LEGAL INSIGHTS WITH ABIGAEL MOKUA

 A trust is when one person holds property, like land or money, for the benefit of someone else.  It’s not always a gift or transfer, sometimes the holder is simply safeguarding it. Trusts can be express, where the intention is clearly stated, or implied, where the court infers the intention from conduct or circumstances.  Implied trusts are tricky because no formal declaration exists. In this post, I’ll be explaining this using the case of Mark Kiprotich Sirma v Sosten Kiplagat Singoei [2018] eKLR where the court stressed it must be absolutely certain the parties intended such a trust. This high threshold ensures property rights are not altered without clear and convincing evidence.  FACTS OF THE CASE   PLAINTIFF'S CLAIM   The plaintiff, Mark Kiprotich Sirma , claimed to be the sole registered owner of land parcel Nandi/Kokwet/688, having purchased it from Jemaiyo Kogo (now deceased) in 1990. He obtained a title deed on August 5, 1994, vesting in him ...

 Termination of employment can be a serious issue, especially when it’s done unfairly. Kenyan law has clear rules that protect employees from being fired without following due process. In this post, I’ll use the case of Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Ltd [2013] eKLR to explain your rights as an employee during termination in Kenya. FACTS OF THE CASE   Anthony Mkala Chitavi (the Claimant) was first appointed as Chief Executive Officer by Malindi Water & Sewerage Company Ltd (the Respondent) on a three-year renewable contract effective June 28, 2006. His salary package included a basic salary of Kshs 70,800/-, house allowance of Kshs 30,000/-, and other allowances of Kshs 27,000/- per month.  On August 2, 2007, the Permanent Secretary, Ministry of Water and Irrigation, appointed him as Managing Director for Mombasa Municipality Water Supply (NWCPC) on a new three-year contract, commencing August 15, 2007 . This new role came with a signifi...

In Kenya, the law has come a long way in protecting the rights of children when it comes to issues of inheritance. One of the biggest questions in succession law has been whether children born outside of marriage have the same rights as those born within a marriage, particularly in religions that follow personal laws like Islam. In this post, I’ll be discussing the inheritance rights of children born out of wedlock, and how the law handles such situations. I’ll be basing this discussion on the recent Supreme Court decision in Fatuma Athman Abud Faraj v. Ruth Faith Mwawasi & Others (Petition No. E035 of 2023) , which was delivered on 30th June 2025.  FACTS OF THE CASE   The core of this dispute revolved around inheritance rights within a Muslim family.   Salim Juma Hakeem Kitendo, the deceased, was a Muslim man. He had an Islamic marriage with Fatuma Athman Abud Faraj, the appellant . They had four children together, and there was no dispute regarding these chil...

How matrimonial property is divided after divorce in Kenya has caused a lot of confusion, especially around whether it should always be a 50/50 split. In this blog post, I’ll use the Supreme Court case Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto & Another to explain how the law works and what really matters when courts decide who gets what.   FACTS OF THE CASE   The parties involved in this case are Joseph Ombogi Ogentoto (the Appellant) and Martha Bosibori Ogentoto (the Respondent). They first entered into a marriage under Abagusii customary law in 1990, and subsequently began living together as husband and wife. Their union was later formalized on August 30, 1995, under the Marriage Act Cap 150 (now repealed) at the Office of the Registrar of Marriages in Nairobi, where a marriage certificate was issued. They had two children.  They lived in their matrimonial home located on Land Reference No. Nairobi/Block 97/564 at Tassia Estate in Embakasi Nairob...

Last week, we talked about mediation and arbitration as part of our journey through Alternative Dispute Resolution (ADR). As I mentioned, this week we’re wrapping up the series with the final part, where I’ll be diving into negotiation , conciliation , and traditional dispute resolution mechanisms .  1. NEGOTIATION   Negotiation is an informal and voluntary way for two or more parties to solve a dispute by talking directly to each other. Since there’s no third party involved, it’s usually faster and more affordable. The main aim is for everyone to agree on a solution that works for both sides, through open discussion and compromise. Negotiation is applied in many areas of industry, from business transactions and workers strikes to court settlements and family disputes Its characteristics include being informal, voluntary, and centered around the parties involved. It allows two or more sides to resolve disputes through open dialogue without a judge or arbitrator. The pro...

In my last blog post on Alternative Dispute Resolution (ADR), I gave a general introduction and briefly mentioned the common types of ADR, like mediation, arbitration, negotiation, and conciliation. That post was more of an overview just to get us started. In today’s post, I want us to go a little deeper. I’ll be breaking down each type of ADR one by one, what it really means, how it works, its main features, and the kinds of situations where it’s most useful. This is a simple guide to help you understand the different ways people can resolve disputes without going to court. 1. MEDIATION   Mediation is a structured and voluntary process where a neutral third party, called a mediator , assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are encouraged to participate in the process actively. The mediator doesn't make decisions or take sides but creates a safe space for open, respectful ...