MR WAKIMANI Flashcards

1
Q

How can one commence with a Civil Suit?

A

A Civil Suit is commenced by way of pleadings. Preliminaries before commencing a civil suit include cause of actions, Parties.

It could be either of the following ways:
1. Plaint (Default way most pleadings are drafted provided for under Order 4 of the CPR. It should be accompanied by a verifying affidavit)
2. Petition (Constitutional issues, succession matters, election petitions, admission as an advocate)
3. Originating Summons (Shortened version of a plaint and used where the law provides i.e matters of adverse possession. It is provided for under Order 37 of the CPR)
4. Chamber Summons (Used in Judicial Review Proceedings)
5. Notice of Motion (
6. Judicial Review
7. Memorandum of Claim (Used in dispute of employment where compensation is wanted)

(The rest should have supporting affidavits which require the respective annexures to be attached)
Together with those, you have to file the summons to enter an appearance to the respective party that was sued.

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2
Q

How to file a Criminal Suit?

A
  1. First, report to the nearest police station. Your complaint will be recorded in the occurrence book and you will be given a reference number for investigation purposes. The police may record statements from you and from your witnesses and draft a charge.
  2. One is then arrested and booked into custody. If the accused is on bail bond they appear on the date indicated therein. If they are in custody, it is the state’s duty to ensure attendance.
  3. One gets the arraignment date where they shall be taking the plea
  4. The charge is read to the accused and he is asked if he understands what is being read to him. He is asked to either plead guilty or not guilty
  5. If one admits, admission is recorded. The court then convicts him and passes a sentence or makes an order against him unless evidence to the contrary appears.
  6. If the accused pleads not guilty, the prosecution opens its case and gives a brief outline of the prosecution’s case indicating who it shall call as witnesses.
  7. At the close of the case, Court is to determine if the prosecution has proved a prima facie case against the accused.
  8. If this is proved the accused is put on defense and has to tell his side of the story and thereafter call his witnesses.
  9. After both cases are closed, both sides may make their final submissions
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3
Q

What is Civil Procedure Law?

A

Civil procedure is the body of law that regulates the process that courts must follow when hearing cases of a civil nature (a “civil action,” as opposed to a criminal action).

Civil procedure refers only to form and procedure, and not to the substantive law that gives people the right to sue or defend a lawsuit.

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4
Q

What is a notice of motion?

A

A notice of motion shall be instituted in a Suit of the Matter in which the application is intended to be made and shall state the time, place of application, and nature of the order asked for and shall be addressed to the party or parties intended to be affected by it.
This is unless. they have an advocate on record in which case it will be addressed to them.

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5
Q

Describe the Judicial Review process?

A
  1. The JR Process is sui generis (of its own kind). It is neither Criminal nor Civil in Nature.
  2. It is provided for under Order 53 of the CPR, Article 23 of the Constitution, FAA, and the Law Reform Act.
  3. JR Proceedings can also be instituted under private persons
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6
Q

What is included in the reply to a divorce petition?

A

NOTE: You can not reject a divorce petition. Where you agree, you file an answer and a cross-petition where you disagree with some of the grounds raised.

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7
Q

What happens when you don’t reply a divorce petition?

A

It becomes uncontested

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8
Q

Can a party consent to a divorce?

A

There is rarely a meeting of the minds during a divorce. In the same way, you cannot reject it, you also cannot consent to it.

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9
Q

What are the grounds for a divorce petition?

A

Section 65 of the Marriage Act, 2014 sets out the grounds for dissolution;

a) If a party to the marriage commits one or more acts of adultery;
b) Cruelty, whether mental or physical, inflicted by the other party on the petitioner or on the children of the marriage;
c) Exceptional depravity by the other spouse;
d) Irretrievable breakdown of the marriage,

Section 66(6) of the Marriage Act states that a marriage is considered irretrievably broken down if:
1) a spouse commits adultery; a spouse is cruel to the other spouse or to any child of the marriage;
2) a spouse willfully neglects the other spouse for at least two years immediately preceding the date of presentation of the petition;
3) The spouses have been separated for at least two years, whether voluntarily or by a decree of the
4) a spouse has deserted the other spouse for at least three years immediately preceding the date of presentation of the petition;
5) If a spouse has been sentenced to a term of life imprisonment or for a term of seven years or more;
6) Where a spouse suffers from incurable insanity, where two doctors, at least one of whom is qualified or experienced in psychiatry, have certified that the insanity is incurable or that recovery is improbable during the lifetime of the respondent in the light of existing medical.
7)Desertion by either party for at least three (3) years immediately preceding the date of presentation of the petition. It must be proved the spouse left without a reasonable cause.

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10
Q

What is the difference between a divorce and an annulment?

A

In divorce, marriage existed in the beginning whereas in annulment, there was no marriage

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11
Q

What is the difference between void and voidable marriages?

A

Section 11 of the Marriage Act states that void marriages are illegal marriages e.g a marriage with a minor whereas a voidable marriage can be canceled by either party e.g on issues of consummation.

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12
Q

What are instances where a demand letter is not issued?

A
  1. Divorce Petition
  2. Mareva Injunctions
  3. Anton pillar Orders
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13
Q

What is an Anton Pillar order?

A

Anton Piller order (frequently misspelled Anton Pillar order) is a court order that provides the right to search premises and seize evidence without prior warning. This is intended to prevent the destruction of relevant evidence, particularly in cases of alleged trademark, copyright, or patent infringements.

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14
Q

What is a Mareva Injunction?

A

A Mareva Injunction is a court order freezing a debtor’s assets to prevent them from being taken abroad.

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15
Q

What is Caveat Emptor? What are its exceptions?

A

Caveat Emptor is a Latin term that means ‘Buyer Be Aware’. It enshrines the principle that buyers are responsible for making sure that a product works to their satisfaction before buying

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16
Q

What are the Exceptions to Caveat Emptor?

A
  1. Sale was by sample
  2. Misrepresentation by seller where the sale was by description
17
Q

What are challenges of using movables as security?

A
  1. Fluctuation of the market
  2. The issue of commingled goods
  3. Movables can be sold yet they are collaterals
  4. Lack of a standard way of describing movables
  5. Difficulty in establishing that the movables are already encumbered
  6. Depreciation of movable
  7. Discuss the ‘Twyne’s case and the Dyal Singh v Kenya Insurance’

TWYNE’S CASE
Pierce, a farmer, owed Twyne of Hampshire £400. He also owed another creditor £200, and this creditor brought an action. While the writ was pending, Pierce sold his sheep to Twyne to pay off his debt. However, Pierce remained in possession of the sheep, marking and shearing them. At the other creditor’s instance, the Sheriff of Southampton came to collect the sheep. Twyne and his acquaintances resisted this. Twyne argued that he was a bona fide purchaser for valuable, and not inadequate, consideration within the Fraudulent Conveyances Act 1584

18
Q

What is the role of an insolvency practitioner?

A

NOTE: They have to meet the qualifications under Section 6 of the Insolvency Act
ROLE: To play as a supervisor in voluntary arrangements

19
Q

How can a company become liquidated?

A

LIQUIDATION BY THE COURT: SECTION 423 OF INSOLVENCY ACT

  1. Members’ voluntary liquidation: Through a resolution of a company and the liquidator is appointed. In this type of liquidation where members appoint one or more liquidators by way of a resolution at a general meeting of the members.
    The appointment of the liquidator has the effect of causing the director’s powers to cease.
  2. Creditor’s liquidation: Through a special resolution. This type of voluntary liquidation requires convening a meeting of the company’s creditors within 14 days after the resolution for liquidation is proposed.
    a) The company must send notices to all the creditors and publish such notice once in the Kenya Gazette, once in at least two newspapers circulating in the area in which the company has its principal place of business in Kenya, and on the Company’s website if any.
    b) The liquidator, who must be an authorized insolvency practitioner, shall be nominated by the creditors in their meeting. Where the creditors fail to nominate a liquidator, the company shall nominate one.
    c) The directors of the company shall be required to prepare a statement of the company’s financial position and lay it before the creditor’s first meeting.

NOTE: With liquidation by either method discussed above, the company’s property is to be applied in satisfaction of the company’s liabilities equally and without preference and to be distributed among the members according to their rights and interests in the company.

20
Q

What is the difference between an ordinary resolution and a special resolution in Company Law?

A

Ordinary resolutions require a simple majority (50% +1) to move the resolution while special resolutions require 75% of the votes of the shareholders.

Examples of where Ordinary resolutions can be used: Electing directors, declaring dividends, electing auditors

Examples of where special resolutions can be used: Reducing the capital of a company, altering articles of association, Changing a company’s name, the decision to wind up a company, conversion of a company

21
Q

Which Acts did the MPSR Act Repeal?

A

The Chattels and Mortgages Act and the Pawn Brokers Act

22
Q

What should you consider as an Examination in Chief?

A
  1. No to ask leading questions
  2. Consider the four W’s (What, When, Where, and How)
  3. The accused can view their witness statement to refresh their memory
  4. Whether the examination in chief will be able to contradict the arguments that will be presented by the opponent
23
Q

What is Re Examination?

A

Takes place after Cross Examination to affirm what was raised during Cross-Examination

24
Q

Are leading questions allowed during Re Examination?

A

Section 150 of the Evidence Act states that leading questions may only be asked in re-examination with permission of the court.
Section 151 provides that leading questions can only be asked in Cross Examination

25
Q

What is the purpose of Movable Properties Securities Rights (MPSR)?

A

Section 3 of the MPSR Act
1. Regulation of movable properties as security
2. Establish the office of registrar of security rights and establishes a registry that can register the notices
3. Enhance the ability of individuals to access credit using movable access
4. It Considers Intellectual Property as collaterals