Author Archives: AcelitigatorAdmin

The ongoing rains and resulting floods persist, causing loss and widespread panic fueled by uncertainty about when and where the storm waters will strike. Concerns about building safety and the impending school reopening heighten anxiety. While county governments undertake some rescue efforts, they are widely seen as inadequate. Criticism mounts over the failure to take proactive measures despite early rain warnings. The lack of substantive communication from government has left many Kenyans wondering about the roles and responsibilities of both levels of government in disaster management.

Disaster management in Kenya is a shared responsibility between the National government and the devolved county governments. According to the 2010 Constitution of Kenya, disaster management functions and responsibilities constitute concurrent functions under Article 186(2) meaning both levels of government have defined roles and responsibilities in this area.

The Fourth Schedule of the Constitution delineates the division of responsibilities between the national and county governments. Part 1, Section 24, designates disaster management functions to the national government, while Part 2, Section 12, allocates related duties to county governments. Furthermore, Legal Notice No. 16 of February 1, 2013, transferred firefighting services and disaster management functions to county governments.

The national government oversees overarching disaster management policies, provides support for large-scale disasters, and co-ordinates national-level responses. County governments, on the other hand, are responsible for implementing disaster management activities at the local level, including preparedness, response, and recovery efforts within their respective jurisdictions.

As a concurrent function, Kenya’s disaster response system operates on the Principle of Subsidiarity. County governments take the lead in managing disasters at levels 1 or 2, while national involvement increases for levels 3 or 4. County Governors oversee local responses, while Presidential engagement is reserved for national emergencies.

Disasters are categorized into different levels, each with its own response framework. At Level 1, disasters are managed locally by the County Governor, with routine services. Level 2 situations may strain local resources but remain manageable within the county’s capacity, still overseen by the County Governor. However, Level 3 disasters require the mobilization of national resources, prompting Presidential involvement. In cases of Level 4 disasters that overwhelm national capacity, Presidential engagement is necessary for regional or international assistance.

Ever considered why lawyers frown at individuals posing as legal professionals? While encroachment on their livelihood is a factor, let’s forget the lawyers for a moment and look at it from the perspective of consumers of legal services.

Did you know that when you enlist a qualified lawyer, there is recourse for you if things go awry in your lawyer-client relationship?

Let’s pause a little here.

In the client-advocate relationship, while we hope for the best, unforeseen circumstances can arise. Implementing proactive safeguards is essential to address potential complications effectively. Comprehensive risk management strategies benefit both clients and advocates, fostering trust, reliability, and accountability within the legal profession.

Now that we are aligned, let’s explore the multitude of compelling reasons to make you steer clear of hiring unqualified individuals as lawyers in Kenya:

In discussions regarding unqualified individuals posing as lawyers, you must have come across the argument that non-lawyers at times excel in legal matters. These claims unfortunately lack solid data. While unqualified individuals may possess basic legal understanding, they often lack the essential education, training, and expertise required to handle legal matters proficiently. This deficiency can lead to mistakes, omissions, or insufficient representation, putting the outcome of your case at risk.

Unqualified persons are not bound by any ethical codes, they are not officer of the court and thus may not adhere to the ethical standards and professional conduct expected of licensed lawyers. They may engage in unethical practices, such as providing misleading advice, mishandling client funds, or breaching client confidentiality. An unresolved question in this discussion is what recourse is available if an unqualified individual discloses information provided by seekers of legal services.

Entrusting your legal affairs to an unqualified lawyer exposes you to various legal risks. They may give incorrect legal advice, draft flawed legal documents, or fail to protect your interests adequately, leading to potential legal disputes or financial losses. Consider a scenario where a document is drafted without a proper dispute resolution clause, potentially leading to inappropriate, lengthy, and costly dispute resolution processes.

In Kenya, lawyers are disciplined through regulatory bodies, professional associations, and legal procedures to uphold ethical standards and protect the public interest, such as the Advocates Complaints Commission, the Disciplinary Tribunal, and the courts. However, unqualified individuals lack similar oversight, except through court proceedings, potentially leaving dissatisfied clients with limited recourse.

But for qualified lawyers it doesn’t end at disbarment of suspension. Lawyers are mandated to have professional indemnity insurance, which steps in to compensate an aggrieved client. Unlike licensed lawyers, they may not be covered by professional indemnity insurance, making it challenging to recover damages for any harm caused.

Engaging unqualified lawyers undermines the integrity and credibility of the legal profession and the justice system as a whole. It contributes to a lack of trust in legal services and may erode public confidence in the administration of justice.

In some cases, seeking legal assistance from an unqualified individual may constitute unauthorized practice of law, which is illegal and punishable by law. Both clients and unqualified practitioners could

face legal consequences for participating in such activities.

Overall, engaging unqualified lawyers poses significant risks and is not advisable. It is essential to prioritize the expertise, credentials, and professionalism of licensed lawyers to ensure the best possible legal representation and protect your interests effectively.

Written by Stella Amisi Orengo

Mjadala unaondelea Kenya kuhusu kesi za uhalifu za watu maarufu umefunua kiasi kidogo tunachojua kuhusu jinsi kesi za uhalifu zinavyosikizwa. Hakuna wakati bora kama sasa kwa umma kujifunza mchakato wa kushtaki mtu kwa uhalifu.

Maarifa haya ni muhimu kwani yanaweza kusaidia walalamikaji, washukiwa, na wale waliohusika nao kuepuka vitendo vinavyoweza kusababisha kushindwa kwa haki.

Hatua za kushtaki mtu kwa uhalifu kawaida hufuata hatua muhimu hizi nchini Kenya:

kuwasilisha malalamishi

Hatua hii ya awali hufanyika katika kituo cha polisi, ambapo mlalamikaji anawasilisha malalamiko, yanayosajiliwa kwa usahihi katika kitabu cha tukio. Mlalamikaji kisha hupokea nambari ya kumbukumbu ambayo ni muhimu kwa ajili ya ufuatiliaji wakati wa uchunguzi.

Uchunguzi:

Polisi au mamlaka husika ya utekelezaji wa sheria inafanya uchunguzi wa uhalifu uliodaiwa. Hii inajumuisha kukusanya ushahidi, kufanya mahojiano na mashahidi, na kukusanya habari muhimu. Kwa kuongezea, taarifa kutoka kwa mlalamikaji na mashahidi wao husika zinaweza kudhibitishwa, hatua ambayo itasababisha kuandikwa kwa mashtaka.

Kukamatwa:

Kama uchunguzi unatoa ushahidi wa kutosha, mtuhumiwa anaweza kukamatwa. Kukamatwa lazima kufanyike kwa kufuata taratibu za kisheria, na haki za mtuhumiwa zinapaswa kuheshimiwa.

Dhamana:Baada ya kukamatwa, mtuhumiwa anaweza kuachiliwa kwa dhamana kutegemea ukali wa kosa. Kwa makosa madogo, mtuhumiwa anaweza kutolewa tiketi na maelekezo ya kufika mahakamani.

Kushtakiwa:

Baada ya kukamatwa, mtuhumiwa anashtakiwa rasmi na kosa lililodaiwa. Hii inajumuisha kurekodi maelezo ya kosa, sheria iliyokiukwa, na pande zinazohusika kwenye karatasi ya mashtaka. Kesi kisha hupelekwa kwa mwendesha mashtaka wa serikali kwa tathmini ya ushahidi wa kutosha.

Kufikishwa Mahakamani na Kutolewa Kauli ya Mashtaka

Washukiwa wanaletwa mbele ya Mahakama na kusomewa mashtaka. Wanatakiwa kujibu mashtaka hayo kwa kukiri au kuto kukiri. Kukiri kunapelekea kuhukumiwa mara moja ikiwa kesi ni kali au kuachiwa huru kwa makosa yasiyo na uzito. Kutokukiri kutaendeleza kesi hiyo kusikizwa mahakamani.

Kusikilizwa kwa Dhamana

Baada ya kusomewa mashtaka, washukiwa wanaweza kuombewa dhamana ili waachiliwe wakiwa nje ya jela hadi kesi yao itakaposikilizwa. Mambo kama hatari ya kukimbia na ukali wa kosa huzingatiwa katika kusikiliza hii. Ushahidi kutoka pande zote mbili, upande wa mashtaka na utetezi, hutolewa kwa kuzingatiwa na mahakama. Kukubaliwa kwa dhamana kunahusisha malipo ya fedha hadi kufika kwa kesi za baadaye; kukataliwa kunapelekea kuzuiliwa, na kesi kutajwa kila baada ya wiki mbili.

Kesi Mahakamani:

Kesi hufunguliwa, ambapo upande wa mashtaka na utetezi huleta ushahidi wao mbele ya afisa wa mahakama. Upande wa mashtaka huanza na taarifa za kuanza kesi, kufuatiwa na kutoa sheria, ushahidi, na mashahidi. Upande wa utetezi huchukua nafasi yake kwa kutoa ushahidi wao, ushahidi wa sheria husika, mashahidi, na ushahidi mwingine. Kila upande una nafasi ya kuhoji mashahidi wa upande mwingine. Baada ya hapo, pande zote mbili hutoa kauli za mwisho kabla ya jaji kufanya uamuzi.

Hukumu:

Baada ya kusikiliza ushahidi wote na hoja, jaji hutangaza uamuzi wa hatia au kutokuwa na hatia. Ikiwa mshitakiwa amepatikana na hatia, mahakama huendelea na kutoa adhabu.

Kutoa Adhabu:

Baada ya kuhukumiwa, jaji anatoa adhabu kwa kuzingatia mwongozo maalum wa adhabu kwa kosa husika.

Mazingira ya Kupunguza Adhabu:

Upande wa utetezi unaweza kuwasilisha mazingira ya kupunguza adhabu, kama vile kuwa ni kosa la kwanza, umri mkubwa, au kuwa mlezi wa familia. Mara jaji anapotoa adhabu, kesi hufungwa. Kila upande una haki ya kukata rufaa kuzingatia sheria zilizoko.

Rufaa

Wote upande wa mashtaka na utetezi wana haki ya kukata rufaa dhidi ya uamuzi au adhabu ikiwa wanaamini kuna makosa katika mchakato wa kesi au ikiwa ushahidi mpya unaibuka.

The ongoing debate in Kenya surrounding high-profile criminal cases has highlighted our limited understanding of how criminal prosecutions are conducted. There’s no better opportunity than now for the general public to familiarize themselves with the process of criminal prosecution. This knowledge is crucial as it may assist complainants, suspects, and those associated with them in avoiding actions that could potentially lead to miscarriages of justice.

In Kenya, the stages of criminal prosecution typically follow these key steps:

Making or lodging of a complaint

This initial step occurs at a police station, where the complainant files a complaint, duly recorded in an occurrence book. The complainant will then receive a reference number which is useful for tracking purposes during the investigation.

Investigation:

The police or relevant law enforcement agency conducts an investigation into the alleged crime. This involves gathering evidence, interviewing witnesses, and collecting relevant information. Additionally, statements from the complainant and their relevant witnesses may be documented, potentially leading to the drafting of a charge.

Arrest:

If the investigation reveals sufficient evidence, the suspect may be arrested. The arrest must be conducted in accordance with the legal procedures, and the suspect’s rights must be respected.

Detention lasts up to 24 hours before the individual is brought before court. If arrested on a weekend or public holiday, appearance in court must occur by the following court day.

Police bond:

After arrest, the suspect may be released on police bond pending arraignment (with the exclusion of serious crimes like murder and robbery with violenc), upon execution of a bond with or without sureties for their appearance. Minor offenses may result in the issuance of a citation with instructions for a court appearance.

Charging:

After the arrest, the suspect is formally charged with the alleged crime. This entails having the particulars of the offense, the laws contravened and the parties involved being recorded on a charge sheet. The case is then handed over to state prosecutors for assessment of evidential sufficiency. This is typically done by presenting the evidence to the prosecution authority;the Office of the Director of Public Prosecutions (ODPP) in Kenya.

Arraignment and Plea taking

Initial appearances for all offenses occur in Court. The suspect is informed of charges and prompted to enter a plea of guilty or not guilty. Guilty pleas lead to immediate conviction and sentencing by a judicial officer while a plea of not guilty progresses the matter to trial.

Bail Hearing

After plea taking, the suspect may have a bail hearing to determine if they will be released from custody pending trial. Factors such as flight risk and the seriousness of the offense are considered in this hearing. Evidence from both prosecution and defense is presented for the court’s consideration. Granted bail entails cash payment pending subsequent court appearances; denial results in remand, with case mentions every two weeks, excluding offenses punishable by fine or short imprisonment.

Trial

There may be pre-trial hearings to address procedural matters, such as evidence disclosure and legal arguments. These hearings aim to streamline the trial process. Trials entail prosecution and defense presenting their cases before a judicial officer.

Prosecution case:

The prosecution starts with opening statements, followed by presenting legislation, evidence, and witnesses.

Defense Case:

The defense then presents its case, including relevant law, witnesses, and evidence, with opportunities for cross-examination. Both parties offer closing statements before the judicial officer deliberates and renders judgment with reasons.

Verdict:

After hearing all the evidence and arguments, the judicial officer delivers a verdict of guilty or not guilty. If the verdict is guilty, the court proceeds to sentencing. A guilty verdict leads to conviction and sentencing.

Sentencing

Following conviction, sentencing is determined by the judicial officer, referencing specific offense sentencing guidelines.

Mitigation

The defense may present mitigating circumstances to potentially reduce sentencing, such as first-time offenses, advanced age, or familial breadwinner status. Once the judge pronounces the sentence, the case concludes. Either party can appeal, limited to points of law rather than fac

Appeals and Reviews

Both the prosecution and the defense have the right to appeal the verdict or sentence if they believe there were errors in the trial process or if new evidence comes to light.

Every day we are on the road commuting from one place to another, but it may be surprising , how little we may know about road traffic regulations, traffic offences or the penalty they carry.

Most times when cited with a traffic violation, we are often left at the mercy of the traffic police, with little clue on what should happen next, or even worse, totally ignorant on whether or not our actions actually violated any of the traffic regulations.

This article focuses on what the Traffic Act terms as Minor Traffic Offences as distinguished from the rest of the traffic offenses cited under the Traffic Act.

The distinction is very important to note because the process of prosecution of Minor Offenses is different from the other traffic offenses which are not classified as such.

Background

Section 117 of the Traffic Act allows for the creation of a schedule of traffic offences, dubbed, Minor Traffic Offences. A person charged with a minor offence may be dealt with and prosecuted in accordance with the provisions provided under the section; different from other offences. It also prescribes for the setting of statutory maximum penalty, for minor offences.

Pursuant to section 117 of the Traffic Act, the then Cabinet Secretary for Transport, Ministry of Transport, Infrastructure, Housing and Urban Development enacted the Traffic (Minor Offenses Rules) vide legal Notice Number 161 of 2016.

The Rules, were informed by calls from different stakeholders and members of public for the amendment of the Traffic Act to address challenges faced by various parties in implementing the law governing Traffic Offences, and to solve certain challenges which included uncertainty and inconsistencies as to the applicable fines for the various offences.

Some of the offences provided under the rules are listed below together with the maximum penalty imposed for such offences.

1. 1. Using a Mobile Phone When Driving:
   Using your phone while driving a motor vehicle is an offense that could get you stopped by the traffic police and charged with a traffic offense. The maximum penalty that would be imposed for this offense is Kshs. 2,000.
2. 2. Failure to Wear a Seat Belt:
   If caught in a vehicle driving or as a passenger without a safety belt, you risk being fined a maximum penalty of Kshs. 500.
3. 3. Failure by the Owner of the Motor Vehicle to Have the Seats Fitted with Safety Belts:
   An owner of a motor vehicle that fails to install safety belts on the seats of the car risks a maximum fine of Kshs. 1,000 for each seat that is not fitted with a safety belt. It follows that for a 5-seater vehicle, for example, a maximum fine of Kshs. 5,000 would be imposed.
4. 4. Failure of a Vehicle to Carry Reflective/Warning Sign:
   It is mandatory for all vehicles operating on the road to carry reflective warning signs (Life savers). Violation of this rule will cause an offender Kshs. 2,000 in maximum penalty.
5. 5. Travelling with a Part of the Body Outside a Moving Vehicle:
   It is not only dangerous for a person to travel with their body part outside a moving vehicle, but if caught in the act, such a person risks a penalty of Kshs. 1,000.
6. 6. Offenses Particular to PSV’s:
   Certain offenses are particular to Public Service Vehicles, including the failure of a conductor to keep the seat belts clean. It is important that the people in charge of a PSV maintain a clean vehicle, particularly ensuring that the safety belts are clean, dry, and in a wearable state. Otherwise, the conductor of such PSV will risk a maximum penalty of Kshs. 500.
7. 7. Failure to Fit Speed Governor:
   The Traffic Act requires that PSV’s and commercial vehicles be fitted with the prescribed speed governors. A violation of this rule exposes the owner of the motor vehicle or the person at the time in control of the vehicle to a maximum penalty of Kshs. 10,000.
8. 8. Failure of PSV to Carry Functional Fire Extinguisher and Fire Kits:
   It is mandatory for PSV’s to carry a functional fire extinguisher and fire kits at all times when the vehicle is moving on the roads. A violation of this rule exposes the owner of the motor vehicle or the person at the time in control of the vehicle to a maximum penalty of Kshs. 2,000.
9. 9. Driving A PSV with Tinted Windows or Windscreen:
   It is the law that the windows and windscreen of a PSV should not be tinted. A violation of this rule exposes the owner of the motor vehicle or the person at the time in control of the vehicle to a maximum penalty of Kshs. 3,000.
10. 10. Picking or Setting Down Passengers in a Place That Is Not a Bus Stop:
    It is important that drivers of the PSV’s pick up and set down passengers at designated bus stops. A driver violating this rule is liable to a maximum fine of Kshs. 1,000.

Conclusion

We are all encouraged to strictly follow traffic regulations as a sure way of keeping ourselves safe while using the road. However, we can only follow traffic regulations when we are aware of them. This article highlights some of those traffic regulations while addressing the legal repercussions of failure to follow traffic rules.

Please note that the list of minor offenses stated here is not comprehensive. To access the full list of minor offenses and the maximum penalties imposed, you can refer to the official source.