Mudeshi Muhanda & Co Advocates

25/09/2020

Birthday celebrations....

11/07/2020

Step parents have no mandatory responsibility under the Children Act except an order made by the court in the best interest of the child.

18/03/2020

ON EMPLOYMENT LAW;

Courts have held that where an employee declines to present his written explanation as required by the employer or present himself for the hearing at the show cause meeting, The employee shall be deemed to have effectively locked himself out of the internal disciplinary handling process and cannot be hard to say he was not given an opportunity to defend himself

31/12/2018

20/12/2017

By definition adoption is a process whereby a person assumes the parenting of a child from its biological parent and in so doing permanently transfers all rights and responsibilities along with affiliation from the biological parents. In kenya Four types of adoptions are recognised, the first is a kinship adoption where you adopt a child from a relative within the family this includes children who are orphaned. The second is a local adoption where you being a kenyan citizen adopt a child who has been abandoned. Local adoptions can only be done once a child has been reported at a police station as abandoned and has been legally placed into a children's home. It is therefore worth noting that the mere fact that you have picked an abandoned child it cannot be assumed that you have adopted the child, an abandoned child must be taken to the nearest police station and it is only the police who have the mandate to place the child in a children's home where upon the child can be freed for adoption. A local adoption is only undertaken for abandoned children who are in a children's home.

The fourth type of an adoption is known as a mother offer adoption this is where the child's mother voluntarily places her child for adoption by persons unknown to her for reasons that she is unable to take care of the child or the child is an outcome of a r**e incidents.

The final type of adoption is an international adoption this is a type of adoption undertaken by persons who are not kenyan citizens but who desire to adopt a child from Kenya.

Once a child is adopted into the family she or he has a right of inheritance from the adopting parent as though she were their own biological child secondly any member of the adopting family cannot have a s*xual relationship with an adopted child for that amounts to in**st.

For one to qualify to adopt a child she or he must be at least 21 years of age and not more than 64 years of age. The process of adopting a child must go through the court process and will normally take about 6 months.

Once a child is adopted she is issued with a birth certificate with the adopting parents as her father and mother.

The law provides that a single person can adopt only a child of the same gender with him or her and thus an adoption can be done by both single persons and married persons.

25/09/2017

Landmark Ruling on Minors Defiling Each other.
The High Court has released a 17-year-old boy who was remanded in an adult jail for a year.
The Government has also been ordered to pay the boy Sh200,000 for discrimination and abuse of his right to be treated as a child.
The boy was arrested for defiling his teenage girlfriend.
Justice Hellen Omondi said the State had discriminated against the boy, named POO, based on his s*x.
The judge noted that the boy was charged alone whereas under the Sexual Offences Act, he could not consent to s*x on account of his age and so he too was a victim of defilement.
The judge said both the boy and the girl should have been charged with defiling each other.
“I find that the appellant was discriminated against on the basis of (his) s*x in that he was charged alone but in reality, they both needed protection against s*xual activities,” ruled Ms Omondi.
The boy got into trouble with the law after having s*x with his girlfriend. The girl got pregnant after which her parents pressed defilement charges against the boy.
In her verdict, Omondi said the Government should redraft the penal law to accommodate children who engage in consensual s*x.
She said children caught engaging in s*x needed counselling, not punishment.
“Does a boy under 18 years have the legal capacity to consent to s*x? Haven’t both children defiled themselves? Shouldn’t both of them be charged or better still shouldn’t the Children’s Officer be involved? Preferably, a file for a child in need of care and protection ought to be opened for both of them,” she said.
“I think these are children who need guidance and counselling rather than criminal penal sanctions. I really think this kind of situation should be re-examined in the criminal justice system.”
The judge observed that when the boy was arraigned in the magistrate’s court on February 16 last year, he told the court he was 16 years old.
The lower court ordered a medical examination to ascertain his age. However, the court was told the test was not done despite several reminders.

21/09/2017

Lord Brian Francis Kerr also Known as Baron Kerr of Tonaghmore a Justice of the Supreme Court of the United Kingdom and the former Chief Justice of Northern Ireland while addressing Lawyers and Judges on 8th October 2002 said
"Ladies and gentlemen, the opportunity to dissent may not be the ultimate jewel in the Crown of British justice but it is certainly a gem to be treasured. The fact that a judge is constrained by no more than his or her conscience in deciding how he should adjudicate is as fundamental to the health of our system of justice as it is possible to imagine. The great dissents in British legal history speak loudly of the independence of our judiciary and, in consequence, inspire the confidence that the public place in the administration of justice in this country. The opportunity to dissent has never been more important than it is today. Since the coming into force of the Human Rights Act decisions that judges must make in many cases are far less likely than in times past to be determined by their view of black letter law. Resolution of competing policy arguments or even moral choices is far more frequently the staple of judicial decision than previously. Judges must confront human right claims of fundamental importance; often vital societal issues are at stake. That they should feel entirely uninhibited by anything more than their conscience and their conviction of what is the right and just legal outcome is assuredly the glory of our system of law. If on nothing else we can surely all be unanimous that the need for the right to disagree is one that brooks no dissent.”
Dissenting Judgements are never personal or fault finding missions. They are meant to demonstrate personal convictions about an issue and to glorify the Law not individuals. The beauty about Our Supreme Court Judgement is that now we have a dissent in a Presidential petition but Judges who dissent must bear in mind that dissenting judgements must be about resolution of conflicting policy arguments and moral choices not their fellow colleagues.

09/06/2017

I said so,

Decision mentioned during Gender Justice Uncovered Awards.

21/03/2017

" Judges are servants of the people yes, but they ought not to be subjected to unfair labour practices by being made and or forced to work for more than 18 hours without rest throughout the year in order to deliver on their mandate. To demand that all public procurement matters and or judicial review cases be heard and determined within the stipulated timeframes without regard to the available judicial time and human and other resources that are available for such exercise will be subjecting the judges to conditions that will no doubt negatively impact on their physical and mental health, as the existing structure already makes them work beyond the 12 hours in a given day." Aburili J.

14/10/2016

Justice Chitembwe sitting in Malindi high court has disastrously held in Martin Charo vs Rep while discussing an obvious case of difilement that " it is true that under the s*xual Offences act, a child below the age of 18 years cannot give consent to s*xual in*******se. However where the child behaves like an adult and willingly sneaks into men's houses for purposes of having s*x,the court ought to treat such a child as a grown up who knows what she is doing" he goes on to state that " .......can we say that the appellant took advantage of a young girl and defiled her, the circumstances clearly show that it is the complaint who went to the appellant's house to have s*x and then go home......if she was a young girl then why did she go to the appellant's house to have s*x?...the conduct of the child plays a fundamental role in a defilement case,.......where the child is under 18 who is protected by the law opts to go into men's house to have s*x why should the court conclude that such a person was defiled?" I respect this judge and particular ly the jurisprudence he has established in family law but on this he is WRONG, a child is a child having s*xual in*******se with a child is wrong, it is worse when the judge shifts the blame to the child, a young child does not have the soundness to judge the effect of having s*x with an adult she may enjoy s*x like an adult because she is human and even keep going for more, but pardoning an adult who continues to have s*x with a child because the child came to his house for s*x is like condoning a corrupt public cashier because he receives money every day. John Chigiti have your say please.