LEGAL/COMPLIANCE SPECIALIST at OSN ASSOCIATES

LEGAL/COMPLIANCE SPECIALIST at OSN ASSOCIATES Legal Services provision. Legal Consultants. Legal Compliance Specialists. Legal Audits experts.

24/01/2024

DEFENSES FOR THE CAPITAL OFFENCE OF ROBBERY WITH VIOLENCE.

Robbery requires the specific intent to use violence to steal another’s personal property and actually stealing.

Entrapment

If someone pushes the defendant into committing a robbery, it means that they would not have otherwise committed it — but for being pushed into doing it. If that happens, the defendant could have an entrapment defense. Entrapment defenses are difficult to prove. However, if the defendant can show that a law enforcement officer induced them to commit the crime, they might have entrapment as a defense.

However, suppose the defendant intended to commit robbery in the first place. In that case, they will have no entrapment defense. This applies even if the defendant was induced to commit robbery to collect evidence against the defendant.

Duress

The defendant could raise duress as a defense if it is shown that someone compelled or induced them to commit the crime. The inducement can result from the use of force or threat of force, such as severe bodily injury or immediate death to the defendant. However, its validity is often rooted in the credibility and immediacy of the threat.

It also considers the absence of a reasonable opportunity for the defendant to avoid the crime. The threatened harm and the lack of reasonable opportunity for the defendant to avoid the crime must be present for a duress defense to be successful.

Proving duress can be difficult for the defendant. Additionally, many courts have rejected this as a defense if the defendant does not have sufficient evidence. The courts also reject this defense if the defendant had ample opportunity to avoid the crime without risking death or serious injury.

There are various rules and circumstances surrounding robbery cases. These rules often affect the outcome of the case and the penalties involved. Robbery is also a serious crime that could cause long-lasting consequences and a criminal record. Thus, it is best to seek help

TAX AVOIDANCE IS LEGAL; TAX EVASION IS CRIMINAL Individuals and business owners often have more than one way to complet...
23/12/2023

TAX AVOIDANCE IS LEGAL; TAX EVASION IS CRIMINAL

Individuals and business owners often have more than one way to complete a taxable transaction. Tax planning evaluates various tax options to determine how to conduct business and personal transactions in order to reduce or eliminate your tax liability.

"Tax avoidance" and "tax evasion" are radically different. Tax avoidance lowers your tax bill by structuring your transactions so that you reap the largest tax benefits. Tax avoidance is completely legal—and extremely wise.

Tax evasion, on the other hand, is an attempt to reduce your tax liability by deceit or concealment. Tax evasion is a crime.

How do you know when shrewd planning—tax avoidance—goes too far and crosses the line to become illegal tax evasion? Often the distinction turns upon whether actions were taken with fraudulent intent.

Business owners often find themselves subject to more scrutiny than wage-earners with a similar level of income. Why? Because a business owner has more options to avoid tax, both legally and illegally. Here are some of the most common criminal activities in violation of the tax law:

Deliberately under-reporting or omitting income. This is self-explanatory: concealing income is fraudulent. Examples include a business owner's failure to report a portion of the day's receipts or a landlord failing to report rent payments.
Keeping two sets of books or making false entries in books and records. Engaging in accounting irregularities, such as a business's failure to keep adequate records, or a discrepancy between amounts reported on a corporation's return and amounts reported on its financial statements, generally demonstrates fraudulent intent.
Claiming false or overstated deductions on a return. These range from claiming unsubstantiated charitable deductions to overstating travel expenses. It can also include paying your children or spouse for work that they did not perform. The KRA is always vigilant when it comes to inflated deductions from pass-through entities.
Claiming personal expenses as business expenses. This is an easy trap to fall into because often assets, such as a car or a computer, will have both business and personal use. Proper record-keeping will go a long way in preventing a finding of tax fraud.
Hiding or transferring assets or income. This type of fraud can take a variety of forms, from simple concealment of funds in a bank account to improper allocations between taxpayers. For example, improperly allocating income to a related taxpayer who is in a lower tax bracket, such as where a corporation makes distributions to the controlling shareholder's children, is likely to be considered tax fraud.
Engaging in a "sham transaction." You can't reduce or avoid income tax liability simply by labeling a transaction as something it is not. For example, if payments by a corporation to its stockholders are in fact dividends, calling them "interest" or otherwise attempting to disguise the payments as interest will not entitle the corporation to an interest deduction.

06/09/2023

DEFILEMENT
The ingredients of the offence of defilement are set out in section 8 of the Sexual Offences Act as follows;-

a) Proof of pe*******on

b) Proof that the complainant is a child (Under the age of 18)

c) Proof that the accused was indeed properly identified as the perpetrator

In G O A v Republic [2018] eKLR, agreeing with a plethora of other case law on defilement, it was held;-

“The key ingredients of the offence of defilement include proof of the age of the complainant, proof of pe*******on and proof that the appellant was the perpetrator of the offence.”

The evidence of a single witness, the victim, is sufficient without need of corroboration. Section 124 of the Evidence Act Cap 80 Laws of Kenya provides as follows:-

“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.

20/08/2023

DO YOU HAVE THE RIGHT TO USE PHYSICAL VIOLENCE TO PREVENT PHYSICAL VIOLENCE BY THE POLICE?

You have the right to defend yourself against physical attacks, but resisting arrest is a crime, so if a police officer threatens or bullies you, the place to defend yourself is in the courtroom, not with your fists.

What do you do if a police officer threatens violence against you? Can you fight back? What if you have reasonable fear that the officer will kill you or cause permanent injury? Does the right to self-defense apply when the aggressor is a law-enforcement officer? The short answer is that, from a legal perspective, you should never use physical violence against a police officer, even if the officer is threatening or antagonizing you. Even if you are arrested unjustly, the important thing is to stay alive; there will always be a chance to fight the charges. When it is your word against the officer’s about who attacked whom?
In most violent crime cases, everything from simple assault to murder, the Court must find the defendant not guilty if the defendant can convince them that he or she acted in self-defense. For the self-defense argument to work, you must establish the following facts:

The victim was physically attacking you, attempting to attack you physically, or making credible threats of violence against you.
Your fear that you were in imminent danger was credible. (If you are twice the victim’s size and the victim did not have a weapon, you will have a hard time proving reasonable fear.)
You used a reasonable level of force, only enough to deescalate the situation so you could avoid serious injury.

17/08/2023

WHAT IS A LEGAL ISSUE?

A legal issue is something that happens that has legal implications and may need the help of a lawyer to sort out. It is a question or problem that is answered or resolved by the law. Sometimes it is not obvious that a matter will involve the law such as unexpected illness which might lead to legal questions about employment, mortgages, or insurance for example.

Legal issues can come up in lots of different ways including from planned events in your life, like buying a home or making a will. They can also appear suddenly, such as family problems, problems at work or being accused of a crime. Other common legal issues include things like consumer rights, housing problems and issues to do with debt and money.

But how do you know if your issue is a legal one? Knowing about the law and your rights can help.

11/07/2023

THE DIFFERENCE BETWEEN A CLUE AND EVIDENCE

Evidence consists in facts intended to be presented in court to support a determination of what happened. It is governed by the rules of evidence of the particular jurisdiction. “Clue” is nor a legal term. It belongs most central to criminal investigation, and clues are ordinarily understood to be facts that assist the police in determining what happened and who did it. Clues are not governed by the rules of evidence. Inadmissible facts,!such as hearsay testimony without any exceptions that would allow admission, may assist police investigation into a crime, and will not be excluded because inadmissible in court.

16/05/2023

WHAT TO DO IF AN INSURANCE COMPANY REFUSES TO PAY YOUR CLAIM,
You can sue your insurance company if they violate or fail the terms of the insurance policy. Common violations include not paying claims in a timely fashion, not paying properly filed claims, or making bad faith claims.

An insurance company has an arsenal of reasons to give you for denying your claim, some legitimate, some not. Some of the more common reasons include:
Lack of coverage: They may argue that your claim isn’t covered by your insurance policy. Examine your policy’s exclusions section to better understand what’s not covered. Ambiguities in the policy are judged in favor of the policyholder, not the insurer.
Application errors: An insurer may claim you made certain misrepresentations on your original application that nullify the coverage of your policy.
Claim errors: Check your policy to see what the requirements are for notifying the insurance company of a claim. Some timelines are as short as 24 hours.
Insurance fraud: Submitting false or exaggerated claims can amount to insurance fraud, carrying civil and criminal consequences.
Bad faith denial: Of course, they won’t give you this reason, but an insurer might offer many justifications, couched in confusing policy jargon, to simply disguise the fact that they just don’t want to pay for the claim.
When to Sue,
Every insurer has many obligations to its policyholders. They must abide by the terms of the contract (the policy), act in good faith, and avoid unfair trade practices. i.e.
An inadequate and delayed investigation into the claim
Refusing to pay a claim where liability is reasonably clear
Failing to approve or deny a claim within a reasonable or specified timeframe
Denying a claim with little or no explanation as to the reason for the denial
Failing to defend you in a liability lawsuit where at least one of the claims is potentially covered by your liability policy
Denying a claim based on an application misstatement after the period of contestability has past.
If you believe your claim was improperly denied and your insurer doesn’t seem to be budging, you can look into suing your insurance company.
Tips for Suing the Insurance Company for a Denied Claim;
Document any correspondence with the insurance company and its representatives. Keep copies of emails and take notes of phone conversations, including dates and the names of representatives. Stay calm and assume they’re recording your calls.
Maintain records of your insured property, including receipts and pictures of what’s insured. Take pictures of a property, like your car or home, immediately after an accident.
Keep track of expenses you incur, such as medical bills, repairs, attorney’s fees, and lost wages. Be honest in your assessments and record-keeping.
Choose an attorney with extensive experience in insurance litigation. Insurance law can be complex, time-consuming, and expensive.
Types of Law Suits you Can Sue an Insurance Company,
1. Breach of Contract.
2. Bad Faith Torts.

29/04/2023

A LIVING TRUST

A living trust is a legal document that, just like a will, contains your instructions for what you want to happen to your assets when you die. But, unlike a will, a living trust can avoid probate at death, control all of your assets, and prevent the court from controlling your assets if you become incapacitated.

When you set up a living trust, you transfer assets from your name to the name of your trust, which you control.

Legally you no longer own anything; everything now belongs to your trust. So there is nothing for the courts to control when you die or become incapacitated. The concept is simple, but this is what keeps you and your family out of the courts.

Do you lose control of the assets in your trust?
Absolutely not. You keep full control. As trustee of your trust, you can do anything you could do before—buy and sell assets, change, or even cancel your trust. That's why it's called a revocable living trust. You even file the same tax returns. Nothing changes but the names on the titles.

Is it hard to transfer assets into your trust?
No, and your Lawyer, trust officer, financial adviser, and insurance agent can help. Typically, you will change titles on real estate, stocks, CDs, bank accounts, investments, insurance, and other assets with titles. Most living trusts also include jewelry, clothes, art, furniture, and other assets that do not have titles.

Some beneficiary designations (for example, insurance policies) should also be changed to your trust so the court can't control them if a beneficiary is incapacitated or no longer living when you die.

One of the benefits of a living trust is that all of your assets are brought together under one plan.

Should I consider a corporate trustee?
You may decide to be the trustee of your trust. However, some people select a corporate trustee (bank or trust company) to act as trustee or co-trustee now, especially if they don't have the time, ability, or desire to manage their trusts, or if one or both spouses are ill. Corporate trustees are experienced investment managers, they are objective and reliable.

If you and your spouse are co-trustees, either can act and have instant control if one becomes incapacitated or dies. If something happens to both of you, or if you are the only trustee, the successor trustee you personally selected will step in. If a corporate trustee is already your trustee or co-trustee, they will continue to manage your trust for you.

What does a successor trustee do?
If you become incapacitated, your successor trustee looks after your care and manages your financial affairs for as long as needed, using your assets to pay your expenses. If you recover, you resume control. When you die, your successor trustee pays your debts, files your tax returns, and distributes your assets. All can be done quickly and privately, according to instructions in your trust, without court interference.

Who can be successor trustees?
Successor trustees can be individuals (adult children, other relatives, or trusted friends) and/or a corporate trustee. If you choose an individual, you should also name some additional successors in case your first choice is unable to act.

Unlike a will, a trust doesn't have to die with you. Assets can stay in your trust, managed by the trustee you selected, until your beneficiaries reach the age(s) you want them to inherit. Your trust can continue longer to provide for a loved one with special needs, or to protect the assets from beneficiaries' creditors, spouses, and future death taxes.

If you are married, your living trust can include a provision that will let you and your spouse use both of your Tax exemptions, saving a substantial amount of money for your loved ones.

08/04/2023

OWNERSHIP OF INTELLECTUAL PROPERTY.

Intellectual property (IP) is fundamental to your business’ success and longevity. It’s what helps you to stand out from your competitors and can be some of your business’ most valuable assets. Because of this, you need to understand how to protect your business’ IP and make sure that you own the works that have been created for your business.

If you’re engaging an independent contractor to design, create or develop works for your business, it becomes even more important to be aware of your intellectual property rights.

For example, you may engage someone to design a logo for your business or hire a software developer to write some code for an app your business is creating. But who actually owns this creation? Your business or the independent contractor?

By default, the independent contractor will own copyright over works they create—even if they are creating them for your business.

One of the first questions that will arise when talking about IP ownership is whether the person who created the work did so while engaged as an employee or as an independent contractor.

This is why it’s really important that you ensure IP ownership is transferred from the independent contractor to your business. If you don’t do this, it’s possible for the contractor to stop you from using the works you paid them to make!

This is a very important distinction to make, especially where there is no clear contractual relationship, as it will generally determine who owns the IP and copyright over the works.

As a general rule, employers will own the IP of works created by their employees if it is carried out “during the course of employment”. If a person is employed to create works as part of their job, the IP will belong to their employer.

However, this rule does not apply to IP created by independent contractors.

The law stipulates that IP created by an independent contractor will belong to the contractor, unless there is a contract or agreement that says otherwise.

In situations where there is no contract (or where contracts are silent on the issue of IP ownership), businesses are generally understood to have an implied licence to use the IP created for them by contractors.

The independent contractor will retain ownership over that IP unless the business has the work assigned to them (for example, through an IP Assignment Deed).

What Contracts Should You Use To Protect Your IP?
There are two main ways to go about contracting: a Contractor Agreement or an IP Assignment Deed.

A Contractor Agreement (or variations of this contract, such as a Developer Agreement or Service Agreement) deals with more than just IP. It is a robust contract that is generally used when you initially engage an independent contractor to carry out work. It sets out the terms of engagement around things like payment, liability, expected standards of services, and what happens if something goes awry.

The Contractor Agreement can also include an IP clause in which the contractor assigns ownership of the IP they create to your business. This clause clarifies who the creator of the work is and who owns it.

Alternatively, you can choose to use an IP Assignment Deed, as it is a good way to ensure ownership over IP is assigned to your business. The sole purpose of this deed is to transfer ownership of IP from one person to another—in this case, from the independent contractor to your business.

An IP Assignment Deed can also be used if work has already been created, but there was no contractual agreement relating to the ownership of IP.

You may also want to think about having Non-Disclosure Agreements (NDAs) and Confidentiality Agreements. These contracts are a good way to protect your business’ IP and other confidential information, especially if you’re engaging in confidential commercial discussions with people outside of your business.

NDAs and Confidentiality Agreements stop people from using or sharing confidential information that has been disclosed to them. They are always good to have organised early on in new relationships with independent contractors—such as when money has not yet been exchanged, or if development of a work has not yet started.

18/03/2023

SHOULD YOU PLEAD GUILTY IN COURT AFTER CONFESSING TO YOUR LAWYER,
Depends -
Just because someone confesses it doesn’t mean they did it,
If they did do it there may still be a valid defence,
If the only evidence is the confession then the Prosecution might be unable to prove that the defendant is Guilty despite them confessing,
If they did do it and are found Guilty at Trial there may still be mitigating circumstances,
And there is always the chance that what the defendant did is not in fact a crime.
SO there are many times when there is a confession but a lawyer will counsel his Client not to plead Guilty even if he confessed.

13/03/2023

Constructive dismissal

Constructive dismissal is when you’re forced to leave your job against your will because of your employer’s conduct.
The reasons you leave your job must be serious, for example, they:

do not pay you or suddenly demote you for no reason

force you to accept unreasonable changes to how you work - for example, tell you to work night shifts when your contract is only for day work

let other employees harass or bully you

Your employer’s breach of contract may be one serious incident or a series of incidents that are serious when taken together.
You should try and sort any issues out by speaking to your employer to solve the dispute.

If you do have a case for constructive dismissal, you should leave your job immediately - your employer may argue that, by staying, you accepted the conduct or treatment.

06/03/2023

THE LAW, ETHICS AND MORALITY.

Ethics as a discipline is concerned with what is morally good and bad, and right or wrong, while morality deals with standards and rules of good conduct in society, and law, as a cognitive process, regulates social life through the promulgated rules crafted by a legitimate authority.
Law and morality have established an intimate link between them. Law and morality are related to each other. Laws exist to satisfy the moral desire of society or we can say that almost all laws are based on moral principles of the society at large. Laws reflect the social, economic, and political relationship between the state and society by determining the rights and duties of every citizen towards other citizens and the state. Law and morality generally influence each other as if law influences the moral principles of society then it would easily be accepted by individuals of that society.
ABORTION AND SEXUALITY
If we consider the laws of abortion and homosexuality, many sections of our society would not favour this legislation as these acts of abortion and homosexuality are against their moral principles and if the state enacts these legislations then there is a clash between laws and morality.
The aim of law is that people should be governed by accepted rules which are general and abstract known and certain and applied equally to all individuals. It is obvious that there is a close relation between law and morality because they both seek our piece of mind and justice to achieve the aim of regulation of human life.

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