he attempted to flee from them because they wanted to arrest him.
Immediately after his arrest, he was taken to Kisii Referral and Teaching Hospital for emergency treatment. A day later, the police took him forcefully from the hospital using a stretcher and presented him to court to take a plea. Fortunately, the magistrate did not allow him to take a plea and ordered he undergoes further medical care?
He feels his rights have been violated and wants to know if this is allowed by the law and if it is not allowed, what can he do against the police and the hospital?
Barasa Wanjala (barasa@swalanyeti.org)
Links to the story: https://www.the-star.co.ke/counties/nyanza/2021-04-26-man-taken-to-court-in-stretcher-over-serial-fraud/
Is it affordable to sue someone if he only owes me 100,000?
In today’s episode, we discuss the procedures that determine whether your case qualifies to be heard in the Small Claims Court.
Hi, my name is Rose. A couple of years ago, I entered into an agreement with someone to build a website for my new business.
The developer invoiced me for KES.100,000 to do the work, asking that it be paid upfront. Immediately after making payment, the games began. I could not reach the developer, and there was no website.
After a frustrating few months of trying to follow up the developer, I decided to get a lawyer to send a demand note. Unsurprisingly, the developer never responded to the demand letter. My lawyer suggested we file a small claims suit against him for recovery of the money, and we did that around May last year.
However, because of the pandemic, and the shift to a new e-filing system, the case file got lost and it only reappeared recently. The developer has filed a defence but we are yet to get a date. However, someone told me recently that there is a new court handling claims like mine, and I wanted to know, how do I proceed with my case to get justice in the fastest possible way.
Research by Maurine Kerich (maurine@swalanyeti.org)
Can I use my ex-Boyfriend's Song in my Podcast?
In today’s episode, we discuss the copyright issues of a Podcaster whose ex-boyfriend has threatened to sue her for using his song in her podcast without his consent.
Hi there, I used to date this singer. He was ok but had not yet found success when we were dating. At that time, I had started a podcast and I used one of his recorded songs in the intro of the podcast. The intro is not very long but samples the most catchy part of the song. We never really did any contracts or anything like that since we were a couple.
A few months later, after we had broken up, his song became popular and was playing almost non-stop on radio stations. At the very same time, my podcast also got popular. In fact, I secured a grant from an international organization worth millions to produce the podcast.
The problem is, he is now claiming that my podcast got this grant because of his song and he is threatening to sue me for millions if I do not give him a share of the money. Is this for real, aren't I allowed to use the song?
Research by Barasa Wanjala (barasa@swalanyeti.org)
What is the legality of owning a firearm?
In today’s episode, we discuss the legalities of owning a firearm following the recent story of Juma Mohamed Motha who was accused of failing to secure the pistol contrary to the Firearms Act at his home in Lavington on March 4, 2020 along with other charges.
A city resident has been charged with failure to secure a firearm after police officers who accompanied auctioneers on a recovery mission found a pistol in his home. Juma Mohamed Motha was accused of negligently and without reasonable cause, failing to secure the pistol contrary to the Firearms Act at his home in Lavington on March 4, 2020. Motha was also charged with unlawful possession of a firearm because police allegedly found an air gun inside his house, which he did not have a license to hold.
During an investigation, police wrote to the Firearms Licensing Board to authenticate the firearm licensing certificate for the firearms he held, and it was found to be genuine. However, he only had a license for the pistol, but he reportedly told the police officers that he had inherited the air gun from his late grandfather. He was also charged with being in possession of a firearm imitation after he was found with a plastic AK47 rifle.
The guns were allegedly found in some of the drawers in his house as auctioneers executed a court order in relation to a debt of slightly over Sh1 million he owed a businessman. Motha denied all the charges to the law courts. He was freed on a Sh100,000 bond with a surety of a similar amount and an alternative cash bail of Sh100,000.
The case will be mentioned later this month when the court will set the hearing dates.
Research by Joy Mutimba-Vetil (joy@swalanyeti.org)
Link to the story: https://nairobinews.nation.co.ke/general/city-man-charged-with-failure-to-secure-pistol-in-his-house
Can your Relatives use a Letter to Prevent you from Working in Government?
In today’s episode, we discuss whether your relatives can use a letter to prevent you from working in government, similar to the recent story of Philip Murgor, an advocate, who was vying for the position of Chief Justice. We are joined by Guest Advocate and Legal Researcher at Swala Nyeti, Joy Mutimba-Vetil who specialises in Commercial Conveyancing and Corporate Law.
A letter is doing rounds on social media written by Philip Murgor’s family to the Judicial Service Commission expressing his unsuitability as the next Chief Justice.
The letter accuses him of pitting family members against each other by representing one side against the other in succession disputes; as well as being verbally abusive to his wife.
Can your relatives use a letter to prevent you from working in government?
Research by Joy Mutimba-Vetil (joy@hklaw.co.ke)
Links to the story:
https://www.kenyans.co.ke/news/64249-why-lawyer-murgors-cousins-dont-want-him-be-chief-justice
Can one be arrested for circulating memes against the government online?
In today’s episode, we discuss the issues of freedom of expression, false publication and bail similar to those in the recent story of activist Edwin Kiama who was arrested after being accused of publishing false information about the President on social media.
An activist Edwin Kiama was arrested after circulating several posters on social media cautioning the International Monetary Fund against issuing any further loans to Kenya and specifically the President and Deputy President.
He was arrested by seven police officers, detained overnight and released without charge nearly twenty hours later. He was later charged with publishing false information about the President and committing offences under the Computer misuse and Cyber-crimes Act.
When he was presented before court, he was released on a Kshs. 500,000 cash bail and ordered not to share any images or messages on Kenya’s foreign loans pending the hearing of the case.
Research by Maurine Kerich (maurine@hklaw.co.ke)
Link to the story: https://www.the-star.co.ke/news/2021-04-07-anti-imf-loan-activist-mutemi-kiama-locked-up/
Can my employer deduct my leave days if I leave work an hour earlier?
In today’s episode, we discuss if an employer can deduct time from an employee's leave days to make up the time she leaves work an hour earlier.
I have been employed at the same place since 2014. I started out as a receptionist but was later promoted to an administrator. My contract has a provision for pro-rata leave of 1.75 days for each completed month of service. My working hours are normally 8:30am to 5:30pm. This has worked fine for the most part until recently.
If I leave the office at 5:30pm I arrive at my residence at 9 pm, which would be outside of curfew hours. Because of this, I requested my employer to allow me to leave at 4:30PM so as to arrive in my house within curfew hours of 8pm. I was asked to put this in an email, which I did and sent to the HR. However instead of responding to my email, the HR called me and told me that if I leave at 4:30PM, they will deduct the one hour from my leave days.
Can they really do this, and what are my options?
Research by Muendo Manthi (muendo@hklaw.co.ke)
Can I get a Refund if a Designer used the Wrong Color for the Items Produced?
In today’s episode, we discuss whether a buyer can get a refund from a service provider who fails to deliver on the correct product items as agreed.
I paid for some cups (I needed 50 pcs black ones with orange colour on the inside) for design at a shop in town. When I was buying, they told me they had only 10 in that shop and the rest will be gotten from another branch. So I paid with the understanding that the rest are there.
Thereafter they called to tell me that the cups were finished apart from the 10 pcs. I was in contact with a lady on the phone and the designer because I had to share the design with him. After sharing the design, I categorically said to him, he should not proceed with the whole job until I see the first mug.
They had mentioned the cups available were blue and wanted me to ask the client if he can take the blue ones but the client refused. I then instructed them to proceed with the 10 PCs available when the others are available so we can finish the job.
They decided on their own to do all cups in blue instead of the 10 agreed now they want me to share part of the cost. I have the conversations on Whatsapp about the designer not proceeding with the job before letting me know.
The amount in question is 11,000/ though it is small I don't think I can just let my money go since they are refusing to refund. Is there a way I can threaten them with legal action and they refund?
Research by Joy Mutimba-Vetil (joy@hklaw.co.ke)
Can I sue the ex-wife of a Director of a Company that owes me Money?
In today’s episode, we look at whether a business owner can sue the ex-wife of a Director of a Company that owes their business money?
My name is Kyalo. I run an office cleaning business, but over the past few years it has become very difficult to keep it afloat. One of the reasons is that some of my clients took up my services for long periods of time but have refused to pay and now owe millions in arrears.
One particular company has really been giving me a headache. It is a college based in town which owes me almost 700,000 for work already done, due for two years now.
When I first started working with the company, it was a husband and wife team. However, I have come to understand that over the past year the man divorced his wife. Apparently, as part of their divorce settlement, the husband gave the wife a huge chunk of money from the accounts of the college.
Now the ex-wife is no longer a director of the company but the remaining director, the husband tells me that the company is broke and can’t pay me. I believe that the money she received was rightfully owed to me as a creditor.
I need to get paid my money. Can I sue the ex-wife?
Research by Joy Mutimba-Vetil (joy@hklaw.co.ke)
Can you force a newspaper to retract a defamatory story and publish an apology?
In today’s episode, we discuss if you can force a newspaper to retract a defamatory story and publish an apology. Similar to the current case of Dinlas Pharma EPZ, which demands Nation Media to retract a story the newspaper published about it earlier this month and issue an apology.
Dinlas Pharma EPZ Limited is a company that was authorised by the Pharmaceutical and Poisons Board to import the Sputnik Vaccine that was manufactured in Russia. The authorization granted was Emergency Use, and the news was met with controversy since the Ministry of Health, through Dr Collins Tabu and Dr Willis Akhwale, denied knowledge of the authorization granted.
The issue became even more complicated once it was noted that KRA had been paid importation tax by Dinlas and that private hospitals had begun advertising the fact that they were disbursing the said vaccine. On the 7th of April 2021, the Star reported that Dinlas had instructed its advocates to write a demand letter to Nation Media concerning a story published on the 2nd of April that they allege adversely links the company to corruption in the health sector. The advocates for Dinlas allege that the “publication was intended and calculated to damage the reputation of our client to the advantage of other companies or business known to yourselves.” The letter demands that Nation Media retracts the story and publishes an apology within two days. Nation Media seeks to understand its options.
Can you force a newspaper to retract a defamatory story and publish an apology?
Links to the story:
Can you Trespass on Land if you Hold a Title Deed but Someone Else Claims It?
In today’s episode, we discuss what legal options one has in a case where you are accused of trespassing on your own land. This is similar to the recent case of GA Insurance Ltd vs Diku Transporters.
GA insurance Limited claims it purchased a piece of land for Kshs. 92 million originally owned by Sadru Ramjis from Economic Industries. Dikus Transporters claim that they purchased the suit property from Stephen Ndenda in 2020 who had purchased it from the original owners the Sadru Ramjis.
Diku Transporters has a title deed and GA insurance Ltd has a search on the property from the Ministry of Lands, indicating them as the registered land owners.
GA Insurance has accused Dikus Transporters Ltd and Lawyer Stephen Ndenda of using fraudulent titles to lay claim to the suit property currently valued at Kshs. 400 million.
In March, GA Insurance visited the site and found Dikus Transporters director with a group of men who had begun excavating the land preparing it for development. The group allegedly attacked workers of GA Insurance and destroyed building materials valued at Kshs. 675,000. Dikus Transporters also allegedly conspired with City Hall officials to suspend the land rates payment account of GA Insurance.
GA Insurance holds that Dikus Transporters intends to sell the suit property to unsuspecting buyers and has been visiting the suit property with prospective buyers and has moved to court seeking orders to bar Dikus Transporters and Mr. Ndenda from laying claim to the land.
Can one be a trespasser on land if they hold a Title Deed?
Links to the story:
Child Custody and Maintenance Questions answered by Guest Lawyer Wangui Waihura
In today’s episode, we discuss questions related to children's custody, rights, interests and adoption and they will be answered by Wangui Waihura a Lawyer in Family Law.
Question 1
When we separated from my abusive husband, he never sent me a shilling for our baby. But now that I’m remarrying four years later, he wants joint custody. Can I stop him?
Question 2
My late sister’s husband is a drunk and an addict. Can I rescue my two-year-old nephew from him?
Question 3
My ex-wife, whom I am separated from, is demanding that we share the expenses of raising my son 50 / 50 including the cost of the internet and the household. Is this the law?
Question 4
I want to adopt my sister’s 10-year-old daughter whom I have been living with since her mother took off to live with another man one year ago. What is the process?
Question 5
I earn 10 times more than the mother of my child who is jobless. If we separate, can I stay with the children?
Can you be fired over Social Media?
In today's episode, we look at the rights of both the employee and employer in regards to dismissal over social media which is similar to the recent story of Shaffie Weru, Neville and DJ Joe Mfalme, popular radio presenters at Homeboyz Radio, who were terminated by their employer over social media.
Shaffie Weru, Neville and DJ Joe Mfalme, popular radio presenters at Homeboyz Radio, were suspended then fired after making derogatory comments about a woman who was thrown off a building by her date after refusing his advances. As a consequence, there was an uproar on social media and the sponsors of advertisements aired on their radio show also withdrew their sponsorship.
Their employer, Radio Africa, first suspended their services on the 26th of March 2021 and then terminated their employment on the next day. The employees claim that they heard about their termination through social media and that they were not given a chance to be heard.
The letter making rounds on social media claimed that they were fired due to gross misconduct for making inappropriate and insensitive comments on air. Shaffie Weru felt aggrieved and decided to sue Radio Africa for unlawful and unfair termination and violation of constitutional rights as he learnt of his termination on social media. According to the demand letter, he is asking for one month’s salary in lieu of notice totalling to Kes. 682,500, 12 month's salary for unfair termination, a gratuity amount of Kes. 12,285,000 and a certificate of service.
Can you be fired over Social Media?
Tax and Finance Questions answered by Guest Lawyer Anna Kandu
Today we discuss questions related to tax and finance questions, which will be answered by Anna Kandu, a Lawyer in Corporate Commercial Transactions, Tax, Banking and Finance
Question 1
KRA has frozen my bank account because I had not filed tax returns for four years when I was studying outside the country, and now I have massive penalties. How do I unfreeze the accounts?
Question 2
I guaranteed my husband a loan before we divorced. How do I get out of that situation?
Question 3
I run a restaurant and butchery under one company, and I’ve gotten an offer from someone who wants to buy the restaurant. How do I proceed legally?
Question 4
I received an email from KRA saying, “Records held by the commissioner of domestic taxes indicate that your rental income tax declarations have been decreasing at an alarming rate. You are, therefore, advised to review the decline by amending your returns and paying up all resultant taxes before close of business today. Failure will result in enforced recovery.” What does this mean?
Can a landlord charge me back rent if they'd already agreed to reduce it?
In today’s episode, we discuss whether a landlord can charge their tenant back rent if they'd already agreed to reduce it? Especially when there is no written tenant agreement.
I have been renting a property in Kahawa West for the past nine years. When I moved in we agreed that I would be give a one month deposit and be paying 25,000 a month. We also verbally agreed that I would take care of the water and electricity bills. I cannot remember if we signed any document but even if we did, it was to terminate after one or two
years.
For the most part up to last year, my relationship with the landlord has been cordial. Sometimes, I have not paid the rent on time, but I also recover and pay any arrears. I had also ensured that I made mini house repairs where needed and paid for the utility bills.
However, since the COVID pandemic, I have not been able to pay rent on time or in full. I spoke to the landlord to consider waiving the rent payments for sometime. He did not agree but gave me three months to gather myself before I started paying again. However, even after I resumed payment, I have only managed to pay between 10,000 to 15,000 a month and have not managed to pay the full amount. However, the landlord seemed to accept the payments and never demanded the balance. I have also fallen behind on utility
bills, even though when I get money I pay a bit.
Last week, however, I received a call from a house agent sent by the landlord. She told me that she wanted to come and inspect the house. I agreed for her to come but I am now worried.
What does it mean that a house agent wants to inspect the house and can the landlord just kick me out. I need to find a way of remaining in the house, but I also don’t want to be forced to pay arrears from last year.
Research by Muendo Manthi (muendo@hklaw.co.ke)
Is there any way I can Punish a Company that Keeps sending me Bulk SMS?
In today's episode, we discuss if there is a way to punish a company that keeps sending unwanted Bulk SMS. What can someone do, within the law, to stop spammers.
I have been suffering the past six months from a flood of promotional messages on my Safaricom line from what I think is a vernacular radio station. I have never signed up for these messages and do not listen to that station. I have no idea where they got my number from. Most of the messages ask me to join one promotion or the other and send money via paybill. Every time I get such a message, I block it as spam and sometimes use *456# to try to prevent more messages.
However, not all the messages give a way in how to stop the messages, so sometimes I just rely on my Truecaller app to block the messages.
However, despite doing this, I keep getting messages. It seems they just change the shortcode and continue sending messages. I have asked Safaricom for help to identify the person or company sending the messages, but they have been uncooperative and instead told me I have to pay for that information.
I now wish to exact maximum punishment to whoever is facilitating this spam. What can I do?
Research by Barasa Wanjala (barasa@hklaw.co.ke)
Are the police allowed to follow up on a civil debt?
In today's episode, we discuss whether the police is allowed to follow up on a civil debt. What does the law say in this situation?
I am a property developer based in Eldoret. A few years ago, I got some people who wanted me to develop a property for them. The agreement was that they pay half of the money and the balance in instalments as I progressed in the construction. They paid 50% of the purchase price, and I began the construction. However, I spent more money than I had anticipated, and was struggling to achieve the next milestone to receive the instalment. I asked if they could pay in advance, but they refused, saying that I needed to first finish what I had promised. I, therefore, got into delays of almost one year looking for money to finish the project to the next milestone.
Eventually, I found someone willing to lend me the balance if I could give them the title deed of the property as security. Since I knew I would get money immediately, I met the milestone I agreed to the Shylock’s terms. However, when I completed the milestone, the clients refused to pay the balance saying I had taken too long, and they were no longer interested in the project. They asked me to refund their money, but I refused, saying they were the ones who owed me. At the same time, the Shylock was demanding his money, and I started avoiding him. I am worried however that he might have transferred the title deed to his name since he is very well connected at the lands office.
Over the past few weeks, the clients have been really threatening me and yesterday they got the DCI to summon me about the case. The DCI said that they would call me every day until I repaid the money.
What can I do to stop the police from calling me incessantly? I also don’t want to be forced to pay them back since they also did not meet their end of the bargain.
Research by Joy Mutimba-Vétil (joy@hklaw.co.ke)
Can a Landlord Sue me for Rent after He Locked me Out and Sold my Things
In today's episode, we discuss the question of whether a landlord can sue his ex-tenant after locking them out of the property and selling the tenants things. We also look at what rights the tenant has regarding the law.
I am a business owner that has been sued by my former landlord of my shop. When I moved into the property six years ago, we signed a lease agreement that was to last for three years or until either of us gave a two-month termination notice. However, business became tough since 2018 and I started falling behind in rental payments. In 2019 we agreed that I would do some work for the landlord for and I completed the work and invoiced them. The landlord, however, never paid but kept demanding rental arrears. Eventually in 2020 when COVID pandemic started, I could not continue paying rent for the property.
In mid-April, I wrote a notice telling them I was terminating the lease from 1st of April 2020 and moved out some of my things. I asked them to meet me at the end of the month to do the handover. The landlord however wrote back and refused to accept my notice. Instead, he wrote to the property manager and instructed them not to allow me to remove any items from the office. In fact, I visited the office a few weeks later to remove a few things I needed for a business presentation, and the security completely refused to let me remove them.
On August 25, the landlord through the lawyer told me that we meet at the office to do a handover but since they refused to let me leave with my things, I declined. I, however, came to learn that on August 14, the landlord had already instructed auctioneers to sell my things which the auctioneers claim they did by public auction on October 3 although I never got any notice or indication. They also sold the items for a very low value compared to their actual value. The landlord is now suing me for the unpaid rent arrears plus 7% interest per month, which is based on a term in the expired lease agreement that said they could charge this interest. However, this interest has never been demanded in the past. The total amount is coming to 350k, although the actual arrears were about 150k.
However, the landlord owes me 100k for the work I did for them, which has never been paid. In addition, I need to be compensated for all the things the auctioneer sold because they refused me to remove them.
I don’t believe I owe any money, in fact, I feel I am owed because I lost so much business when I couldn’t get my things. What can I do?
Research by Barasa Wanjala (barasa@hklaw.co.ke)
As a girlfriend, can I inherit from my lover, who was married and has now died?
In today’s episode, we discuss whether a person can inherit from a lover who was married and has now died. Especially if the case where the will is being challenged by the wife?
My name is Shiro. My boyfriend of six years has died. We lived together for those six years, though he was married but had separated from his wife and three children. In his will, which was signed before two witnesses, he left me some property in Zimmer. The property in Zimmermann is solely in his name. The lawyer who signed the will said my boyfriend was thinking very clearly, and he had told me and my friends many times before that he would give me the property. Now, the wife is challenging the will saying the property is matrimonial property. Although she did not contribute to buying it, she helped him find a tenant. She also claims that her husband was too sick to write the will and the signature on the will is fake.
My question is, do I have a chance of success to get the Zimmerman property?
Research by Maurine Kerich (maurine@hklaw.co.ke)
What are your rights if abducted?
In today’s episode, we discuss the constitutional rights of a person who is abducted, similar to the recent allegations of controversial blogger Edgar Obare who was taken by unknown people when he was about to attend a court hearing.
Links to the story:
https://www.ghettoradio.co.ke/they-stripped-me-naked-edgar-obare-narrates-kidnapping-ordeal/
Was quack doctor Mugo wa Wairimu's three year sentence enough?
In today’s episode, we discuss whether the sentencing of three years for fake doctor, Mugo Wa Wairimu, who operated a clinic in Nairobi without a licence is enough.
Links to the story
Nation: https://nation.africa/kenya/news/fake-doctor-mugo-wa-wairimu-gets-11-and-a-half-years--2724510
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