LEGAL INSIGHTS WITH ABIGAEL MOKUA

In criminal cases, several common defenses can be raised to challenge criminal responsibility, as outlined in the Penal Code. These defenses aim to show that an accused person should not be held liable for an act or omission that would otherwise constitute an offense. Here are the common defenses: Ignorance of Law - Generally, ignorance of the law does not provide an excuse for an act or omission that constitutes an offense.  However, there's a rare exception: if the law creating the offense specifically says that you must know about that particular law for your action to be a crime, then not knowing it could be a defense.  Bona Fide Claim of Right - If someone takes or uses property believing they honestly have a right to it, and they don't intend to cheat anyone, they usually won't be held responsible for a property-related offense. It's about their genuine belief in their ownership or right to the property.  Lack of Intention or Accident-  A person is not criminal...

The best interests of the child are the guiding principle whenever decisions are made about a child’s welfare, care, or upbringing. This is firmly anchored in the Constitution of Kenya, 2010 under Article 53(2) , which provides that “a child’s best interests are of paramount importance in every matter concerning the child.” The Children Act, 2022 also reinforces this standard, making it the foundation of family law in Kenya. In this blog, I’ll be sharing the case of MTKO v JMR (Civil Appeal E064 of 2023) [2025] KEHC 3681 (KLR) (Family) to show how the courts interpret this principle and ensure that the best interests of the child remain at the center of their decisions.  FACTS OF THE CASE   The Appellant, MTKO, is the minor's maternal grandmother, residing in the United States of America. The Respondent, JMR, is the minor's biological father, of Grenadian Nationality. The child's biological mother, who was the Appellant's daughter and the Respondent's wife, pass...

In my last blog post, we looked at the basics of implied trusts and how courts can sometimes presume them based on the conduct of the parties. Today, we’re going deeper. Using the case of Peter Ndungu Njenga v Sophia Watiri Ndungu [2000] eKLR , I’ll show you why the standard for proving an implied trust is so high. In this case, the court made it clear that such a trust will only be presumed when there is strong, necessary, and convincing evidence, it’s not something they decide on lightly.  FACTS OF THE CASE   The appellant, Peter Ndung'u Njenga, is the husband of the respondent, Sophia Watiri Ndungu. Their marriage was celebrated in 1952 according to Kikuyu customs. On August 23, 1993, the appellant married Mary Wanjiru Njogu at the Registrar's office in Nairobi, where he was described as "married under customary law" . This second marriage appears to have initiated the legal proceedings. The case revolves around two parcels of land: NGONG/NGONG/3949 and KAJIADO/NG...

 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 ...