The normative foundation for an accused person’s right to a fair trial is the 2010 Constitution. ... more The normative foundation for an accused person’s right to a fair trial is the 2010 Constitution. Kenya’s 2010 Constitution has a Bill of Rights distinguishing absolute and qualified rights. All the constitutional rights enshrined in Article 25 can never be temporarily suspended or permanently abolished, even during states of emergency. One of these absolute constitutional rights is the right to a fair criminal trial. According to the 2010 Constitution, a fair criminal trial has several ingredients. The paper asserts that when a person gets prosecuted for a crime, they may have absolute rights in Article 25, but Article 21 may be the basis for sometimes limiting their right to a fair trial.
This paper explores the concept of Geographical Indicators (GIs) as a form of intellectual proper... more This paper explores the concept of Geographical Indicators (GIs) as a form of intellectual property rights that protect products tied to specific geographic regions. Kenya's legal framework, operating under a monist jurisdiction, relies on international treaties such as the WTO's Trade-Related Aspects of Intellectual Property Rights (TRIPS) for GI regulation. TRIPS Articles 22, 23, and 24 establish a global framework for GI protection, with Article 24 introducing exceptions to infringement claims. Despite criticism, Article 24's 'lack of national protection' clause poses a significant threat to Kenya's economy. The use of certification trademarks is considered, but its limitations and potential for misuse are highlighted, especially in the context of Kenyan coffee. The paper underscores the risks associated with a state-centric approach to GIs, ultimately affecting the marketability of Kenyan coffee abroad.
Article 159(2)(c) of the Constitution is Kenya's principal law governing commercial arbitration. ... more Article 159(2)(c) of the Constitution is Kenya's principal law governing commercial arbitration. Secondary rules are extracted from legislation, ratified treaties, applicable UK law, and customary norms. One of the overriding goals of commercial arbitration in Kenya is the finality of arbitration proceedings. This means an arbitrator's decision remains final unless an aggrieved party has narrow grounds to challenge the ruling in a judicial forum. One of these limited grounds is a violation of the public policy doctrine, which may be unconstitutional because it contradicts the supreme nature of the 2010 constitution. Even if one accepts that the public policy doctrine is compatible with the 2010 constitution, the Arbitration Act does not define public policy concerns in the context of Kenyan commercial arbitration. The current paper charts a way forward past this impasse.
The Kenyan Constitution has got interpreted to mean that courts cannot amend or create criminal l... more The Kenyan Constitution has got interpreted to mean that courts cannot amend or create criminal law because of the limits imposed on judicial power. The problems pinpointed in this brief essay can only be fixed through legislative intervention. Proposals to abolish the death penalty in Kenya got defeated during the constitution-making process because public opinion strongly favors retention. Hence, the right to life is qualified so that capital punishment can continue being enforced. Abolishing the death penalty would require a referendum. In the meantime, the Muraretu doctrine developed by Kenya's Supreme Court demands that homicide law gets reformed to avoid violating the theory of proportionality codified under Article 24 of the Constitution.
Kenya’s is a common-law jurisdiction. Consequently, our juvenile justice system was initially anc... more Kenya’s is a common-law jurisdiction. Consequently, our juvenile justice system was initially anchored in the theory of retributive justice. But when the Kenyan Constitution came into force on the 27th of August 2010, criminal punishments became the exercise of public power to derogate rights away from convicted criminals which must comply with the tests for proportionality under Article 24 of the Bill of Rights. Furthermore, the operation of Article 2(6) of the Constitution has made ratified treaties a formal source of applicable law within the Kenyan legal system. This short essay argues that post 27th August 2010, it unconstitutional to subject children convicted of capital offences to life in prison without any guarantee that they will be paroled. This is because it amounts to an indeterminate life sentence that violates the absolute prohibition against cruel and unusual punishments under Article 25 of the Constitution.The essay shall argue instead that to reconcile public concerns about violent juvenile offending with the qualified constitutional rights of minors not to be subjected to long prison terms,the minimum age of criminal liability needs to be raised to 13 and juvenile capital offenders in the 14 to 17 age range need to be incarcerated for terms which reflect their culpability in capital offences for reasons that will be enumerated in the essay.
This article delves into the historical and legal foundations of the offense of defilement, which... more This article delves into the historical and legal foundations of the offense of defilement, which involves an adult engaging in sexual intercourse with a minor. Rooted in the Statute of Westminster of 1275, the crime was originally designed to protect a father's proprietary interest in his teenage daughter's virginity. The article explores the origins of defilement as a strict liability offense, primarily focusing on the concept of reasonable belief as a defense for individuals deceived into sexual encounters with minors.
The article further examines the introduction of statutory rape into Kenyan law, its persistence post-independence, and its current regulation under section 8 of the 2006 Sexual Offences Act. It highlights the strict liability nature of defilement, which disallows the victim's consent as a defense, and underscores the significance of the reasonable belief defense.
A critical case, Charo v Republic, is analyzed, where a man in his mid-20s was exonerated for engaging in sexual activity with a 14-year-old girl. The article scrutinizes Judge Chitembwe's interpretation of the law in this case, which seemingly deviated from legislative intent, legal precedent, and the reasonable belief defense outlined in the Sexual Offences Act. It also discusses the potential constitutional implications of such judicial decisions, emphasizing the limits on judicial authority as stipulated by the 2010 Constitution.
In conclusion, this article sheds light on the legal intricacies surrounding defilement and judicial interpretations, highlighting the tension between legislative intent, legal precedent, and constitutional constraints within the Kenyan legal framework.
Article 47 of the Constitution of Kenya makes the doctrine of legitimate expectations a constitut... more Article 47 of the Constitution of Kenya makes the doctrine of legitimate expectations a constitutional issue rather than a creature of the common law applicable in Kenya. The implication of this fact needs a new understanding in light of its potential impact on how discretionary power by public and private entities may be exercised.
The Constitution of Kenya 2010 prohibits the discrimination of people on the basis of gender.The ... more The Constitution of Kenya 2010 prohibits the discrimination of people on the basis of gender.The law of inheritance in Kenya is governed by the Law of Succession Act ,Chapter 160 Laws of Kenya.One of its provisions is the customary law clause that excludes the application of the law intestate succession to the estate of persons domiciled in specific regions of Kenya.This customary law clause raises serious constitutional questions this paper will adress.
Introduction to the Study of the Law of the Constitution, 1915
AV Dicey's Introduction to the Study of the Law of the Constitution was first
published in 1885 i... more AV Dicey's Introduction to the Study of the Law of the Constitution was first published in 1885 in London by Macmillan and Co. New editions were issued by the same publisher in 1886, 1889,1893,1897, 1902, and 1908. In each of these editions, Dicey attempted to reflect such constitutional changes as he believed had occurred since the previous edition. When he prepared an eighth edition in 1914 (the eighth edition was published in 1915, but Dicey dated his preface in 1914), Dicey left the text as it had been in the seventh edition of 1908 but added a long introduction in which he discussed both actual changes in the British Constitution and various changes that were then under discussion. In 1939, a ninth edition was prepared under the editorship of E. C. S. Wade. In this edition, a long introduction by Wade was substituted for Dicey's introduction to the eighth edition, and Dicey's appendix was omitted in favor of one by Wade. This edition was reprinted several times.
This is a digital copy of a book that was preserved for generations on library shelves before it ... more This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project to make the world's books discoverable online. It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover. Marks, notations and other marginalia present in the original volume will appear in this file-a reminder of this book's long journey from the publisher to a library and finally to you. Usage guidelines Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing this resource, we have taken steps to prevent abuse by commercial parties, including placing technical restrictions on automated querying. We also ask that you: + Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for personal, non-commercial purposes. + Refrain from automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the use of public domain materials for these purposes and may be able to help. + Maintain attribution The Google " watermark " you see on each file is essential for informing people about this project and helping them find additional materials through Google Book Search. Please do not remove it. + Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner anywhere in the world. Copyright infringement liability can be quite severe.
The normative foundation for an accused person’s right to a fair trial is the 2010 Constitution. ... more The normative foundation for an accused person’s right to a fair trial is the 2010 Constitution. Kenya’s 2010 Constitution has a Bill of Rights distinguishing absolute and qualified rights. All the constitutional rights enshrined in Article 25 can never be temporarily suspended or permanently abolished, even during states of emergency. One of these absolute constitutional rights is the right to a fair criminal trial. According to the 2010 Constitution, a fair criminal trial has several ingredients. The paper asserts that when a person gets prosecuted for a crime, they may have absolute rights in Article 25, but Article 21 may be the basis for sometimes limiting their right to a fair trial.
This paper explores the concept of Geographical Indicators (GIs) as a form of intellectual proper... more This paper explores the concept of Geographical Indicators (GIs) as a form of intellectual property rights that protect products tied to specific geographic regions. Kenya's legal framework, operating under a monist jurisdiction, relies on international treaties such as the WTO's Trade-Related Aspects of Intellectual Property Rights (TRIPS) for GI regulation. TRIPS Articles 22, 23, and 24 establish a global framework for GI protection, with Article 24 introducing exceptions to infringement claims. Despite criticism, Article 24's 'lack of national protection' clause poses a significant threat to Kenya's economy. The use of certification trademarks is considered, but its limitations and potential for misuse are highlighted, especially in the context of Kenyan coffee. The paper underscores the risks associated with a state-centric approach to GIs, ultimately affecting the marketability of Kenyan coffee abroad.
Article 159(2)(c) of the Constitution is Kenya's principal law governing commercial arbitration. ... more Article 159(2)(c) of the Constitution is Kenya's principal law governing commercial arbitration. Secondary rules are extracted from legislation, ratified treaties, applicable UK law, and customary norms. One of the overriding goals of commercial arbitration in Kenya is the finality of arbitration proceedings. This means an arbitrator's decision remains final unless an aggrieved party has narrow grounds to challenge the ruling in a judicial forum. One of these limited grounds is a violation of the public policy doctrine, which may be unconstitutional because it contradicts the supreme nature of the 2010 constitution. Even if one accepts that the public policy doctrine is compatible with the 2010 constitution, the Arbitration Act does not define public policy concerns in the context of Kenyan commercial arbitration. The current paper charts a way forward past this impasse.
The Kenyan Constitution has got interpreted to mean that courts cannot amend or create criminal l... more The Kenyan Constitution has got interpreted to mean that courts cannot amend or create criminal law because of the limits imposed on judicial power. The problems pinpointed in this brief essay can only be fixed through legislative intervention. Proposals to abolish the death penalty in Kenya got defeated during the constitution-making process because public opinion strongly favors retention. Hence, the right to life is qualified so that capital punishment can continue being enforced. Abolishing the death penalty would require a referendum. In the meantime, the Muraretu doctrine developed by Kenya's Supreme Court demands that homicide law gets reformed to avoid violating the theory of proportionality codified under Article 24 of the Constitution.
Kenya’s is a common-law jurisdiction. Consequently, our juvenile justice system was initially anc... more Kenya’s is a common-law jurisdiction. Consequently, our juvenile justice system was initially anchored in the theory of retributive justice. But when the Kenyan Constitution came into force on the 27th of August 2010, criminal punishments became the exercise of public power to derogate rights away from convicted criminals which must comply with the tests for proportionality under Article 24 of the Bill of Rights. Furthermore, the operation of Article 2(6) of the Constitution has made ratified treaties a formal source of applicable law within the Kenyan legal system. This short essay argues that post 27th August 2010, it unconstitutional to subject children convicted of capital offences to life in prison without any guarantee that they will be paroled. This is because it amounts to an indeterminate life sentence that violates the absolute prohibition against cruel and unusual punishments under Article 25 of the Constitution.The essay shall argue instead that to reconcile public concerns about violent juvenile offending with the qualified constitutional rights of minors not to be subjected to long prison terms,the minimum age of criminal liability needs to be raised to 13 and juvenile capital offenders in the 14 to 17 age range need to be incarcerated for terms which reflect their culpability in capital offences for reasons that will be enumerated in the essay.
This article delves into the historical and legal foundations of the offense of defilement, which... more This article delves into the historical and legal foundations of the offense of defilement, which involves an adult engaging in sexual intercourse with a minor. Rooted in the Statute of Westminster of 1275, the crime was originally designed to protect a father's proprietary interest in his teenage daughter's virginity. The article explores the origins of defilement as a strict liability offense, primarily focusing on the concept of reasonable belief as a defense for individuals deceived into sexual encounters with minors.
The article further examines the introduction of statutory rape into Kenyan law, its persistence post-independence, and its current regulation under section 8 of the 2006 Sexual Offences Act. It highlights the strict liability nature of defilement, which disallows the victim's consent as a defense, and underscores the significance of the reasonable belief defense.
A critical case, Charo v Republic, is analyzed, where a man in his mid-20s was exonerated for engaging in sexual activity with a 14-year-old girl. The article scrutinizes Judge Chitembwe's interpretation of the law in this case, which seemingly deviated from legislative intent, legal precedent, and the reasonable belief defense outlined in the Sexual Offences Act. It also discusses the potential constitutional implications of such judicial decisions, emphasizing the limits on judicial authority as stipulated by the 2010 Constitution.
In conclusion, this article sheds light on the legal intricacies surrounding defilement and judicial interpretations, highlighting the tension between legislative intent, legal precedent, and constitutional constraints within the Kenyan legal framework.
Article 47 of the Constitution of Kenya makes the doctrine of legitimate expectations a constitut... more Article 47 of the Constitution of Kenya makes the doctrine of legitimate expectations a constitutional issue rather than a creature of the common law applicable in Kenya. The implication of this fact needs a new understanding in light of its potential impact on how discretionary power by public and private entities may be exercised.
The Constitution of Kenya 2010 prohibits the discrimination of people on the basis of gender.The ... more The Constitution of Kenya 2010 prohibits the discrimination of people on the basis of gender.The law of inheritance in Kenya is governed by the Law of Succession Act ,Chapter 160 Laws of Kenya.One of its provisions is the customary law clause that excludes the application of the law intestate succession to the estate of persons domiciled in specific regions of Kenya.This customary law clause raises serious constitutional questions this paper will adress.
Introduction to the Study of the Law of the Constitution, 1915
AV Dicey's Introduction to the Study of the Law of the Constitution was first
published in 1885 i... more AV Dicey's Introduction to the Study of the Law of the Constitution was first published in 1885 in London by Macmillan and Co. New editions were issued by the same publisher in 1886, 1889,1893,1897, 1902, and 1908. In each of these editions, Dicey attempted to reflect such constitutional changes as he believed had occurred since the previous edition. When he prepared an eighth edition in 1914 (the eighth edition was published in 1915, but Dicey dated his preface in 1914), Dicey left the text as it had been in the seventh edition of 1908 but added a long introduction in which he discussed both actual changes in the British Constitution and various changes that were then under discussion. In 1939, a ninth edition was prepared under the editorship of E. C. S. Wade. In this edition, a long introduction by Wade was substituted for Dicey's introduction to the eighth edition, and Dicey's appendix was omitted in favor of one by Wade. This edition was reprinted several times.
This is a digital copy of a book that was preserved for generations on library shelves before it ... more This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project to make the world's books discoverable online. It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover. Marks, notations and other marginalia present in the original volume will appear in this file-a reminder of this book's long journey from the publisher to a library and finally to you. Usage guidelines Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing this resource, we have taken steps to prevent abuse by commercial parties, including placing technical restrictions on automated querying. We also ask that you: + Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for personal, non-commercial purposes. + Refrain from automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the use of public domain materials for these purposes and may be able to help. + Maintain attribution The Google " watermark " you see on each file is essential for informing people about this project and helping them find additional materials through Google Book Search. Please do not remove it. + Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner anywhere in the world. Copyright infringement liability can be quite severe.
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Papers by George Wanyama
The article further examines the introduction of statutory rape into Kenyan law, its persistence post-independence, and its current regulation under section 8 of the 2006 Sexual Offences Act. It highlights the strict liability nature of defilement, which disallows the victim's consent as a defense, and underscores the significance of the reasonable belief defense.
A critical case, Charo v Republic, is analyzed, where a man in his mid-20s was exonerated for engaging in sexual activity with a 14-year-old girl. The article scrutinizes Judge Chitembwe's interpretation of the law in this case, which seemingly deviated from legislative intent, legal precedent, and the reasonable belief defense outlined in the Sexual Offences Act. It also discusses the potential constitutional implications of such judicial decisions, emphasizing the limits on judicial authority as stipulated by the 2010 Constitution.
In conclusion, this article sheds light on the legal intricacies surrounding defilement and judicial interpretations, highlighting the tension between legislative intent, legal precedent, and constitutional constraints within the Kenyan legal framework.
Books by George Wanyama
published in 1885 in London by Macmillan and Co. New editions were issued by the
same publisher in 1886, 1889,1893,1897, 1902, and 1908. In each of these editions,
Dicey attempted to reflect such constitutional changes as he believed had occurred
since the previous edition.
When he prepared an eighth edition in 1914 (the eighth edition was published in
1915, but Dicey dated his preface in 1914), Dicey left the text as it had been in the
seventh edition of 1908 but added a long introduction in which he discussed both
actual changes in the British Constitution and various changes that were then under
discussion.
In 1939, a ninth edition was prepared under the editorship of E. C. S. Wade. In this
edition, a long introduction by Wade was substituted for Dicey's introduction to the
eighth edition, and Dicey's appendix was omitted in favor of one by Wade. This
edition was reprinted several times.
The article further examines the introduction of statutory rape into Kenyan law, its persistence post-independence, and its current regulation under section 8 of the 2006 Sexual Offences Act. It highlights the strict liability nature of defilement, which disallows the victim's consent as a defense, and underscores the significance of the reasonable belief defense.
A critical case, Charo v Republic, is analyzed, where a man in his mid-20s was exonerated for engaging in sexual activity with a 14-year-old girl. The article scrutinizes Judge Chitembwe's interpretation of the law in this case, which seemingly deviated from legislative intent, legal precedent, and the reasonable belief defense outlined in the Sexual Offences Act. It also discusses the potential constitutional implications of such judicial decisions, emphasizing the limits on judicial authority as stipulated by the 2010 Constitution.
In conclusion, this article sheds light on the legal intricacies surrounding defilement and judicial interpretations, highlighting the tension between legislative intent, legal precedent, and constitutional constraints within the Kenyan legal framework.
published in 1885 in London by Macmillan and Co. New editions were issued by the
same publisher in 1886, 1889,1893,1897, 1902, and 1908. In each of these editions,
Dicey attempted to reflect such constitutional changes as he believed had occurred
since the previous edition.
When he prepared an eighth edition in 1914 (the eighth edition was published in
1915, but Dicey dated his preface in 1914), Dicey left the text as it had been in the
seventh edition of 1908 but added a long introduction in which he discussed both
actual changes in the British Constitution and various changes that were then under
discussion.
In 1939, a ninth edition was prepared under the editorship of E. C. S. Wade. In this
edition, a long introduction by Wade was substituted for Dicey's introduction to the
eighth edition, and Dicey's appendix was omitted in favor of one by Wade. This
edition was reprinted several times.