ADVOCATE MACHARIA WAITHAKA

Our practice in Bankruptcy and Debt is dedicated to providing strategic legal counsel to both debtors and creditors navigating financial distress. We offer comprehensive services that encompass the entire lifecycle of a debt-related issue, from proactive restructuring to formal insolvency proceedings.

For debtors, we provide a legal framework for a fresh start. We assist individuals and companies in assessing their financial position, advising on debt management strategies, and, when necessary, filing for bankruptcy. Our work in this area includes representing clients in court to obtain a stay of proceedings, which halts all collection activities, allowing for an orderly reorganization of debts.

For creditors, we act to protect and enforce their rights. This involves recovering outstanding debts, perfecting security interests, and litigating against debtors who have defaulted on their obligations. We pursue legal remedies such as winding-up petitions, which can lead to the liquidation of a debtor company's assets to satisfy creditor claims.

Our expertise spans complex legal concepts, including insolvency law, secured transactions, and asset recovery. We handle various matters, such as negotiating out-of-court settlements, drafting and enforcing repayment agreements, and representing clients in contested liquidation and bankruptcy petitions. Our goal is to secure the most favorable outcome for our clients, whether that means a successful financial reorganization for a debtor or the maximum possible recovery for a creditor

Our legal practice in Insurance Law provides comprehensive representation to both policyholders and insurers. We handle a wide range of matters, from policy interpretation and claims management to complex disputes and litigation.

Our Services for Policyholders

For individuals and businesses who have purchased insurance policies, we are their advocate. We help clients when they are faced with disputes or unfair claim denials by insurers. Our services include:

Policy Review and Interpretation: We analyze insurance policies to ensure our clients understand their coverage, including the fine print, exclusions, and conditions precedent to a claim. This helps prevent disputes before they even arise.

Claims Management: We guide clients through the entire claims process, from the initial reporting of an incident to submitting the required documentation. We ensure our clients comply with all policy conditions, such as the duty to disclose all material facts, to avoid future issues.

Dispute Resolution and Litigation: When an insurer denies a claim, underpays it, or delays payment, we represent our clients in negotiations, mediation, and, if necessary, in court. We litigate on behalf of clients in various matters, including motor vehicle accidents, property damage, personal injury, and life insurance claims. We are proficient in navigating the Insurance Act, Cap 487, and the dispute resolution mechanisms established by the Insurance Regulatory Authority (IRA).

Our Services for Insurers

We also provide legal support to insurance companies, helping them manage risk and resolve complex legal issues. Our services include:

Regulatory Compliance: We advise on compliance with the Insurance Act and other regulations to ensure the company's operations are legally sound.

Defense against Fraudulent Claims: We act on behalf of insurers to investigate and defend against suspicious or fraudulent claims, protecting them from financial loss.

Subrogation: We handle subrogation claims, a legal concept where an insurer, after paying out a claim to their policyholder, can step into the policyholder's shoes to pursue a third party who caused the loss and recover the funds paid out.

Litigation Defense: We represent insurers in court, defending them against lawsuits filed by policyholders or third parties. Our deep understanding of insurance law allows us to build strong defense strategies and protect our clients' interests.

Our Lawsuits and Disputes practice provides strategic legal counsel for clients facing litigation in Kenyan courts. We represent individuals and corporations in a diverse range of civil matters, from commercial disputes and land cases to constitutional petitions.

We have a profound understanding of the procedural edict in Kenya, which is primarily governed by the Civil Procedure Act, Cap 21, and the Civil Procedure Rules. These are the guiding principles that ensure the efficient, fair, and just administration of civil justice. Our proficiency in these rules allows us to navigate every stage of a lawsuit with precision.

Our services include:

Pleadings and Filings: We expertly draft and file all necessary court documents, such as plaints and defenses, ensuring they comply with the strict rules on content, form, and timelines.

Case Management: We actively participate in pre-trial conferences and case conferences to ensure the matter is ready for hearing, manage discovery, and facilitate the timely resolution of the dispute.

Trial Advocacy: We represent clients robustly in court, presenting compelling arguments and evidence to secure a favorable judgment.

Enforcement of Judgments: After a successful outcome, we assist clients in enforcing court decrees, utilizing legal tools like warrants of attachment and garnishee orders to recover damages or enforce court directives.

Our knowledge of the procedural edict is not just about following rules; it's about leveraging them to our clients' advantage, protecting their rights, and preventing their cases from being dismissed on technicalities. We ensure that our clients' legal journey is as smooth and predictable as possible within the framework of Kenyan law.

Our firm provides robust legal defense in criminal litigation, representing individuals and corporations accused of a wide range of offenses in Kenya. Our work is guided by the fundamental principle that every accused person is presumed innocent until proven guilty, as enshrined in Article 50(2) of the Constitution of Kenya.

We handle every stage of the criminal justice process, ensuring our clients' rights are protected from the moment of arrest through to a final verdict. Our services include:

Pre-Trial Representation: We advise clients on their constitutional rights, including the right to remain silent and the right to legal counsel immediately upon arrest. We make applications for bail or bond to secure our client's release from custody, arguing against compelling reasons for detention.

Trial Preparation: We conduct thorough investigations, gather evidence, interview witnesses, and meticulously review the prosecution's case to identify weaknesses or procedural errors. This includes scrutinizing police statements and ensuring all evidence was obtained legally.

Courtroom Advocacy: During trial, we provide assertive representation. We cross-examine prosecution witnesses, challenge the admissibility of evidence, and present a strong defense case by calling our own witnesses and making compelling legal arguments. Our deep understanding of the Criminal Procedure Code and the Evidence Act enables us to navigate complex procedural issues effectively.

Sentencing and Appeals: If a client is convicted, we prepare and present detailed mitigation pleas to the court, highlighting factors that may lead to a more lenient sentence. We also represent clients in appeals against conviction or sentencing in higher courts, seeking to overturn unjust outcomes.

Our Employment and Labour Relations practice area is dedicated to navigating the complex legal framework governing the relationship between employers and employees in Kenya. We provide legal counsel on all aspects of this relationship, from drafting employment contracts to resolving disputes at the Employment and Labour Relations Court (ELRC).

For Employers 👔

We help businesses maintain a legally compliant and harmonious workplace. Our services include:

Employment Contracts and Policies: We draft and review employment contracts, employee handbooks, and human resource policies to ensure they are compliant with the Employment Act, 2007. This helps prevent future disputes by clearly defining the terms of employment, including compensation, working hours, leave, and disciplinary procedures.

Disciplinary and Grievance Management: We advise on and manage disciplinary processes, ensuring they follow the principles of natural justice and fair procedure as required by law. This includes handling issues of misconduct, poor performance, and redundancy, minimizing the risk of wrongful dismissal claims.

Trade Unions and Collective Bargaining: We represent employers in their dealings with trade unions. This includes negotiating Collective Bargaining Agreements (CBAs) and representing them in disputes arising from industrial action, such as strikes and lockouts.

For Employees 💼

We champion the rights of employees who have been subjected to unfair labor practices. Our services include:

Wrongful and Unfair Termination: We represent employees who have been dismissed without just cause or due process. We help them file claims for remedies, including reinstatement, compensation for lost wages, and payment of terminal dues.

Discrimination and Harassment: We take on cases involving discrimination based on gender, race, disability, or other protected characteristics, as well as sexual harassment in the workplace. We pursue legal action to hold employers accountable and secure justice for our clients.

Recovery of Dues and Benefits: We assist employees in recovering unpaid wages, overtime, leave allowances, and other benefits owed to them by their employer.

Our practice in this area is deeply rooted in our understanding of the Constitution of Kenya, the Employment Act, 2007, and the Labour Relations Act, 2007, which form the cornerstone of all employment relationships. We are experts at both preventing and resolving disputes, whether through negotiation, mediation, or litigation at the ELRC.

Our Intellectual Property (IP) practice is focused on protecting and enforcing the intangible creations of the human mind. We provide comprehensive legal services to innovators, creators, and businesses, helping them secure their valuable intellectual assets.

Key Areas of Our Work

Trademarks: We help clients protect their brand identity. Our services include conducting trademark searches to ensure a mark is unique and not in conflict with existing registrations, and filing applications with the Kenya Industrial Property Institute (KIPI). We also handle opposition proceedings, where we challenge or defend the registration of a mark, and litigate against trademark infringement and "passing off," which is the misrepresentation of goods or services as those of another party.

Copyright: We protect original literary, musical, artistic, and dramatic works. While copyright protection is automatic upon creation, we assist clients with voluntary registration with the Kenya Copyright Board (KECOBO), which provides additional legal benefits and is strong evidence of ownership in case of a dispute. We enforce copyrights against unauthorized use, reproduction, or distribution of our clients' works.

Patents and Industrial Designs: For inventors and creators, we offer legal support in securing patents for novel, inventive, and industrially applicable inventions. We guide them through the complex process of filing a patent application with KIPI, which grants the inventor an exclusive right to the invention for a limited period. We also assist with the registration of industrial designs, which protect the aesthetic and ornamental aspects of a product.

Commercialization and Licensing: We assist clients in monetizing their IP assets. This includes drafting and negotiating licensing agreements that allow others to use the IP in exchange for royalties, and assignment agreements where the ownership of the IP is transferred. We also provide counsel on franchising agreements and other commercial arrangements that leverage intellectual property.

Our expertise is grounded in the Intellectual Property Act, the Trade Marks Act, and the Copyright Act, as well as relevant international treaties, ensuring that our clients' creations are protected both locally and internationally.