Legal Updates

Not everything that can be done should be done. Assisted reproductive technology reduces people to objects for use. It is, therefore, unconstitutional and morally reprehensible. The Assisted Reproductive Technology Bill of 2023, which seeks to legalize assisted reproductive technology, should not be passed into law.

If the matrimonial property belongs entirely to each spouse, it is simply incorrect to speak of them owning the property in “proportions” as the Supreme Court did. The proportion proper to each spouse is the whole. And while it is true that some people may actively mistreat, manipulate, or exploit their spouses, these problems are properly dealt with according to the logic of self-gift that animates the union of marriage. What a man has given does not belong to him anymore.

Here, it would be appropriate to consider what property is and its place in a marriage. In the modern context, we commonly think of property as a thing that we have the right to use without restraint (at least, in principle), and from which we have the right to exclude others.[1] Things that we own are surrounded, figuratively speaking (or even literally!),[2] by a fence. We have a right to use whatever is on our side of the fence however we want, provided that we don’t interfere with other people’s capacity to do the same. Our property is our own, and we decide what to do with it. Like our own purpose, the purpose of our property is up to us to decide.

At the heart of this judgment lie conflicting notions of property and marriage, giving rise to divergent notions of matrimonial property. The Supreme Court and the Court of Appeal use terms falling on either side of this divide when ruling on the appropriate distribution of matrimonial property. The realities these terms signify remain the same, regardless of the actual opinions of the judges who used them.

Across several jurisdictions and eras of history, dating back even to several thousands of years ago,[1] the in duplum rule aims to prevent interest rates from skyrocketing indefinitely. Whether the in duplum rule should apply to lenders other than banks is a complex question. It is instructive to compare banks to other lenders, such as micro-finance institutions (MFIs).

Conforming the definition of “spouse” in the Law of Succession Act to that in the Marriage Act. This would mean that, even for purposes of succession, men in monogamous marriages would have no legal capacity to marry other women under customary law, and their wives in their monogamous marriages would need not fear being automatically disinherited of matrimonial property. This is especially important given that, as of 2019, there are six times more widows than widowers in Kenya.[1] Even biologically, men just have a lower life expectancy.

Profit maximization as a motive bodes ill for many. Employees’ wages, product quality, fair prices, and just taxes – all of these are casualties incurred to an extent that parallels the leeway on which landholders are granted the right to absolute use and abuse of their property. The use of the corporation as a vehicle for the avoidance of taxes is certainly not without precedent.

The Court of Appeal in Kenya recently overturned a judgement by the Employment and Labour Relations Court (“ELRC”) that declared the National Social Security Fund (“NSSF”) Act unconstitutional. The Court of Appeal found that the ELRC lacked jurisdiction to consider the constitutionality of the Act as the dispute was not between an employer and employee, the sole statutory purview of ELRC’s jurisdiction. The...

"..The increase of CGT from 5% to 15% might hurt investor confidence in the property market. Halfway through 2022, reports from Hass Consult and the media have shown that demand for land and property... The property market is heading for unchartered waters. The Finance Act 2022 presents new and unique challenges for key stakeholders in Real Estate. Specifically, the Act seeks to triple capital gains tax (hereinafter referred to as ‘CGT’) from 5% to 15%.