Interesting court battles in first quarter of year


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The first quarter of the year 2019 is over. Individuals, corporations and other enterprises may be considering how the year has started and what the needs herald for the rest of the year.

It is also necessary to consider the law in terms of the interesting and bizarre cases and occurrences in the legal sphere so far.

The first quarter may not have come with cases that will make a keen observer feel that the year has so far given many people a lot to ponder and some decisions have or will give many sleepless nights.

Examples in this case will involve the decision that the courts stand to make on whether the government push for Kenyans to register for the Huduma Namba as an all-purpose identification method will pass the constitutional test as far as the rights of citizens not to disclose their private information is concerned.

The other one is the case challenging the housing levy, which seeks to establish a fund from the contributions of all employed persons and their employers in Kenya to set up a housing scheme.

Not least will be the decision expected in the next few weeks whether a sitting deputy Chief Justice may be charged with a criminal offence before any steps are undertaken for removal from office through the complaints mechanism for judicial officers under the Judicial Service Commission.

The magnitude of these cases shows that judicial officers cannot afford to sleep on the job. But a judge in England did just that quite literally.

Mrs Justice Parker of the High Court in England momentarily dozed off during the hearing of a case, which resulted in the lawyers in that case complaining to the Judicial Conduct Investigations Office.

The judge had to be disciplined for this conduct, which it was held had undermined public confidence in the Judiciary. The Lord Chancellor considered the judge’s mitigation hat she had been asleep for a brief period and that she was remorseful for it.

While it is clear that judges, like everyone else, must not sleep on the job, another couple have brought a case because they are unable to sleep freely even at their home.

The reason for this is that the couple lives in an apartment in London in an area known as Tate Modern. The apartment is made of glass walls. Alexander Mc. Fayden sued the owner of the neighbouring property for breach of privacy.

He claimed that he and his family were more or less constantly under watch by persons visiting a nearby viewing gallery on the neighbouring property. He complained that people waved and made obscene gestures towards him and his family while they were in the glass-walled apartment. The judge declined to grant the request by Mr Mc. Fayden to have a part of the gallery closed to prevent the intrusion of their privacy.

The judge held that a simpler solution would be for the occupants of the apartment to use net curtains to block the unwanted viewers.

The judge held correctly that the traditional regard for the home as a zone of privacy needed to be tempered by the reality that living in a city and within such property required that an occupant be prepared to live quite cheek and jowl with neighbours.

But trouble with neighbours does not only take on intrusion of privacy.

A couple who were forced to flee the new house they had bought because of a violent and dangerous neighbour sued the seller of the property for fraudulent non-disclosure.

The couple claimed in the case that they were subjected to a violent outburst by the neighbour on the first weekend after moving into the property.

The police were called and advised the purchasers to move out of the property until it was safe to return.

They, therefore, brought a suit against the seller claiming that he failed to warn them about this dangerous neighbour and therefore made them purchase the property by fraud.

The case is set for hearing later in the year and the decision will have an important bearing on the duties of the seller of a property to the potential purchasers on risks associated with the property, including the demeanor and behaviour of neighbors.

Family law cases can be the most intriguing but may also have the most distressing stories within them.

First with the intrigue, a judge in France determined earlier this year that a couple who had named their child “Mbappe-Griezman” would not be permitted to register the child by that name. The couple must be distressed because they explained the name of that child on the basis of their love for football.

Antoine Griezman and Kylian Mbappe were two players of the 2018 World Cup-winning French football team. The two players scored goals in the win by France over Croatia in the finals. The parents out of national pride as French nationals thought that a combination of the last names of these stars would rub onto their child a stellar name.

The child registration authorities in France thought differently. They said that the names would be contrary to the interest of the child and ignored the rights of third parties to have their names protected.

Interestingly, the judge agreed and the couple had to give the child a different name. This decision literally challenges the rights of parents to name their children, besides challenging literary adage “what’s in a name?”

Still with the courts and their power to determine the best interests of a child. It is generally agreed that where there is a dispute between parents as to the custody of a child, the interest of the child is paramount.

In so doing the court will consider who between the parent will provide for the child the best possible environment for the emotional, material and intellectual growth.

Just about a week ago, some new thinking was brought to this when a judge ordered that an eight-year-old boy whose parents had separated, to be removed from his mother’s custody and care and be given to his dad.

The judge’s reason was that the boy would be exposed to significant emotional harm if left in his mother’s custody. This was after a psychologist testified that the mother consistently portrayed the father of the child in negative terms and the child had started to identify with the hateful expressions of the mother towards the father of the child.

After hearing the case at a London court, the judge held that the boy would be able to enjoy a positive relationship with both parents if he was in the custody of the father.

Lovers of Ferragamo products will know about the exquisite shoes that the firm is known for and the pleasure that comes with shopping for their products. The chairman of the Ferragamo footwear and house of fashion found himself in shopping of a kind he wouldn’t like.

Ferrucio Ferragamo found himself dragged for divorce proceedings in England. While the divorce proceedings were pending in Italy, Mr Ferragamo’s estranged wife with whom he had been living in Italy, brought another set of proceedings in England and sought to transfer the fight over the division of matrimonial property to the UK. The reason for this is easy to guess: English law provides more generous divorce settlements than Italy.

This selective bringing of a suit in a court and jurisdiction that a litigant believes will be more favourable is known as “forum shopping”. A judge in England suspended the shopping spree in the English case while the case in Italy progressed. Mrs. Ferragamo has appealed.

The court heard her appeal about one month ago and a judgment is expected on this in due course.

My reflection on the first quarter presents me with cases that are bizarre, judges who are astir and, in some cases, sleepy, litigants who are surprising, and judgments which are far-reaching and illuminating.

Mr Owino is head of legal at Nation Media Group


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