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[Gakuru, Alex]

Alice that happened last week on Friday and it reported by Business
Daily on Monday
<http://www.bdafrica.com/index.php?option=com_content&task=view&id=9443&Itemid=5847>

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---------- Forwarded message ----------
From: admin
Date: Mon, Aug 18, 2008 at 9:04 PM
Subject: KENYA LAW REPORTS | NEWSLTTERS | LEGAL BRIEF | August 18
To: gakuru at gmail.com




 Legal Notices <#legal_notices>
 | Forward this newletter
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 LEGAL BRIEF | CASE OF THE WEEK

 UNJUST ENRICHMENT THROUGH ECOMONIC DURESS: HIGH COURT DECISION
REVERSED

 Reported by Michael Murungi

 Kenya Commercial Bank Ltd & another v Samuel Kamau Macharia & 2
others [2008]eKLR (www.kenyalaw.org <http://www.kenyalaw.org/>
)

 Court of Appeal at Nairobi

 P.K. Tunoi, E.M. Githinji & J.W. Onyango Otieno JJ.A

 July 31, 2008

 The Court of Appeal has reversed a decision of the High Court
awarding Kshs. 56 Million to businessman and media magnate Samuel K.
Macharia in a protracted litigation with government-owned financial
institutions that had the high drama of the political intrigues
characteristic of the 1980 s and 90 s.

 Justice (Rtd.) Richard Kuloba had in January 2003 ruled in favour of
Macharia and his company, Madhupaper International Ltd, after he found
that the Kenya Commercial Bank (KCB), the Kenya Commercial Finance
Company (KCFC) Ltd and the Kenya National Capital Corporation had
abused the influence of the then President Dianel Arap Moi and Joseph
Arap Letting, then the Head of Public Service and Secretary to the
Cabinet, in applying unconscionable pressure and economic duress on
Macharia and his company to overpay a loan by over Kshs. 56 Million.
(see Madhupaper International Ltd & another V Kenya Commercial Bank
Ltd & 2 others [2003] KLR 31 or on www.kenyalaw.org
<http://www.kenyalaw.org/>
 case search).

 Madhupaper had borrowed Kshs. 50 Million from the three institutions
in 1981 with a view to establishing a plant for the manufacture of
tissue paper from recycled waster paper collected within the city of
Nairobi. As a security for the loan, Madhupaper had given the lending
institutions a charge over all its assets. After the company defaulted
in its repayments, the lenders executed the terms of the charge by
placing it in receivership to recover an outstanding Kshs. 54 Million
made up of the balance of the unpaid principal sum and interest.

 Macharia filed three suits against the lenders and the government
but he would later withdraw them after the parties reached a
negotiated settlement. Under that settlement, Madhupaper paid Kshs.
54 million in settlement of the loans and withdrew its litigation and
in return, KCB and the other two lenders lifted the receivership.
However, one week later, the lenders returned the money to Madhupaper
and restored the receivership citing certain conditions that
Madhupaper had attached to the settlement which they did not find
acceptable. Further negotiations ensued and in July 1989, when
soaring interest and other costs had raised the outstanding loan to
over Kshs. 110 Million, Madhupaper executed a deed which would later
become the subject of renewed litigation. Under the deed, Madhupaper
paid Kshs. 110 Million to the lenders in full and final settlement of
the loans. The receivers were recalled and Macharia finally resumed
the management of Madhupaper.

 In 1992, Macharia and Madhupaper filed a suit in the High Court
claiming that their actual indebtedness at the time of the deed was
Kshs. 54 Million and that the extra Kshs. 56 million had been
extracted from them through undue influence and fraud. After almost a
decade of litigation, Justice Kuloba delivered a judgment in which he
analyzed and applied the principles of economic duress, restitution
and unjust enrichment. He found that Macharia and Madhupaper had been
subjected to illegitimate pressure and had been coerced through the
unconscionable conduct of KCB and the other lenders to pay surplus
monies over and above what they actually owed. Accordingly, judgment
was entered in favour of Macharia and Madhupaper in the amount of
Kshs. 56 million representing the surplus monies paid to the
financial institutions. KCB and the other lenders had filed an
appealed against the decision in 2004.

 While the Court of Appeal agreed with the High Court s exposition of
the principle of unjust enrichment and its application to Kenya
generally, that a person who has received an unjust benefit at the
expense of another should not be allowed to retain the benefit   it
differed with the manner in which the High Court had applied the
principle to the facts of the case. Restitution or repayment cannot
be ordered where the benefit in question was conferred through a
valid legal obligation owed by the claimant to the defendant, the
Court of Appeal observed. In other words, a person who has an honest
claim in law to the money of another person, whether though a loan
agreement, a charge, etc, cannot be said to have been unjustly
enriched if he is paid that which was legally owed to him.

 Having evaluated the evidence on which the High Court had based its
decision, the Court of Appeal found that the agreement for the
payment of Kshs. 110 Million had voluntarily signed by the parties to
it in the presence of their directors or advocates. In fact, Appeal
Judge P. Tunoi noted that  Macharia and Madhupaper were represented
by some of the most able and prominent counsel in the country .
Macharia had signed the deed on behalf of Madhupaper in the presence
of his advocates without raising any protest or question as to their
willingness to pay the money and they had not challenged the validity
of the deed.

 Moreover, the Court found no evidence of any compulsion or duress
having been brought upon Macharia and Madhupaper to pay the money. In
fact, the High Court had been wrong in finding that KCB and the other
lenders had roped Joseph Arap Letting into the affair  for the
purpose of creating terror  in Macharia and Madhupaper. On the
contrary, the Court of Appeal found, it was Macharia who had courted
the intervention of the then President Moi and Letting. There was no
evidence of any direct intervention by the former President or at
least any undue intervention by Letting.

 The Court of Appeal further observed that Macharia and Madhupaper
had voluntarily committed themselves to pay by entering into a valid
deed. Therefore, by making the payment, they were performing an
obligation owed to KCB and the other institutions which had a valid
and honest claim against them. The High Court had arrived at a wrong
decision after it had misdirected itself by misconstruing the facts
and the evidence, and on that account, the Court of Appeal had the
jurisdiction to interfere with the decision.

 The judgment of the High Court was set aside and substituted with an
order dismissing Macharia s claim. Macharia and Madhupaper were
ordered to pay to the other parties the costs of the appeal.

 Download File
<http://kenyalaw.org/Downloads_FreeCases/kcb_V_madhupaper_-_3_Judgments.pdf>

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 WHEN BAD CHARACTER EVIDENCE MAY BE ALLOWED

 By Michael Murungi

 August 2008

 Mohamed Hassan Osman v Republic [2008] Eklr (http://www.kenyalaw.org
)

 Court of Appeal at Mombasa

 R.S.C. Omolo, E.O. O Kubasu & J.W. Onyango Otieno JJ.A

 July 18, 2008

 The Court of Appeal has reiterated that the evidence of an accused
person s previous bad character may not be adduced against him unless
he has himself brought the matter of his character in issue in the
trial. Accordingly, a court which is presiding over a criminal trial
should warn an accused person who unwittingly raises the issue of his
character that he could be waiving the protection given to him by the
rule barring the prosecution from calling damning evidence of his
criminal record.

 The Court made the remarks in a judgment in the case of Mohamed
Hassan Osman who had appealed against his conviction and sentence of
death for the offence of robbery with violence. Osman had been tried
and convicted in the Senior Resident Magistrate s Court at Mombasa
for having participated in the 1998 bank robbery at the Housing
Finance Company of Kenya Ltd (HCFK) in Mombasa. Among the various
witnesses called by the prosecution, the eight had been an
eye-witness to the robbery. He had told the court that on the day of
the robbery, he had seen Osman, who was well known to him, walking
out of the bank with a pistol in one hand and a bag slung back over
his shoulder. Osman had reportedly winked at the witness and muttered
to him  kauka , a popular street term which the witness understood to
mean as a discrete command to stay put or keep quiet.

 The witness testified that Osman was his neighbour in a residential
estate of Mombasa and that he had led the police to Osman s house
where he was arrested. It appears that Osman did not have the benefit
of legal representation during his trial and that he might have
unwittingly asked a question during his cross-examination of the
witness which brought in issue the question of his general character.
In answer to that question, the witness had stated:  I knew you for
two years prior to this incident. You live ten blocks away from my
house. You are a well known person in that area. You are a criminal
and people fear you as such.. .

 While conducting his defence, Osman had conceded that he knew the
witness but he told the court that the witness s had been motivated
by a grudge to falsely testify against him.

 The trial magistrate found that the witness was credible and that
Osman had been identified through recognition by a person known to
him. This evidence, considered together with the rest of the
prosecution s case, led the trial court to find that the prosecution
had established the guilt of Osman beyond reasonable doubt, and Osman
was sentenced to death.

 When the High Court examined the record of the trial court during
its consideration of Osman s first appeal, it found that there was no
basis for interfering with the trial court s findings of fact and its
application of the law. The conviction and sentence were confirmed,
prompting Osman to lodge a second and final appeal in the Court of
Appeal, this time with the benefit of legal counsel in the person of
Francis Kadima. Among the grounds raised in his second appeal,
Osman s advocate argued that the witness had wrongly brought the
question of Osman s character in issue because he (Osman) had not
raised it. He further submitted that the trial court ought not to
have admitted the bad character evidence and that the court should
have prevented Osman from asking the questions regarding his
character or it should have at least restrained the witness from
answering them.

 The Court of Appeal agreed that it was an established principle of
our criminal justice system that the evidence of an accused person s
previous bad character is inadmissible unless the accused himself has
put his own character in issue. In the circumstances of this case, the
Court observed that it was obvious from the record of the proceedings
in the trial court that it was Osman who had put his character in
issue in his mode of questioning during the cross-examination of the
witness. It was Osman who had asked the questions that had led to the
answers touching on his character. The Court of Appeal regretted that
the trial magistrate had failed to caution Osman about asking such
questions but noted that the witness was bound to answer them and
Osman could not complain at the appeal stage about an issue which he
had  brought upon himself . Ultimately, the Court of Appeal ruled
that there was nothing in the complaint raised by Osman that could
not justify the reversing of the decision of the High Court.

 Furthermore, upon a consideration of rest of the evidence, the Court
of Appeal was satisfied that Osman had been properly convicted and
that the charge against him had been established beyond reasonable
doubt. Osman s appeal was therefore dismissed.

 Download Case
<http://kenyalaw.org/Downloads_FreeCases/Mohamed_Osmanv_R.pdf>

 back to top <#top>

 Kenya Gazette Vol. CX   No. 68, 15th August, 2008

 GAZETTE NOTICE NO. 7292

 THE COTTON ACT (Cap. 335)

 APPOINTMENT

 IN EXERCISE of the powers conferred by section 3A (1) (b) (i) of the
Cotton Act, the Minister for Agriculture appoints

 DAVID WAMBUA JOEL MASIKA

 to be a member of the Cotton Development Authority, for a period
specified in Gazette Notice No. 8717 of 2007, with effect from 31st
July, 2008.

 Dated the 7th August, 2008.

 WILLIAM ARAP RUTO,

 Minister for Agriculture.

 GAZETTE NOTICE NO. 7293

 THE TEA ACT (Cap. 343)

 APPOINTMENT

 IN EXERCISE of the powers conferred by section 3 and 3A of the Tea
(Amendment) Act, 1999, the Minister for Agriculture appoints

 Under section 3(1) (e)

 Francis Migiro Ongwae;

 Under section 3(1) (f)

 Silas Juma Njibwakale,

 Immanuel Kimmutai,

 to be members of the Tea Board of Kenya, for the balance of the
period specified in Gazette Notice No. 5912 of 2006, with effect from
30th July, 2008.

 Dated the 7th August, 2008.

 WILLIAM ARAP RUTO,

 Minister for Agriculture.

 GAZETTE NOTICE NO. 7294

 THE POVERTY ERADICATION COMMISSION

 APPOINTMENT

 IT IS notified for general information that the Minister of State
for Planning, National Development and Vision 2030, has appointed

 Lt.- Gen. John Koech   (Chairman),

 Edward Ndungi Laama,

 Tiyah Galgalo Ali (Ms.),

 Henry Nyamu M Narobi,

 Murshid Abdalla Mohammed,

 Victoria Mgoi Mwafuga (Ms.),

 Mohammed Abdi Abdulahi,

 Bramwel Kisuya,

 John M. Najoli,

 Joseph Omachi Musaa (Dr.),

 Wilson Kipkazi,

 Robert Kipsang Chumba,

 James E. Owino Okwero,

 Wilson Ouma Onyango

 Edward Mogusu Mogoko,

 Purity Gathoni G. Ngunjiri,

 Permanent Secretary, Ministry of State for Planning, National
Development and Vision 2030,

 Permanent Secretary, Ministry of Finance,

 Permanent Secretary, Ministry of Youth Affairs,

 Commissioner of Social Services, Ministry of Gender and Sports,

 to be members of the Poverty Eradication Commission for a period of
three (3), with effect from 7th August, 2008.

 The Terms of Reference of the Commission are as presented in Gazette
Notice No. 2295 of 1999.

 Dated the 7th August, 2008.

 W. A. OPARANYA,

 Minister of State for Planning,

 National Development and Vision 2030.

 GAZETTE NOTICE NO. 7295

 THE KENYA COMMUNICATIONS ACT (No. 2 of 1998)

 INFORMATION AND COMMUNICATIONS TECHNOLOGY SECTOR POLICY GUIDELINES

 POLICY GUIDELINE

 IT IS notified for information of the general public that the
Minister for Information and Communications has issued the policy
guidelines set out in the schedule hereto, in order to replace
paragraph 5.7 and the words appearing in the subheading
 Telecommunication Market Structure  in Annex I of Gazette Notice No.
2431 of 2006, and has duly notified the contents thereof to the
Communications Commission of Kenya, in accordance with the provisions
of section 5(4) of the Kenya Communications Act, 1998.

 SCHEDULE

 5.7 Market Structure:

 This policy framework focuses on establishing a market structure
capable of attracting investment in the sector and allowing the
creation of a versatile information and Communications Technology
(ICT) infrastructure for leveraging national development. The market
structure will be reviewed from time to time in line with changing
market needs and technological trends.

 http://5.7.1.
 Adoption of a Unified Licensing Framework (ULF):

 The Government will adopt a unified licensing and technology neutral
regulatory framework (ULF) in order to enable optimum utilization of
existing infrastructure for provision of diverse services.

 Consequently, operators and service providers will be licensed under
a market structure consisting of the following broad market segments:

 (a) Network Facilities Provider (NFP)

 Operations under this category shall own and operate any form of
communications infrastructure (based on satellite, terrestrial,
mobile or fixed).

 (b) Applications service Provider (ASP)

 Licences under this category will provide all forms of services to
end users using network services of a facilities provider.

 (c) Contents Services Provider (CSP)

 Licenses under this category shall provide contents services
material, other information services and data processing services.

 5.7.2 Process of Migration:

 CCK will be expected to ensure a smooth transition to the ULF and
will encourage licence holders who wish to migrate to the new
framework to seek the appropriate modified license(s) from CCK as
provided for under Annex 1.

 5.7.3 Licensees who opt to remain under old regime:

 The Government recognizes that there are some licensees who may not
be able to migrate to the new framework immediately. To this end, CCK
will ensure that licensees who choose to operate under their existing
licenses retain those licenses under the original terms.

 5.7.4 Protection of existing rights:

 The Government is committed to fostering a predictable and
attractive regulatory environment capable of attracting and promoting
investments in the sector. Against this background, the CCK will
ensure that the terms and conditions of the modified licences under
ULF will not diminish the rights of existing licences.

 To provide even more certainty in the sector, licences issued under
the ULF will be on the same more favourable terms.

 CCK will also ensure that when modifying licences existing licensees
maintain their numbering resources and assigned radio frequency
spectrum for the duration for which those resources are assigned.

 Consistent with the Government s objective of ensuring a smooth
transition to the ULF, no licensees should be charged or incur
expenses relating to the horizontal migration of existing licences.

 The attached Annex 1 gives the possible migration scenarios for the
existing licensees depending on their scope of operation.

 ANNEX 1

 Existing Licences

 Licence Options under unified licensing framework

 National Fixed and Mobile operators

 Network facility provider tier 1

 Application service provider

 Content service provider

 Data Carrier Network Operators (DCNOs)

 Network facility provider tier 2

 Application service provider

 Content service provider

 Local loop Operators(LLOs)

 Network facility provider tier 3

 Application service provider

 Content service provider

 Cable Television Operators (Regional/National)

 Network facility provider tier 2/3

 Application service provider

 Content service provider

 Value Added Service Provider, Internet Service Provider, etc.

 Application service provider

 Content service provider

 Horizontal Migration to ULF

 Notes.   1. The table provides the possibilities of migration
available to existing licences.

 2. Licensees that migrate horizontally to ULF will not be required
to pay additional fee. However, those wishing to upgrade licences
i.e. vertically upgrade will be subjected to the usual application
process.

 Dated the 4th August, 2008.

 SAMUEL POGHISIO,

 Minister for Information and Communications.

 GAZETTE NOTICE NO. 7296

 THE MAGISTRATE S COURTS ACT (Cap. 10)

 INCREASE OF LIMIT OF JURISDICTION

 IN EXERCISE of the powers conferred by section 5(1) of the
Magistrate s Courts Act, the Chief Justice increases the limit of
jurisdiction of

 LUCY W. GITARI

 Acting Chief Magistrate, to Kenya shillings three million (KSh.
3,000,0000), with effect from 1st August, 2008.

 Dated the 22nd July, 2008.

 J.E. GICHERU,

 Chief Justice.

 GAZETTE NOTICE NO. 7582

 THE NATIONAL ASSEMBLY AND PRESIDENTIAL ELECTIONS ACT (Cap. 7)

 APPOINTMENT OF MEMBERS OF LANGUAGE BOARD AND LANGUAGE APPEALS BOARD

 IN EXERCISE of the powers conferred by section 42A(b) of the
Constitution of Kenya and in accordance with the second schedule of
the Presidential and Parliamentary Elections Regulations, 1992
paragraph 1, the Electoral Commission appoints the following person
to be members of the Language Board and Language Appeals Board, for
the purpose of section 34(c) of the Constitution.

 The appointments shall take effect from 18th August, to 2nd
September, 2008 which is the final date of formal nomination for
parliamentary candidates.

 Language Board   New Jogoo House  B , 6th Floor, Room No. 607

 Enos O. Oyaya   (Chairman)

 Members:

 Kimanthi Nkanata

 Fidelis Nakhulo

 James Kairu

 Margaret Muandale

 J. D. Waudo

 Mary Ndiangui

 Odongo Malenya

 Appeals Board-New Jogoo House  B , 5th Floor, Room No. 511

 George Godia (Prof.)   (Chairman)

 Members:

 Leah Rotich

 John Opiyo

 Salome Wenyaa

 Esther Ogumbo

 Margaret Ndanyi

 Patrick Aghan

 Fredrick Iraya

 Dated 12th August, 2008.

 S.M. KIVUITU,

 Chairman,

 Electoral Commission of Kenya.

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 (c) Copyright 2008 Kenya Law Reports



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On Wed, Aug 20, 2008 at 7:29 PM, alice <alice at apc.org> wrote:
> Apologies for breaking the "rhythm" but this has IG  implications as
> well :-)
>
> best
> alice
>
>
> Unified license takes effect in Kenya
> By Rebecca Wanjiku , IDG News Service , 08/20/2008
>
>
> The much awaited unified license has taken effect in Kenya after the
> Ministry of Information and Communication issued new policy
> guidelines aimed at streamlining license requirements and attracting
> more investors.
>
> The guidelines, revealed in this week's Kenya Gazette notice, drop
> the multiple licensing regime where services were grouped on the
> basis of technology. ISPs (Internet service providers), for instance,
> were formerly required to obtain a separate license to offer VoIP
> (voice over Internet Protocol).
>
> Don't Miss!
> Read the latest WhitePaper - The Rise of USB in the Data CenterUnder
> the new license regime, operators and service providers will be
> licensed under three broad market segments: network facilities
> providers, application service providers and content service
> providers. The modified licenses will retain the original terms to
> give operators time to transfer to the new regime.
>
> Network facility providers will own communication infrastructure
> based on either satellite, terrestrial, mobile or fixed lines. There
> are three tiers of providers under this category: fixed line network
> operators; data carrier network operators; and network facilities
> providers, including local loop providers, international gateway
> operators and companies providing fiber optic cable landing
> facilities.
>
> Content service provider licensees will provide information and data
> processing services and include premium rate and credit card
> validation service providers
>
> The unified license policy guidelines were developed after complaints
> by industry players that the Communications Commission of Kenya
> required too many licenses and was not taking into consideration
> issues of convergence in the ICT sector.
>
> The guidelines stipulate that the CCK will regulate the adoption of
> the new licenses and the smooth transition of companies that may hold
> more than one license.
>
> http://www.networkworld.com/news/2008/082008-unified-license-takes-
> <http://www.networkworld.com/news/2008/082008-unified-license-takes->
> effect-in.html
>
> __._,_.___
>
> __,_._,___
>
>
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