Swala Nyeti: Layman and Lawyer Discuss Legal Questions

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 ([email protected])

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 ([email protected])

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 ([email protected])

Link to the story: https://nairobinews.nation.co.ke/general/city-man-charged-with-failure-to-secure-pistol-in-his-house

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 ([email protected])

Links to the story: 

https://kenyanreport.com/2021/04/16/phillip-murgor-meets-his-demons-today-comes-face-to-face-with-mwilu-days-after-taking-her-to-court/

https://www.kenyans.co.ke/news/64249-why-lawyer-murgors-cousins-dont-want-him-be-chief-justice

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 ([email protected])

Link to the story: https://www.the-star.co.ke/news/2021-04-07-anti-imf-loan-activist-mutemi-kiama-locked-up/

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 ([email protected])

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 ([email protected])

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 ([email protected])

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:

https://www.the-star.co.ke/news/2021-04-07-sputnik-importer-threatens-to-sue-nation-media-for-fraud-story/

https://www.businessdailyafrica.com/kenya/news/-questions-over-russian-vaccine-authorisation-as-documents-indicate-high-level-board-clearance-3339112

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:

https://www.standardmedia.co.ke/nairobi/article/2001408357/insurance-firm-battling-a-land-grab-case-with-a-city-lawyer

https://www.businessdailyafrica.com/bd/corporate/companies/i-m-bank-d-sh400-million-nairobi-land-dispute-3345502