Random Access Works!

Ah, remember your very first paycheck? Your very first job? First time being employed? It feels like it was just yesterday… getting my first bahasha… Your first real job is one that changes you for better, or for worse. It can show how much you are really capable of or how much more you have to learn, and how hard it can be to make a decent living — even in a country like ours!

Your first job tells you just as much about yourself as the first time you fell in love. Both relationships expose you to a new side of reality, both require you to put forward a true effort for the first time, and both almost always leave you a little bit bruised and a bit wiser.

 Being financially independent isn’t as fun as we all thought it would be. Other than work, there’s little time for anything else and then, our jobless friends are somehow too busy to free up their schedules to match ours.

 Tired is the new Red green and black. It seems like there’s no time to exercise — and if there were, you’d be too tired anyway. Eating healthy becomes super important since you no longer exercise as much though; eating healthy requires too much planning, so you don’t eat healthy.

 You don’t get paid extra for overtime. Coffee becomes your new lover — the only friend you really need.

 You spend more in taxes than you do in rent.

 Doubles aren’t so bad once you work yourself numb.

 Jobs have dress codes.

 You can’t afford new clothing because this is your first job.

 All pockets have an invisible hole that money falls out of as you walk down the street. You don’t have a hole in your wallet; money just disappears. Putting more money into your car than the car is worth makes you look stupid. And please please, just buy a good car instead of pimping your ride. Don’t spend money on things you don’t need because you won’t have money for the things that you actually need. Savings accounts are not for dummies. You will hate yourself for getting a new credit card.

 You can go to the bathroom 10 times during the workday without ever actually using the bathroom.

You’re not the smartest person in the room.

 A human can survive off microwaveable stuff, Amen.

You can spend half your day dicking around, get all your work done on time and still get paid your full salary.

 Most managers are clueless. They DON’T KNOW SHIT! Except Lawyers.

Lawyers know EVERYTHING!

It’s awesome having a hot coworker.  After you sleep with the said coworker, awesome turns to awkward. It’s very hard to avoid someone in the workplace.

 Social circles apparently aren’t only for high school and The University of Nairobi, Parklands/Mombasa Campus.

 Some people don’t grow out of bullying.

 That popular girl in campo doesn’t grow out of being that popular girl once she puts on a pant suit and starts working in an office.

 You should have enjoyed college more when you had the chance. At least us law school guys did!

 Partying like a rock star doesn’t go down well with a 9 to 5. Being late to work is a lot worse than being late to class.

The only happy people in the office are those who actually want to be there. If you don’t love your job then you either hate it or will hate it in the future. Working a dead end job will drive you crazy over time. You can’t force yourself to enjoy things you aren’t naturally inclined to enjoy. The more you work, the more you want to let off steam. Letting off steam is easier after a few pints. The more you drink, the more difficult it is to work and the more you’ll need another drink. One can actually work oneself into the ground.

The people you work with are just as important as where you work.

Your family will respect you more now when you are financially independent.

 Your broke friends won’t be shy to ask you to borrow money.

 Silence is the sweetest form of music.

 When you work full time, it’s difficult to find time to date.

It’s not always easy to separate your personal life from your professional one.

 Getting your thoughts to stop running takes practice and patience.

 You still have a while to go before you can retire

5. (2), (b)

It has been said of the Court of Appeal, unlike the High court, that it will generally want to hear Counsel argue  and demonstrate their case forcefully before them, so that they may understand where the litigation is coming from.The High Court will normally have no such time!

They will rely heavily on written submissions, apart the Appeal Court which will love to hear, as well as read counsels submissions.

Unfortunately, they do not directly ask counsel to argue this issue before them.

I do not agree that Notice of Motion Application cases, before the Court of Civil or Criminal Appeal, are appropriate for a final pronouncement on the issue of Jurisdiction and therefore, a summary nullification of the proceedings and decision of a Superior Court, below.

This is more importantly because, the Appeals Court does not have the benefit of full arguments by Counsel on such important legal issues.

On this, I am afraid I cannot say, with my elder brother who has gone before me, Nyamu JA (as he then was), that:

“…it is clear as day and that it is an uncontested fact, that no Appeal lies to the Court of Appeal when a Superior Court below engaged and endeavored in illegalities and ended up with a nullity…”.

WHILE the jurisdiction and powers of the High Court are original and unlimited, the jurisdiction and powers of the Appeal Court can only be exercised where there is an Appeal to it from the Superior Court below, or any other Tribunal as  provided for under statute.

Whatever may be the current position, there is no gainsaying that the jurisdiction and powers of the High Court are far wider and more extensive than those of the Court of Appeal.

In the JASBIR SINGH RAI Case, (Raiply Cases) the Court of Appeal fully went into all the provisions on jurisdiction and concluded that the jurisdiction and powers of the Court of Appeal can only be exercised when hearing an Appeal.

The High Court, on the other hand, has original jurisdiction to hear the meanest of claims in civil matters and to try even the simplest charges in criminal matters. The Court of Appeal would have no such jurisdiction and power to conduct a first instance trial.

It has been said time without number that in a 5 (2) (b) Application, what gives the Court of Appeal the jurisdiction to hear and determine the Motion is the filing of the Notice of Appeal.

As such, a 5 (2) (b)  is not an Appeal; it is a Notice on Motion seeking the preservation of the status quo pending the lodgment, hearing and determination of an Appeal, where the Court is entitled to give a preservative Order – where a Notice of Appeal has been lodged.

An applicant is properly before the Court when the Party has lodged a Notice of Appeal under Rule 74 of the Court of Appeal Rules.

At the stage of determining an application under Rule 5 (2) (b), there may or there may not, be actual Appeal.

Where there is no actual Appeal, already lodged, there nevertheless must be an intention to Appeal which is manifested by the lodging a Notice of Appeal – essentially, that the  Applicant is dissatisfied with the learned Judge’s order, it has filed a Notice of Appeal and it has written to the Registrar of the High Court asking for proceedings.

On its face therefore, the motion will appear to be proper and no one Respondent can be heard at the time of hearing the motion to have applied to the Court to strike out the Notice of Appeal on the basis that no Appeal lay on the Appeal Court.

On the converse, if there is no Notice of Appeal lodged, one cannot get an order under Rule 5 (2) (b) because, as I have already pointed out above, the jurisdiction of the Court of Appeal is limited to hearing Appeals from the High Court. If there is no Appeal or no intention to Appeal as manifested by the lodgment of the Notice of Appeal, the Court of Appeal would have no business to meddle in the decision of the High Court.

Accordingly, the hearing of the Motion under Rule 5 (2) (b) cannot constitute the hearing of the Appeal.

In fact, the Appeal may not even have been filed.

Due to this position, I feel that no conclusive findings can be made when hearing a Motion under  5 (2) (b).

I even feel further, that even if the Court were to find and hold that an applicant has not shown an arguable Appeal, such a finding cannot stop an Appellant or an intending Appellant from pressing on with their Appeal.

After all, it has been repeatedly said that an arguable Appeal is not constituted an Appeal that will or must succeed.

The late Nyarangi, JJ.A. sitting with Gicheru and Kwach, JJ.A, as they then were, put it thus in RUBEN & 9 OTHERS VS. NDERITO & ANOTHER, [1989] KLR 459:-

that 1. In dealing with applications under rule 5 (2) (b) of the Court of Appeal Rules, the Court of Appeal exercises original jurisdiction.

That 2. Once the Applicant is properly before the Court, the Court has jurisdiction to grant an injunction or make an order for stay on such terms as the Court may think just.

And that 3. This exercise does not constitute an appeal from the trial judge’s discretion, to the Court of Appeal.”

However, it is not automatic that once a Notice of Appeal is filed, the Court must give a preservative order. The Court has, over the years, developed certain well known guidelines on which it will grant or refuse to grant a preservative order.

The appeal or the intended Appeal must be one which is arguable, i.e. one which is not frivolous.

Again the party seeking the preservative order must show to the Court that if the order is not granted, and his Appeal or the intended Appeal were to succeed in the end, that success would have been rendered nugatory by the earlier refusal to grant the preservative order.

These propositions are now old hat, no authority need be cited for them.

The exercise of original jurisdiction discussed above must refer to the fact that, even where the Superior Court  below, has refused to grant an injunction or an order of stay, the Court of Appeal can still grant them as preservative orders, when awaiting to hear and determine the Appeal.

PERPETUAL SUCCESSION

Once a Trust is formed, the Trustees actions bind their successors in office and at all times all the trustees have perpetual succession.

WhatsApp

There was that off the shore morning crack from his plastering alarm clock by the side of his bed.

His eyes are already wide awake however, looking at the sky on top of his bedroom ceiling. This is some 30 minutes past the scene of the spectacular break of day. But he was used to it. He had never been the type of  guy who the alarm clock got him still sleeping.

He touched the clock gently and woke up.

Correct me if I’m wrong but these days, the first thing any man does when they wake up is that they check their phone, and therein, they check the letters they wrote or have been written for, on WhatsApp.

He then goes on to write..

This is probably the hardest thing I have for the past two years, ever had to write.

Thing is (for fear of seeming as if am making a big deal out of it, and please correct me where I am wrong), something that has been bothering me for the past two years now.

You see, Whatsapp is interesting. It was developed by a person just like me, or perhaps going through the same kind of thing that I am going through right now. Someone texted someone, and that other person never replied when the other one had a legitimate expectation to a reply. They were then given an answer which didn’t quite sound convincing. So I came up with this. WhatsApp. An application that uses a customized version of the open standard Extensible Messaging and Presence Protocol (XMPP). Other people can actually see when you come up online.

I texted you sometime yesterday at 8pm. All through the while to 10, you from time to time came up online, but I never got a response until I think 10. When I had slept. I want to be honest and vulnerable with you, so let me also say that I was sort of looking forward to talking with you, Diana.

Today, I texted round about 11. You texted me back almost immediately. I felt good about that..

But then, when I texted you back, you didn’t reply.. You came back online severally, at 11, at 12, at 1, at 2, at 3… Only for you to text me back at around that 3.. Where you told me you had or were having lunch with your father… Which is really understandable.. But I really dont know what to say cuz you still came back online and spent a considerable time over there. That is not very important.

So following through, and being ambitious as I am, I tried again to set a stage for a WhatsApp conversation.. Answered your question about what I thought about the flowers you got me for my 27th birthday and so on and so forth..

But then again, no response!

The thing about conversations they are normally, if not all the time started by Q&A. People fail to understand that but when you look at it, its what it is. And there is nothing that would ever allow one to know something better other than by asking a question. Even when we write Reports about DotAfrica, the Legal Aspects of Digital Migration and ICT, one always have to pose a research question. so any other way of looking at it only holds validity as a matter of argument . . .  not in terms of operational reality and substance.

. . . . lets get back to it.

All the while, you kept on coming online, at the same 3 when you asked the question and I answered, at 4, at 5, at 6 and just now, at 7..

Until I had to ask you to talk to me for you to reply.

It disturbs me.

Am pretty sure am not doing this “letter-writing” thing wrong. I actually think am pretty good at it.

I have an idea about what you not getting back to me may mean because I have done it before to a number of chics..  and please do correct me if I’m wrong. It means that you are not interested in what I have to say. You just don’t want to say it.

Thing is, with you, its different.. Or I just want to think that you wouldn’t think as such about me and mine.

sometimes I say that I am used to it but very carefully now, there are some things which no man ought to be used to. One of them and their things being taken for granted.

So to be honest with you, I don’t know what to think, or what to make of all of this.

these are those long, hard and thinking conversations and I am sorry I had to bring this up. I had to.

I am not in any sense bitter, or mad  and don’t by any means feel any pressure from this! I just want some perspective.

Whether I should text you? Perspective on whether I should be texting you??  Or when I do text you, should I just tell myself “you know what.. you can find out how she’s doing cuz you care about her…  just understand that you are not guaranteed a conversation out of it” …?

I want you to say to me what you feel, or what you think when I talk to you over the text… Whether you appreciate it, or whether you dont. Cuz when I text you, I don’t do it to exercise my fingers.

I want you to text me back that we have a conversation.

When you don’t, very carefully now, it usually feels unappreciated and taken for granted. and I’ve never wanted to know you to be such a person to me.

So Diana, should I text you?? Or when I do text you, should I just tell myself “you know what Chrys.. Find out how she’s doing cuz you care about her…  just understand that you are not guaranteed a conversation” …?

Let me tell you something.. I really really like you. In fact, I dont think that I’ve ever stopped loving you!

But that’s not the most important thing to me right now.

Sundays “that meal after breakfast and before lunch that lasted upto afterlunch-hours” is!

Having someone to talk with and who talks back with you in such a manner that you feel like they are speaking to your mind, your body and your soul… you know, those text message conversations that make you stop whatever your doing to reply, involving a series of descriptions – neither self evident or unconventional, those that can be shaped according to the perspective from which they are viewed.. these are those conversations that make you feel that everything you know about them leads you to believe that they share in your noblest values, your greatest hopes, your worst fears and your ambitious dreams, and that every part of  you sees a little bit of itself in them.

I really love talking with you.. Your funny, your witty, your flirty sometimes, your smart, your sensitive… You know so much that you teach me, you believe in so much as to motivate me and you have gone through so much as to inspire me, every time we have a conversation.

Don’t take that away from me..

Cuz I really really really like talking to you..

Truly, deeply and affectionately.

Me.