Confirmation of Grant: Overcoming a Protest and Finally Distributing the Estate

Obtaining a grant of letters of administration is only the halfway point in succession. The administrator cannot distribute the estate, and beneficiaries cannot register land in their names, until the grant is confirmed. Confirmation is also the stage at which disputes most often surface, usually through a protest.

What confirmation involves. Under section 71 of the Law of Succession Act, the administrator applies to confirm the grant, generally after six months from its issue. The application sets out the proposed distribution. The court must be satisfied that all dependants and beneficiaries are identified, that their shares are properly worked out, and that the administrator has properly administered the estate.

Protests. A person who objects to the proposed distribution may file an affidavit of protest. Typical grounds are that a beneficiary has been left out, that a share is unfair, or that a particular asset is not estate property. The court then hears the protest, usually through affidavit evidence and sometimes oral evidence, before ruling.

How protests are defeated. A protest succeeds or fails on evidence. Petitioners who prepare well usually show:

• a complete list of beneficiaries, with consents where obtainable;
• documentary proof of the estate's assets and their ownership;
• a distribution that follows the Act, or the deceased's wishes where there is a valid will; and
• answers to each specific allegation in the protest.

After confirmation. Once the grant is confirmed, the administrator extracts the certificate of confirmation. This is the document land registries, banks and other institutions require before transferring assets to beneficiaries. The administrator must then complete distribution and account for the estate.

Takeaways. Disclose all beneficiaries from the start, because hidden heirs are the commonest cause of protests and later revocation applications. Keep the paperwork on every asset in order. After confirmation, move promptly to transmit assets, since delay invites fresh disputes.

When a Customer Sues Your Business for Defamation, and the Case Moves to the High Court

 Businesses deal with difficult customers every day. Occasionally a dispute over a sale, a repair or an unpaid bill escalates into a defamation claim. The customer alleges that something said about them by staff, on a notice board or online damaged their reputation. These cases can run for years, through the trial court and then the High Court.

What a claimant must prove. A claimant must show that the words were defamatory, that they referred to the claimant, and that they were published to at least one third party. Words spoken between the business and the customer alone are not "published".

Defences available to businesses.

• Truth (justification): if the statement is substantially true, the claim fails.
• Qualified privilege: statements made in good faith to someone with a legitimate interest in receiving them, such as a report to the police or an insurer, are protected unless made with malice.
• Honest opinion (fair comment): a genuine opinion on a matter of public interest, based on true facts.
• No publication or no identification: often the simplest point, and one that is frequently overlooked.

The appeal stage. After judgment in the Magistrates' Court, the dissatisfied party has thirty days under section 79G of the Civil Procedure Act to appeal to the High Court. The High Court may extend time, but only on good reasons. Parties also commonly apply for a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. The applicant must show substantial loss, apply without unreasonable delay and offer security. Many High Court battles are fought over these applications before the appeal itself is heard.

How we defend businesses. We test whether there was publication and identification at all. We marshal the evidence supporting truth or privilege. At the appeal stage, we hold the other side strictly to the timelines and to the conditions for extension or stay.

Takeaways. Train staff to handle disputes with customers privately and factually. Avoid naming customers on notices or social media. Keep records of what was said and to whom. If a claim arrives, take advice early, because defences depend heavily on evidence gathered at the start.

Your Contractor Took the Money and Walked Away: What Now?

 Small business owners regularly pay contractors to fit out a shop, salon, restaurant or office, only for the work to stall half-done. The deposit is spent, opening day keeps slipping, and the contractor stops answering calls. The law offers practical remedies, and the earlier they are used, the better.

The legal basis. A fit-out arrangement is a contract, whether written, sent by WhatsApp or agreed orally and backed by payments. A contractor who takes payment and fails to complete the agreed works within a reasonable time, or to the agreed standard, is in breach. The client may claim a refund of money paid for undone work, the extra cost of hiring someone else to finish, and losses that flow naturally from the delay.

Building your evidence. The strongest claims are built on records:

• the quotation, agreement or messages setting out the scope and price;
• receipts, bank transfers and M-Pesa statements showing payments;
• dated photographs and videos of the site at each stage;
• an independent assessment of the work done and the cost to complete; and
• messages in which the contractor promised to return or admitted delay.

The demand letter. A formal demand from an advocate sets out the breach and the sum due, and gives a deadline to pay or complete. Many disputes end here, because contractors realise the client is serious. The demand also matters later, since courts look at whether the defendant was given a fair chance before suit.

If the demand is ignored. Claims of up to KES 1 million can go to the Small Claims Court, which must decide within sixty days. Larger claims go to the Magistrates' Court. The court can award a refund, damages, interest and costs.

Takeaways. Before work starts, insist on a written scope, a timeline and payment in stages tied to progress. Never pay most of the price upfront. If work stalls, document everything immediately and seek advice early. A demand letter costs far less than months of a closed business.

"We've Refunded You, So Why Pay Costs?" Why Late Payment Doesn't Erase Legal Costs

 A familiar pattern: a consumer pays for a product or service, the supplier fails to deliver, a demand letter is ignored, and suit is filed. Only then does the supplier offer a refund, but it refuses to pay the costs the customer incurred to get there.

The general rule. Section 27 of the Civil Procedure Act gives courts discretion over costs. The settled principle is that costs follow the event: the successful party is ordinarily entitled to them unless there is good reason to order otherwise. A defendant who pays only after being sued has, in substance, conceded the claim.

Why costs matter. Without costs, a wronged customer ends up out of pocket for legal fees, filing fees and the time spent chasing a refund that was owed from the start. Courts recognise that a party should not be penalised for enforcing a right the other side ignored. Where a valid demand was ignored and suit became necessary, a later refund does not by itself justify denying costs.

How we handle a late refund.

• Accept the principal refund without prejudice to the claim for costs and interest.
• Show the timeline: the payment, the failed delivery, the demand letter, the silence, the suit, and only then the refund.
• Ask the court to enter judgment for costs, and interest where appropriate, or to record a settlement that includes them.
• Resist attempts to treat the refund as full and final settlement unless costs are agreed.

Lessons for consumers. Keep receipts, contracts and every message with the supplier. Send a clear written demand before suing, since it is strong evidence when costs are argued. Do not sign a "full and final settlement" note that is silent on costs.

Lessons for businesses. If a refund is owed, pay it when the demand letter arrives. Waiting for a lawsuit nearly always costs more than the refund itself.

Criminal Revision: Not a Second Appeal, and the Complainant Still Has a Voice

An accused person sometimes asks the High Court to "revise" a magistrate's decision before the trial has ended. For the complainant, often the person who reported the crime, this can feel like the case is being derailed. Understanding what revision is, and is not, helps victims protect their interests.

What revision is. Article 165(6) and (7) of the Constitution gives the High Court supervisory jurisdiction over subordinate courts. Sections 362 to 364 of the Criminal Procedure Code allow the High Court to call for a lower court's record. It checks whether any finding, sentence or order is correct, legal and proper, and whether the proceedings were regular.

What revision is not. Revision is not an appeal by another name. It is meant to correct clear errors of law, illegality or impropriety. It is not a vehicle to re-argue evidence, delay a trial, or obtain a ruling that should await the end of the case. Courts have repeatedly declined revision applications that are, in substance, appeals against interlocutory rulings.

The complainant's place. The prosecution is conducted by the State, but complainants are not spectators. Article 50(9) of the Constitution and the Victim Protection Act, 2014 recognise victims' rights to be informed and to have their views and concerns heard where their personal interests are affected. Through an advocate, a complainant may seek to be heard and place relevant material before the court.

How we approach opposing a revision.

• Show that the order complained of is lawful and within the trial court's discretion.

• Point out where the application is really an appeal in disguise, or an attempt to stall the trial.

• Highlight any related civil or succession proceedings the applicant may be using the criminal process to influence.

• Ask the court to return the file promptly so the trial continues.

Takeaways. If you are a complainant and the accused files a revision, do not assume the matter is out of your hands. Engage an advocate to watch brief and, where appropriate, be heard. Timely participation can prevent unnecessary delay and keep the trial on course.

When Family Members Disagree: Who Can Collect Rent from an Inherited Property?

 When a parent dies leaving a rented building, the rent keeps coming in. Who has the right to collect it is often contested. A common flashpoint is one family member acting alone, for example by instructing auctioneers to levy distress against a tenant.

The estate comes first. Under the Law of Succession Act, a deceased person's property is managed by the personal representatives appointed by the court. Until there is a grant, nobody is entitled to deal with estate property on their own account. A person who takes, collects or disposes of estate assets without authority may be intermeddling, which section 45 of the Act makes an offence.

Co-landlords must act together. Where several people jointly hold the landlord's interest, the general rule is that they act jointly. One co-owner cannot, without the others' authority, terminate the tenancy, change the rent or seize a tenant's goods for arrears. Distress for rent under the Distress for Rent Act is a powerful remedy. It must be levied by the person entitled to the rent, through a licensed auctioneer and in strict compliance with the law.

The tenant's position. A tenant caught between feuding landlords risks paying twice. Business tenants in controlled tenancies can seek protection from the Business Premises Rent Tribunal, which can restrain an unlawful distress and give directions on who should receive rent.

How we approach these disputes.

• Establish who holds the grant and the authority to act for the estate.
• Challenge any unilateral distress before the Tribunal and seek preservation of the rent.
• Push for a transparent arrangement, such as an estate account, so rent is not lost to infighting.
• Coordinate the tenancy dispute with the succession proceedings so the two forums do not issue conflicting orders.

Takeaways. If you inherit rental property with siblings, obtain a grant early and agree in writing how rent will be collected and accounted for. If you are a tenant, ask for proof of authority before paying anyone new. Rent collected outside the estate's control is a frequent cause of years of litigation.

Sued in the Small Claims Court? A Business Owner's Guide to Responding

 

The Small Claims Court is fast, and that speed cuts both ways. A business served with a claim has little time to respond, and a weak response can mean judgment within weeks.

What the court is. The Small Claims Court was set up under the Small Claims Court Act, 2016. It hears civil claims of up to KES 1 million, including disputes over contracts for goods and services, money owed, and compensation for personal injury or damage to property. Its procedure is simple, and it is required to decide matters within sixty days of filing.

Why respondents get caught out. Many businesses assume a small claim is not worth serious attention. Because hearings are quick, there is rarely a second chance to fix a poor response. Documents not filed early may never be considered.

How we approach a defence.

• Check jurisdiction first. Is the claim within the monetary limit? Is it the type of dispute the court can hear? Was the right party sued? A claim filed in the wrong forum, or against the wrong entity, can be disposed of early.
• File a clear response on time. The response should answer each allegation and set out the business's version briefly, backed by documents.
• Gather the paper trail. Invoices, delivery notes, hire agreements, M-Pesa and bank records, emails and WhatsApp messages often decide these cases.
• Consider a counterclaim. If the claimant owes the business money, it may be raised in the same proceedings.
• Keep settlement open. The Act encourages amicable resolution, and a fair settlement can save time and reputation.

Takeaways for businesses. Treat every small claim as a real lawsuit. Keep your contracts and records organised, because in a sixty-day process the side with better documents usually wins. Get advice as soon as you are served, not on the eve of the hearing. Although parties may appear in person, an advocate can quickly spot jurisdictional and procedural points that end a weak claim early.

Tired of Marketing SMS You Never Asked For? Your Rights Under the Data Protection Act

 

Most Kenyans know the experience: you visit a shop, an event or an entertainment venue, hand over your phone number, and the promotional messages never stop. The Data Protection Act, 2019 gives you real tools to stop them, but using them in the right order matters.

Your rights. Section 26 of the Act sets out a data subject's rights. These include the right to be informed of how data is used, the right to object to processing, and the right to have false or misleading data corrected or deleted. Section 37 restricts the use of personal data for commercial purposes, including direct marketing, without the person's consent or a lawful basis. Section 40 provides for the rectification and erasure of personal data.

Start with the business itself. The Office of the Data Protection Commissioner expects a data subject to first exercise their rights directly with the data controller, the business sending the messages. In practice, that means a written request, kept on record, to:

• stop all marketing messages and withdraw any consent previously given;
• erase your personal data where there is no lawful basis to keep it; and
• disclose where your number was obtained and who it has been shared with.

Then the regulator. If the business ignores the request or keeps sending messages, a complaint to the Data Protection Commissioner is far stronger. You can show that you asked, that the business failed to comply, and the dates of messages sent after your request. A complaint lodged before this step may be declined or referred back.

Remedies. The Commissioner can investigate, issue enforcement notices and penalty notices, and order compensation to a person who has suffered damage from a breach of the Act.

How we assist. We prepare formal requests that leave the business no room for doubt, track the response period, and assemble the evidence for a complaint. We then pursue the matter before the Commissioner if needed.

Takeaways. Save screenshots of every unwanted message, with dates. Make your objection and erasure request in writing before complaining. Businesses should check that their marketing lists rest on genuine consent and offer an easy opt-out, since compliance is far cheaper than a penalty.

When the Landlord Cuts Off Water and Power: Rights of Business Tenants

 Some landlords who want a tenant out, or want higher rent, take a shortcut: they disconnect the water, switch off the electricity or block access. For a business, and especially an institution such as a school or clinic that serves the public, even a few days without utilities can be devastating. The law does not allow landlords to evict by pressure.

Controlled tenancies. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act protects tenants in "controlled tenancies". Broadly, these are business tenancies that are unwritten, or written for five years or less, or that allow termination within five years. A landlord who wants to end or change the terms of such a tenancy must serve a notice in the prescribed form. If the tenant objects, the Business Premises Rent Tribunal decides.

Self-help is unlawful. Cutting off utilities, changing locks or removing a tenant's property to force them out sidesteps that process. The Tribunal has power to investigate complaints and to make orders protecting tenants, including orders restoring services and restraining interference with quiet possession. Courts have consistently condemned such tactics.

Knowing who your landlord is. Many commercial buildings are owned or managed through companies, joint ventures or agents, and tenants sometimes do not know who actually holds the landlord's interest. The tenant may ask the Tribunal to direct disclosure, so that orders bind the right parties and rent is paid to the right person.

How we act for tenants.

• File a complaint with the Tribunal under certificate of urgency.
• Seek immediate orders to reconnect services and stop further interference.
• Seek disclosure of the true landlord and its authority.
• Protect the tenant's rent position, for example by depositing rent as the Tribunal directs, so the landlord cannot claim arrears as a pretext.

Takeaways. Keep your rent paid and your receipts safe. Document any disconnection immediately with photos, dates and messages. Do not retaliate by withholding rent without advice, and approach the Tribunal quickly, because urgent orders are available

Before You Sign: What Every Property Sale Agreement Should Cover

 

Many property disputes in our courts start with a sale agreement that was rushed, copied from the internet or never written down. A well-drafted agreement is the cheapest insurance a buyer or seller can buy.

The legal minimum. Under section 3(3) of the Law of Contract Act, a contract for the sale or other disposition of an interest in land must be in writing. It must be signed by all parties, and each signature must be attested by a witness who was present. An oral land deal, however sincere, is generally unenforceable.

Clauses that matter most.

• The parties and the property: full names, ID or registration numbers, and an exact description of the property as it appears on the title.
• Price and payment: the deposit, how the balance will be paid, and who holds money pending completion, often the advocates as stakeholders.
• Completion: the completion date, and what each party must deliver, such as the original title, signed transfer, consents, clearance certificates and keys.
• Conditions: any consents needed, such as Land Control Board consent for agricultural land or spousal consent for matrimonial property, and what happens if they are not obtained.
• Encumbrances: whether the property is charged to a bank, and how the charge will be discharged, usually through professional undertakings between advocates.
• Default: remedies if either side fails to complete, including completion notices, forfeiture of part of the deposit, refund terms and interest.
• Costs and taxes: who pays legal fees, stamp duty, valuation and registration fees.

The Law Society Conditions of Sale. Many agreements incorporate the Law Society of Kenya Conditions of Sale. These fill in gaps the parties did not expressly cover, but the specific terms should still be spelt out.

Involving all stakeholders. Where several people have an interest, such as co-owners, spouses or financiers, sharing drafts early avoids last-minute objections that derail completion.

Takeaways. Do not pay a deposit before the agreement is signed and searches are done. Never hand over money directly to a seller you have not verified. Have an advocate draft or review the agreement, because a few hours of careful drafting can save years of litigation.

Sued for Trying to Help: Getting a Wrongly Named Party Out of a Claim

A shop owner introduces a customer to a supplier, or offers to help two people resolve a disagreement over a purchase. The deal then goes wrong, and the disappointed buyer sues everyone they can think of, including the person who simply tried to help. Being named in a suit you have nothing to do with is stressful, but the law provides a way out.

Who can properly be sued. A claim must disclose a cause of action against each defendant or respondent. There must be facts which, if proved, would make that person legally liable. In a sale gone wrong, liability ordinarily lies with the party who sold the goods, received the money or made the promise. It does not lie with someone who merely introduced the parties or offered to mediate afterwards.

The mediator's position. Offering to help resolve a dispute does not make a person a party to the original transaction, nor a guarantor of its outcome. Treating peacemakers as defendants would discourage the informal dispute resolution the courts encourage.

How a wrongly named party responds.

• File a response on time. Even if the claim is baseless, failing to respond risks judgment by default.

• Apply to be struck out. Where the claim discloses no cause of action against them, the party can ask the court to strike out their name early, saving time and costs.

• Present the documents. Payment records showing who received the money, messages showing who made the deal, and evidence of the limited role the respondent played.

• Ask for costs. A party dragged into litigation without basis may seek costs against the claimant.

In the Small Claims Court. The Small Claims Court Act aims for quick, fair decisions, and the court can deal with the issue of a wrongly joined respondent early. Raising it at the first opportunity is important.

Takeaways. If you broker introductions or help resolve customer disputes, keep a record of your role and avoid handling money on behalf of either side. If you are sued anyway, do not ignore the papers. A prompt, focused response usually ends your involvement quickly.

"The Title Is in My Brother's Name, but the Property Is Ours": Family Property and Trusts

 

In many families, property is bought or developed together but registered in the name of one person. That might be the eldest sibling, the one who happened to be present at the land office, or the one trusted to hold it for everyone. Years later, relationships change, and the registered owner claims the property as solely theirs.

Registration is strong, but not everything. A registered proprietor's title is generally conclusive. But the Land Registration Act recognises that a title can be subject to trusts. Section 28 lists trusts, including customary trusts, among the overriding interests that bind registered land even if they are not noted on the register.

Kinds of trust the courts recognise.

• Resulting trust: where one person paid, wholly or partly, for property registered in another's name, the law may presume the registered owner holds it for the person who paid.
• Constructive trust: where it would be unconscionable for the registered owner to deny another's interest, for example after promising a share that the other relied on.
• Customary trust: particularly for ancestral or family land held by one member on behalf of the family.

Proving the claim. The burden lies on the person asserting the trust, and the evidence decides most cases. Useful proof includes payment records, family agreements and correspondence, evidence of who built, occupied and developed the property, and testimony from relatives or others who know the history.

The right court. Disputes over land are heard by the Environment and Land Court. Magistrates' courts also hear such disputes within their pecuniary limits, which keeps many family land cases closer to home and less costly.

Takeaways. If family members contribute to buying or developing property, record each person's share in a written agreement, or register the property jointly. If you already find yourself in this situation, collect every record of your contribution now and take advice before the property is sold or charged to a bank.

One Plot, Two Owners: Double Allocation by Local Authorities

 Across Kenya's growing towns, many people hold plots first allocated by the old municipal and town councils. When those councils were replaced by county governments, records were not always transferred cleanly. A common result is double allocation: the same plot allocated to two people, sometimes decades apart, each holding papers that look genuine.

Allotment letter vs title. An allotment letter is an offer to allocate land, usually subject to conditions such as paying stand premium and rates within a set time. Accepting the offer and meeting the conditions creates an interest that the courts will protect. A title, once issued, is generally conclusive proof of ownership. But section 26 of the Land Registration Act allows a title to be challenged where it was obtained by fraud or misrepresentation, or acquired illegally, unprocedurally or through a corrupt scheme.

How courts resolve competing claims. The Environment and Land Court, which has jurisdiction under Article 162(2)(b) of the Constitution, examines the root of each party's title. Key questions include:

• Who was allocated first, and did they meet the conditions of allotment?
• Was the plot available for allocation when the second allotment was made?
• Do the council minutes, receipts, survey plans and registry records support each claim?
• Did the later allottee know, or ought they to have known, of the earlier interest?

The county government's role. As successor to the former council, the county holds the records and is often a necessary party. Its officers' evidence on how the plot was handled can be decisive.

Patience and preparation. These cases are document-heavy and can take years, especially where the original records are incomplete. Success depends on assembling the full paper trail and witnesses who can explain it.

Takeaways. If you hold an allotment letter, pay all charges promptly, keep every receipt and follow through to a title. Before buying a plot, search county records and the land registry, and visit the site. If someone else claims your plot, seek advice early, before structures go up and positions harden.

You Owe the Money but Need Time: Settling a Debt Claim on Workable Terms

 

Not every defendant in a debt claim disputes the debt. Often a business owner accepts that money is owed but simply cannot pay it all at once. Burying the claim in a weak defence wastes money and goodwill. A negotiated, documented settlement is usually the smarter path.

Why engage rather than ignore. A defendant who ignores the demand or the suit risks a default judgment. That can bring interest, costs and execution against business assets or bank accounts with little warning. Engaging early, through an advocate, keeps control of the timetable in the debtor's hands.

What a good settlement covers.

• the agreed amount, including any reduction of interest or costs;
• a realistic instalment schedule matched to the business's cash flow;
• what happens if an instalment is missed, such as a default clause allowing judgment for the balance;
• whether the claimant will withdraw the suit, or record a consent judgment payable by instalments; and
• an undertaking that no execution will issue while payments are honoured.

Using the court's process. Settlements are often recorded in court as consent orders, which gives both sides certainty. Even after judgment, Order 21 Rule 12 of the Civil Procedure Rules allows the court, for sufficient reason, to order payment of a decree by instalments. That can provide breathing room where negotiation has failed.

Dealing with the other side's advocates. Settlement talks between advocates should be candid and without prejudice. Proposals should be backed by something credible, such as a first payment or evidence of expected income.

How we assist. We review the claim for any genuine dispute over the amount, then propose terms the client can actually meet. We record the settlement so the client is protected from sudden execution.

Takeaways. If you owe money, respond to demands promptly and propose a realistic plan. Only commit to instalments you can pay, since a missed payment often brings the whole balance due at once.

You've Won by Default. Now Get Paid: From Default Judgment to Execution

When a defendant is properly served but does not enter appearance or file a defence, the claimant may obtain judgment in default. It feels like the end of the case, but a judgment is only paper until it is enforced. What happens next decides whether the client actually recovers anything.

How default judgment works. Order 10 of the Civil Procedure Rules allows the court to enter judgment where a defendant fails to appear or defend within the prescribed time. This applies only if service is proved, usually through an affidavit of service. For liquidated claims of a fixed sum, judgment can be final. For other claims, the court may enter interlocutory judgment and then assess damages.

Step one: extract the decree. The decree is the formal document that embodies the judgment. Execution cannot begin without it. The claimant's advocate drafts it, shares it with the other side where required, and has it signed and sealed by the court.

Step two: choose the right mode of execution. Depending on the debtor's assets, the options include:

• attachment and sale of movable property through a licensed auctioneer;

• garnishee proceedings to seize money held by third parties, such as bank balances;

• attachment of immovable property; and

• a notice to show cause why the debtor should not be committed to civil jail, where there is evidence they can pay but refuse.

Expect a fight. Defendants who ignored the suit often reappear at execution and apply under Order 10 Rule 11 to set the judgment aside. Courts will consider whether service was proper, whether the defendant has a defence that raises triable issues, and the reason for the delay. Solid proof of service from the start is the best protection.

Takeaways. Keep careful records of how and when the defendant was served. After judgment, move quickly to extract the decree and enforce it, before assets are moved. Investigate the debtor's assets early so that execution targets something real.