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> For those interested in FREE weekly e-legal briefs subscribe to below newsletter Perhaps a question asked earlier "Who decides what is discussed on kictanet needs to be answered?" But Anyway, then again, that could be just me..... ---------- Forwarded message ---------- From: admin Date: Mon, Aug 18, 2008 at 9:04 PM Subject: KENYA LAW REPORTS | NEWSLTTERS | LEGAL BRIEF | August 18 To: gakuru@gmail.com Legal Notices <#legal_notices> | Forward this newletter <http://kenyalaw.org/lists/?p=forward&uid=39aad88931c61c5eb8353ca93bc22487&mid=5> 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> back to top <#top> 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. back to top <#top> (c) Copyright 2008 Kenya Law Reports -- If you do not want to receive any more newsletters, http://kenyalaw.org/lists/?p=unsubscribe&uid=0f87e7aa9e766f56bd44a985e8154427 To update your preferences and to unsubscribe visit http://kenyalaw.org/lists/?p=preferences&uid=0f87e7aa9e766f56bd44a985e8154427 Forward a Message to Someone http://kenyalaw.org/lists/?p=forward&uid=0f87e7aa9e766f56bd44a985e8154427&mid=28 On Wed, Aug 20, 2008 at 7:29 PM, alice <alice@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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