THE DIFFERENCE BETWEEN A PARTNERSHIP AND A LIMITED COMPANY

CYBLAW CONSULTING GROUP - OUR SERVICE PROFILE

Introduction

Cyblaw Consulting Group is a consultancy firm registered in Kenya, and a participating specialized consultancy partner in the Strategic Legal Solutions Group Limited (SLS Group) of Consultancies.

Areas of Law

It provides legal consultancy services in most areas of Information, Technology and Communications law and policy including general cyber laws, cyber crime, Intellectual Property (IP) as well as all aspects of electronic commerce.

We advice on compliance issues, undertaking dispute resolution involving internet users, undertaking legal research on developments on cyber law and delivering legal opinions as expert internet/cyber law consultants. The consultancy has experts in diverse areas of cyber/internet law, including ICT Law, IP laws, E-Commerce law, Forensic Law, etc.

Service Profile

We advice and undertake preparation of legal documents such as disclaimers, apposite terms of use, privacy policy, confidentiality agreements, software services agreements, domain name transfer agreements, copyright and trademark license and or assignment agreements, technology transfer agreements, , and drafting of legislation pertaining to regulation of use of internet. We also undertake provision of cyber/forensic fraud investigations, especially for financial institutions. Our IP practice advice and act for our clients in trademark, copyright and patents registrations, assignments, and enforcement of IP rights in the event of infringement.

Partnerships

The Group works in collaboration with Taxlex Consulting Group in delivering seamless advisories on cyber/internet taxation issues involving cross border transactions. The Group also works closely with all other consultancy firms in the SLS Group as and when necessary for delivery of sound legal advice on cyber law and related issues.

Our Clientele

We pride in continuously delivering top-notch consultancy services individual clients as well as corporates, and Governmental institutions.

Our Professional Staff

James WANYANDE - The Lead Partner

LL.M [Leeds]; Dip.Law [Ksl]; LL.B [Nrb], Advocate

Tel: +254 725 254 573

Email: jwanyande@cyblaw.com

Mr. WANYANDE is a practicing Advocate of the High Court of Kenya, with LLM in Cyber Law from the University of Leeds, England. He has routinely advised on cyber law and related issues and participated in various conferences on the subject. He is a seasoned commercial and corporate law practitioner, which experience has enabled him to deliver practical, efficient and cost effective advisories to our clients.

Joash DACHE – Lead Consultant

LL.M [Monash]; Leg. Draft [Lon]; Dip.Law [Ksl]; LL.B [Nrb], Advocate

Tel: +254 722 703 280

Email: jdache@cyblaw.com

Mr. DACHE is a practicing Advocate of the High Court of Kenya, with LLM in International and Comparative Law including Cyber Law from the Monash University, Australia. He was admitted to the bar in 1998 and has worked with the Government of Kenya for several years now, currently serving as the Secretary/Chief Legal Officer of the Kenya Law Reform Commission. He is a consultant with the Firm and has routinely consulted on cyber law and related issues. He has a wide experience in legislative drafting and formulation of government policy, twin experiences which continue to ensure our  delivery of seasoned cyber law consultancy services to our clients.

Teddy OKELLO – Senior Partner & CEO

Dip.Law [Ksl]; LL.B [Moi], Candidate for Admission to the Roll of Advocates

Tel: +254 773 865 798

Email: ceo@cyblaw.com

Mr. OKELLO is a practicing lawyer and a candicate for admission as an Advocate of the High Court of Kenya. He serves as the current CEO of the Firm, and has routinely advised and represented individual, corporate and governmental clients in commercial/corporate briefs, cyber law and related issues. He has experience in legislative drafting and policy formulation among other experiences in tax, environmental law, legal compliance and regulatory law, energy law and mergers and acquisitions. He is a seasoned commercial and corporate law practitioner, and the partner in charge of daily management of the Firm.

Our Contacts

Physical Location: Akilla III, Hse 61, South C, Off Ole Shapira Road, Nairobi, Kenya

Postal Address: P.O. Box 2530 – 00202, KNH, Nairobi.

Email Address: info@cyblaw.com

Tel: +254 715 310 677

Website: www.stralexgroup.cyblaw.com .

Please feel free to contact any our our partner by email or telephone for advisories or any matter on our aforementioned service areas.

THE JURISDICTION OF CID/POLICE TO INVESTIGATE A FINANCIAL INSTITUTION OVER THE MANNER IN WHICH A CLIENT'S ACCOUNT HAS BEEN OPERATED

Introduction

The Criminal Investigations Department (CID) is a department within the Kenya Police whose mandate is to investigate alleged crimes. This function is derived from the function of the Kenya Police as contained in the Police Act[1], namely: “……the prevention and detection of crime….., and the enforcement of all laws.”

Jurisdiction of the Cid to Purport to Investigate a Matter Currently Before a Court Of Law

By law, criminal investigation is the function of the Police and its various departments which functions may be exercised in the event of an alleged or suspected commission of an offense. The CID, being a department of the Kenya Police which by law is expressly empowered to undertake prevention and detection of crime (through investigation, etc) is therefore competent to commence criminal investigations against anyone.

That power however is not absolute, and must be exercised in view of the Constitution and other laws governing the just administration of justice such as the Criminal Procedure Code and the Civil Procedure Act and the rules made thereunder.

Further, in instances where a court of law has heard and determined a matter, certain principles of law are applicable to bar further debate on rights or liabilities of the respective parties. The main principles are:

1. Sub judice; and
2. Res judicata.

Sub Judice in Criminal Law

Matters are considered to be sub judice once legal proceedings become active. The Principle dictates that:

“NO COURT shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, WHERE SUCH SUIT OR PROCEEDING IS PENDING IN THE SAME OR ANY OTHER COURT having jurisdiction in Kenya to grant the relief claimed.”[2]

The rule is part of the law relating to contempt of court, and governs what public statements can be made about ongoing legal proceedings before, principally, the courts. It seeks to prevent the miscarriage of justice through communication of information which may prejudice the effective and fair administration of justice.

The rule restricts Courts and or Quasi-Judicial Tribunals from purporting to hear and determine a matter which is before another court of law of competent jurisdiction for determination of same issues. It however, does not prohibit the Police or CID from performing its statutory duty of investigation of alleged or suspected crimes.

Res Judicata in Criminal Law

Res judicata as a principle of law restricts Courts from purporting to “try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”[3]

As is the case with sub judice rule, the Police or CID are not barred from investigating any matter in which a offense has been alleged or an offence is suspected to have been committed, notwithstanding that the same has been heard and determined by a competent civil Court.

Obligation to Exercise Statutory Duty

In addendum, the CID and Police generally exercise statutory functions. These functions cannot be gagged by Civil Procedure Rules as long as a party confines to such actions within the law. It would be breach of statutory duty for the CID to refuse to investigate an alleged commission of an offense or suspicion of commission of an offense, and for which redress may be sought against the CID and Office of the Attorney General in judicial review (compelling the latter – through the former, to conduct an investigation).

CONCLUSION

In the foregoing, the CID has jurisdiction to investigate a financial institution in the manner in which transactions relating to a client’s account has been conducted. As such, the CID may lawfully make all enquiries and undertake such discoveries as it may require for the determining the allegation of or suspicion of commission of an offense in relation to the said account for purposes of commencement of a prosecution.

However, in the course of making enquiries and obtaining information from financial institution, the CID must not publish or cause to be published any such information in a manner even remotely likely to prejudice such financial institution’s position in the civil suits presently before the Courts of law.

We would therefore recommend that such financial institutions do comply with all requests for information in relation to the client account.

Nonetheless, the law precludes a person under investigation from giving evidence likely to incriminate him or her. This rule applies to corporate entities as well, and as such, a financial institution would be acting within the law should it refuse to disclose any matter which in its informed view is likely to incriminate it in any criminal proceeding.

We hope you find this advice informative. Should you require any advice on litigious or potentially litigious matters, please contact our Patrick ANAM at panam.stralexgroup@gmail.com. You may also reach him on +254 720 756 343 / +254 773 865 798.

For: Strategic Legal Solutions Group

Teddy OKELLO

MD & Group CEO

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[1] Section 14 of the Police Act, Chapter 84 of the Laws of Kenya.

[2] See Section 6 of the Civil Procedure Act, Cap 21 of the Laws of Kenya.

[3] See Section 7 of the Civil Procedure Act, Cap 21 of the Laws of Kenya.