admin – Mahida And Maina Advocates

How to protect yourself from ‘fake’ lawyers

October 18, 2023

The idea of ‘fake it till you make it’ has been idolized in recent years. We all admire the bravery it takes for someone to do something they are not ‘qualified’ to do, sometimes even better than those who are. The higher the stakes, and the more they have to lose if they get caught, the more thrilling it is. It’s like watching a very captivating movie in real life. However, we have to agree that this only works for some professions. I would not be comfortable flying in a plane with a self-taught pilot. Even for a minor surgery, I wouldn’t want to be operated on by someone who has read all medicine books or even watched 1000 videos on YouTube on operations. It is the same case for a legal practitioner. No matter how ‘good,’ knowledgeable, or charismatic they may be in court, it is to your disadvantage. Because even if you win, you still lose. We have heard the phrase ‘null and void’ so many times in this country. This is what happens to a ruling if the lawyer in charge of your case is not qualified. It doesn’t matter how much time has passed since then. This is exactly why you must know whether the lawyer you engage is qualified, trustworthy, and competent to handle your case. Qualifications of an Advocate Anyone who identifies as an Advocate must have a Law Degree Certificate from a recognized university in Kenya or an institution approved by the Council of Legal Education (CLE). They must have undertaken the Advocates Training Program and passed The Bar Examinations. After this, the lawyer must complete their pupillage (apprenticeship) before being assigned the role of an advocate. Every new advocate is assigned a unique designation called a practicing number. This is what uniquely identifies them from the rest. It is also the one sure way to know that the person you are dealing with is authentic. You can verify them by a simple Google search of their name on the Law Society of Kenya’s (LSK) website, and their practicing number should match the name. Note: An individual with a law degree is not an Advocate. They are known as a Lawyer (when speaking, we sometimes use the terms interchangeably, but it’s important to know the difference). A lawyer can only give you legal advice but cannot represent you in court or perform the role of an Advocate. To attempt to do this is a criminal offense. Filing a Complaint This is where the distinction between a lawyer and an advocate comes in handy. Unlike a lawyer, an advocate is bound by the codes and ethics of the Legal Profession because they are a member of LSK, the professional body in charge of the legal profession in Kenya. When an Advocate breaks the codes and ethics of the profession, they answer to the Disciplinary Tribunal. You can also lodge a complaint against an advocate for professional misconduct to the Advocates Complaints Commission. It is, however, important to note that a complaint lodged against an Advocate to the Tribunal does not disqualify them from practicing. […]

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DUE DILIGENCE: 5 Things Causing New Land Owners Sleepless Nights

May 8, 2023

It is a Kenyan dream to own a family home. Some prefer to have it close to the city, or at least close to where they work. Others simply want a home away from the busy city life where they can spend the golden days with peace and serenity. Whether you are in the first or second group, we can all agree that the process of building a home is not easy. It is very costly, time-consuming, and stressful…especially if it is your first time. But even before you start building, identifying a piece of land you wish to build on (if you don’t have one already) and paying for it is another strenuous task. This is why it hurts deeply when after all that effort, you find yourself in the above situation when it rains. We would like to tell you that this is the only problem you could face as a new landowner. But it’s not. There are other legal problems that are just as painful. By the time you are done reading this, you will know the FIVE things causing new landowners sleepless nights and how to avoid them. In our legal profession, we have seen many bad things happen to good, innocent, and hardworking Kenyans who only wanted to acquire a good piece of land to build a home or rental property. This is why we will always insist you do thorough due diligence to avoid losing your money to a fraudulent deal. The case of flooding land is sometimes tricky to assess because it can happen out of natural and unforeseen causes. In most cases, however, the seller fails to disclose this information so they can make the sale. In the due diligence process, there is a clause that requires the land seller to disclose any defect on the piece of land before the final transactions. This is why you should be well-versed in the due diligence process. If you did not get an opportunity to engage with our previous article on due diligence, click here and get informed. As I mentioned earlier, flooding land is NOT the only problem that can make you regret your investment decision as a new landowner. We have five more legal issues that you be cautious of when buying land or any other property. By getting acquainted with this, you will be better than 80% of Kenyan land buyers who are most likely to fall victim to the same. The five legal issues you need to watch out for… INTERESTS This is the most obvious thing to check, but also what many people miss. Some properties contain fines, accumulated land rates, and other arrears that were not settled, which you inherit as the new land owner. In some cases, it may be more than what was paid for when purchasing the property. PROHIBITIONS This is one of the least known laws by the general public regarding land. It’s not always the case that when you buy land, you can do anything you want with it. Some places are designated for commercial purposes, others for agriculture, and most for residential […]

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Five Things you Must Do Before Buying Land in Kenya

March 16, 2023

You have just identified your ideal piece of land. It is just a few meters away from the main road. You can see schools, a couple of well-known churches, and a shopping center with a well-stocked supermarket, which is just a 15-minute drive. The offer is crazy, and you just can’t wait to have your name on the title deed. You pull strings left, right, and center to get the full amount. You pay, and after a few weeks, you get your title deed as promised. Only later do you discover that there are 3 other people with the same documents, also claiming ownership. The seller is nowhere to be found! This is a predicament facing many people buying property in Kenya. You at least know of one person who has been defrauded. It’s all over the news. And we can assure you that the heap of files in our courts is ever-increasing. In short, you do not want to be a victim. And you will never be if you carefully read this article to the end. We have dealt with land and property cases (Conveyance) for many years. We have assisted thousands of people in buying and selling property. We have also helped with cases of fraud. Some were successful. Some were too far gone for anything to be salvaged. With this experience, we share with you some of the things we feel are important when buying property in Kenya. DUE DILIGENCE When purchasing property, it is not enough to invest your money. Investing enough time to know what you are buying is equally important. For instance, you need to know the property’s current or previous owner(s). You need to find out if the location at the registrar’s office matches what you saw on the ground. You want to know if there is a charge or easement law on the land. This is the process of Due Diligence. Due Diligence is the research you conduct, physically or virtually, that helps you know the ownership of a title to a property and whether or not that title is inhibited from various processes or procedures. For example, when a land owner uses her title deed to acquire a loan from a bank, the bank registers an instrument called a Charge. This means that whoever wields the title is responsible for the loan. This is one of the many reasons why the due diligence process should be thorough. You will avoid potential pain and losses in future. Let’s go to the fine details. Below is an in-depth analysis of what due diligence entails, explained in a simple way that is easy to digest. 1. Search This is the first and most important step in the Due diligence process. Initially, you had to make a request to the land’s office and wait in line for your request to be honored. Thanks to the digital platform (Ardhisasa), the process is easier and faster. A Search is conducted by the one desiring to Purchase the property through their Advocate. You can do it yourself physically, but we will be doing you great injustice by not […]

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SMALL CLAIMS COURT IN KENYA

June 18, 2022

It is unfortunate that something so obvious and direct can be a source of headaches and stress for many. The nature of a business is that one offers their goods or service, and the other person pays the agreed price. But as simple as that sounds, many choose to devise their own rules to the disadvantage of the supplier. If you are an SME owner, you must have been here at least once. Not getting paid on time or at all does not only affect your business but your health as well. The high levels of stress, anxiety, or in extreme cases, depression may end up costing you more than the profits you expect. It is even worse when the survival of your business depends on receiving what you are owed. To add salt to the injury, without good representation, pursuing legal action has been another source of more stress and anxiety. The backlog of cases in courts in Kenya is on a high. Especially without enough money for legal fees needed to have a professional dedicated to your lawsuit. It may be years before you get justice. Years you don’t have. The Small Claims Court is established by the Small Claims Act 2016. It is a subordinate court in the court system structure in Kenya under Article 169 (1) of the Constitution. This was a superb initiative to counter the legal problems SME owners face and the common Mwananchi by extension. The goal is to enhance the ease of doing business in Kenya by reducing the backlog of cases and resolving disputes through simple, inexpensive, and expeditious procedures, thus enhancing access to justice. Jurisdiction of the court Section 12(1) of the Small Claims Court Act provides that the court has jurisdiction to hear civil claims relating to:- a) A contract of sale and supply of goods or services b) A contract relating to money held and received c) Liability in tort d) Compensation for personal injuries e) Set-off and counterclaim under any contract. The Small Claims Court is, however, limited in jurisdiction. Limits which work more to your advantage, that not. One, they can only preside over money matters not exceeding Kenya Shillings One Million (Kshs.1 000,000), excluding interests and costs. These are more likely to consume less time before getting a ruling. Second, as provided by Section 11(2) of the Small Claim Court Act, they have local limits. But thanks to the efforts of the Judiciary Service Commission, in the able hands of Chief justice Martha Koome, we will have one in every county. So far, we have operational courts in counties such as Kajiado, Nyeri, Kiambu, Eldoret, to name but a few. The court is presided by an adjudicator, an advocate of the High Court of Kenya, with at least three years of experience. Reasons to file at the Small Claims Court a) Simplified Court procedures – The court does not follow the civil procedure rules that drag matters longer. b) The filing fees are affordable – New civil or commercial claims range from Kshs. 200 – 1000 depending on the value of the claim. There are […]

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Data Protection Act in Kenya

June 18, 2022

Simply put, Kenya’s Data Protection Act is a data privacy law enacted in 2019 to protect your privacy by ensuring that companies or organizations do not abuse it. What is Data Protection, and what does it entail? It is the process of keeping important data safe from corruption, compromise, or loss. It is also ensuring that it can be restored in case of loss or corruption. The need for laws to secure people’s data privacy is because organizations demand more and more data every passing day, and the risk of undermining your privacy is high. Kenya’s Data Protection Act is one of the many data privacy laws that have emerged in recent years globally. The Act was enacted to monitor institutions and individuals who control or process personal information for people in and outside Kenya. The Data Protection Act Principles Lawfulness, fairness, and transparency – Your data should be obtained fairly, with your knowledge and consent. Purpose limitation – Your data should be collected for a specific purpose communicated to you in advance. Data minimization – Personal data should be limited to only what is necessary. Accuracy – Your data MUST be correct, complete, and up to date. Storage limitation – It should not be kept longer than necessary. Once it has served its purpose, it should be deleted. Integrity and confidentiality – The data controller must ensure that your data will not be altered or corrupted by any authorized/entitled persons. Accountability – Institutions or individuals that process or control data should comply with the set data protection laws. What are the rights of an individual under GDPR? General Data Protection Regulations (GDPR), which is where the Kenya Data protection Act draws from, grants you these exclusive rights: • The right to be informed on how they gather your data and how long they plan to retain it. • The right to access your data whenever you want. • The right to rectification where data is missing or was updated erroneously. • The right to the erasure of the data permanently when you feel compromised. • The right to restrict the processing of the data by the data controller under specific circumstances. • The right to data portability which means you can collect and reuse your data as you will. • The right to object to the processing of your data. E.g., when a company wants to use it for marketing purposes. • The right not to be subject to automated decision-making. Companies must notify you that you will be subject to algorithmic decision-making where you have a right to decline. Consent Many people do not know this, but the company should share information disclosing race, health status, biometric data, sex, sexual orientation, origin, belief, marital status, and family details without your consent. The company should notify you anytime they intend to share with a third party. The law is clear that you should know whom they share it with, how long, who else will have access, and what purpose. There should also be security measures to guarantee its safety. You also reserve the right to withdraw your consent when […]

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BEST LAW FIRM IN KENYA

June 18, 2022

Contrary to what many people believe, there is no such thing as the best law firm in Nairobi, Kenya, or any other part of the world. Being the best law firm would mean one excels in all fields of practice beyond any other. As you goggled, however, you have most certainly encountered titles like “top 10 law firms in Kenya” or “top law firms in Nairobi,” which seem to indicate ranks. These, in most cases, are not factual, and when they are, it is for particular merits, not the entire practice of law. We, however, understand that with the presence of so many law firms in Kenya, it can be a challenge to find one that is best for your case. This article is for you. You will learn the most important things you need to consider when finding a law firm. FIVE CRUCIAL THINGS TO LOOK FOR IN A LAW FIRM 1. Areas of specialization – Always find a law firm or lawyer with specialty and experience in the case you have. They are best suited to locate the direction of your legal issue and handle it accordingly. 2. Track record – Always seek to know their successes in previous cases, especially those similar to yours. You have a right to ask for their success graph. NB: Find a lawyer who is capable both in the courtroom and behind the desk, as your case may depend on it! 3. Staying power –Given a chance to choose between two law firms in Nairobi offering the same services you need. One with two years of practice, and the other ten years, which would you choose? Naturally, you feel more confident with the one that has existed for longer. This is not to say that you should choose a start-up firm. It’s just a question of where your heart feels at peace. For example, we have been in practice for 69 years. How does it make you feel having your case in our hands? 4. Mode of communication – You and your lawyer should decide how to communicate. This ensures that you don’t miss important developments in your case. You should decide on the mode and the frequency of meetings so they can factor you into their unpredictable schedule. 5. Billing system – The terms of payment MUST be clear. This may differ for different firms or depending on the nature of your case. Determine whether you’ll be charged hourly, per appearance in court, in fixed amounts, or on retainer. GETTING A LAW FIRM THAT SUITS YOUR BUDGET Speaking of billing, let’s talk about budgets! Legal services are more often assumed to be very expensive, yet from an accounting perspective, the profit margins are similar to those of any other business. The billing system of lawyers is governed by the Advocates Remuneration Order, which discourages, with harsh penalties, the possibility of lawyers overcharging or undercharging. Tips to get a lawyer that best suits your budget would be: (a) Referrals – This goes without saying. If you know someone that has encountered a similar legal issue, you will want to contact the firm […]

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How do you deal with property fraud?

January 28, 2022

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What is the difference between a right of way and an easement?

August 17, 2018

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