THE NATURE, PURPOSE AND KINDS OF LAW

THE NATURE OF LAW The term Law is used in a variety of senses. There are laws of physical sciences, laws of social sciences, moral laws and laws of state. Laws of physical sciences are those facts which have been proved correct and do not change over a period of time. These laws are permanent and universal e.g. law of motion, law of gravity etc. The laws of social sciences also establish the relationship between the cause and effect of certain facts but these laws are true under certain given conditions only e.g. laws of economics, laws of sociology etc. Moral laws are laws of human conduct as members of a society. The laws of state are those laws which are made or enforced by a state. It is the duty of the citizens of a country to obey these laws. If they disobey them they are punished e.g. theft is a crime and whoever breaks this law will be punished by the state.

For the purpose of our study, we are concerned with the laws of state only. The term Law used in this book means the law of state. Definition: There is no generally acceptable definition of the word Law. Different schools of law define it in different ways. Some important definitions of law are given below; 1. Woodrow Wilson has defined law in the words That portion of the established thought and habit which has gained distinct and formal recognition I the shape of uniform laws, backed by authority and power of government. 2. According to Holland, A law is a general rule of external human action enforced by a sovereign political authority. 3. In the words of Salmond, The law is the body of principles recognized and applied by the state in the administration of justice. 4. Law may also be defined in the words, A rule of human conduct, imposed upon and enforced among the members of a given state. From the above definitions, we may conclude that law refers to a set of rules or principles that govern the conduct of affairs in a given community at a given time, whereby machinery is provided for an aggrieved party to enforce his rights in case any of these rules or principle is broken We can note the following points from the above definition Set of rules

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Law is a set or body of rules. These rules may originate from customs, acts of parliament, court cases or some other acceptable sources.

Guidance of human conduct These rules are enforced for the guidance of human conduct. Human beings follow these rules for their own safeguard and betterment. Applicable to a community These rules apply to a specific community. This community may be sovereign state or a business community. The laws of different communities may be different e.g. what is law in Kenya may not be law in Uganda or Tanzania. Change of rules The law changes over a period of time. It means may not be the law in the 1990s Enforcement The law must be enforced otherwise there would be an anarchy. The law enforcing agencies include police and courts of law. LAW AND MORALTY The rules of law may be enforced by an action in courts. Morality on the other hand, does not attract the sanction of court for its enforcement, unless it also forms a part of the law. The rules of law are always defined by the law itself and can therefore be ascertained in a given circumstance without being confused with rules of morality. Rules of morality are defined by morality itself and vary from community to community but wherever they exist they do not as such attract the sanction of law; otherwise they would cease to be rules of morality and become rules of law. PURPOSE OF LAW The main purposes of law are 1. To regulate the conduct or behaviour of the persons 2. To provide justice to the members of the society 3. To maintain the political and economic stability 4. To protect the fundamental rights and freedom of the individuals 5. To establish the procedures and regulations regarding the dealings among the individuals 6. To maintain the peace and security in the country KINDS OF LAW OR CLASIFICATION OF LAW Law may be classified in different ways. The main kinds of law are;
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a. Public law and private law b. Civil law and criminal law c. Procedural law and substantive law d. International law

Public law and private law In any given state, it is the practice to draw a distinction between the law that governs the relations between the state and its citizens, on the other hand, and which governs the relations of the citizens amongst themselves, on the other. The former is known as the public law while the latter is called private law. Private law is that part of the law which is primarily concerned with the rights and duties of persons towards persons. Public law is that part of the law in which the state has an interest. Public law consists of constitutional law, administrative law and criminal law. Constitutional law consists of those rules which regulate the relationship between different organs of state. The organs of state are legislature, judiciary and executive. Administrative law relates to the actual functioning of the executives instruments of the government. Criminal law consists of wrongs committed against the state.

Civil law and criminal law Civil law (or private law) is that law which governs the relations of individuals amongst themselves, as opposed to the relations between the individual and the state. This includes the law of contract, the law of succession, the law of torts, the law of property etc. We can distinguish between criminal and civil wrongs as;
CRIME 1. It is a public wrong against the state 2. The parties are the Prosecution and the Accused. The prosecution represents the state while the accused is the offender who is being prosecuted 3. Since this is as public wrong, the action cannot be compromised by the parties. It is only in the exceptional circumstances that the public prosecutor may withdraw a prosecution against a particular accused. 4. The prosecution must prove its case against the accused beyond reasonable doubt. Any slight doubt must be resolved in favour of the accused. (NOTE: every CIVIL WRONG 1. It is a private wrong against an individual 2. The parties are the Plaintiff and the Defendant. The Plaintiff is the aggrieved party who is suing, while the defendant is the wrong doer who is being sued. 3. This being a private wrong, the parties are free to compromise any action brought by one of them and the plaintiff may at any time choose to withdraw his action against the defendant. 4. The Plaintiff needs only to prove his case on a balance of probabilities, not beyond reasonable doubt, i.e. the evidence must be such that it is more probable than not that this case merits success compared to Page | 3

person is presumed to be innocent until proven guilty). 5. Punishment is usually by imprisonment or fine, or the death penalty in the case of capital offences.

that of the defendant. 5. A defendant found to have committed a civil wrong is usually ordered to pay to the plaintiff damages (i.e. monetary compensation); or some other civil remedy may be granted to the plaintiff.

Procedural law and substantive law Procedural law consists of the rules which determine the manner in which the court proceedings are required to be conducted in civil and criminal cases. The law guides how a right is enforced under civil law or a crime is prosecuted under the criminal law. Substantive law consists of actual rules regarding the civil, criminal and other fields of law. Mainly, this law defines civil and criminal wrongs and provides remedies for each type of offence or civil wrong. International law International law may be further classified as Public international law and private international law. Public international law consists of those rules that regulate the relations between states. The law is based on treaties, conventions and rules of wars. The disputes between states can be set by the International Court of Justice. This court does not have any authority to enforce its judgements Private international law is mainly concerned with determining which national law governs a case in which there is foreign element. For example, a Kenyan signs a contract with a Ugandan in Uganda to construct one dam in Sudan and if there is a breach of contract and the Kenyan wants to sue the other party in Kenya, in this case, the Kenya court will decide which national law to apply. DIVISIONS OF CIVIL LAW Main divisions or branches of civil law are; Law of contract A contract is an agreement or a promise which is legally binding or enforceable by the law. The law of contract determines whether a promise is legally enforceable and what are its legal consequences. Law of torts Salmond has defined a tort in the words, A civil wrong for which the remedy is a common law action for unliquidated (i.e. unspecified or unascertained) damages and which is not exclusively the breach of trust or other merely equitable obligation. The examples of torts

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are; negligence, defamation, trespass and nuisance. The law of torts deals with various types of torts. Law of property Law of property deals with the nature and extent of the rights which people may enjoy over land and other property Law of succession Law of succession deals with the transfer of property on the death of a person to his heirs Law of trusts A trust is a relationship which arises whenever one person called the settlor transfers his property to another person called the trustee on the condition that the trustee holds the property for the benefit of another person called the beneficiary. Law of trust deals with the various aspects of trust and imposes a strict obligation on the trustee to administer the trust property in accordance with the conditions of the trust. THE SOURCES OF KENYA LAW Sources of law refers to the various the various factors which contribute to and determine the content of law and the organs through which laws are created. Every law must have a source. A source of law is that which may be pointed out as forming the basis of law i.e. what give it its force and validity. A source of law may be written or unwritten. Legislation (including the Constitution) is the best example of written law; while customary law may be cited as an example unwritten law. A source of law may determine whether the law is of local or foreign origin. Local laws in Kenya include enactments by our own parliament as well as the various customary laws observed in Kenya. Foreign laws applicable in Kenya include foreign enactments having the force of law in Kenya (e.g. certain English statutes) as well as certain rules of English common law and equity. The sources of law in Kenya have been contained in section 3 of the judicature Act (Cap 8). The sources of Kenya law are; 1. The constitution of Kenya and subsequent amendments to the Constitution 2. Acts of Kenya parliament 3. Specific Acts of the parliament of the United Kingdom cited in the part 1 of schedule to the judicature Act and the Law of contract Act (Cap 23). One Act of the Parliament of India. 4. Subsidiary (Delegated) Legislation. 5. English statutes of general application in force in England on 12th August 1897

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6. The procedure and practice observed by courts of justice in England on the 12th August 1897 7. The substance of the common law and doctrines of equity in force in England on the 12th August 1897 8. African customary law 9. Case law or judicial precedent 10. Islamic law

THE CONSTITUTIONOF KENYA Constitution law A constitution is a public document which regulates the relations between the state and its citizens as well as the relations between the organs of state. A constitution is said to be a written constitution when most of the fundamental principles and laws of the land are included in written form in a formal document e.g. Kenya constitution An unwritten constitution is that in which most of the fundamental principles and laws of the land are not given in written form in a formal document e.g. the constitution of United Kingdom is an unwritten constitution. The constitution of Kenya was originally enacted on 12th December, 1963. It was amended on 12th December, 1964 in order to establish a republic with a president as Head of State. However, this has since been superseded by the new constitution promulgated n August 2010. Section 47 of Kenya Constitution empowers parliament to make amendments by the votes of not less than 65% of all the members of the National Assembly. Such an amendment also requires the assent of the president. The Kenya constitution is quite long and consists of 128 sections. This constitution contains the following parts
Chapter I II III IV Contents The Republic of Kenya The Executive Parliament The Judicature Page | 6

Protection of fundamental Rights and Freedoms of the Individuals

VI VII VIII IX X XI

Citizenship Finance The Public Service Trust Land General Transitory

The constitution of Kenya is that source of law from which all other laws derive their validity. Thus any law that conflicts or is inconsistent with the constitution is void.

LEGISLATION Legislation is also very important source of law. It is second only to the constitution. Legislation refers to law which is made by a body specially constituted for that purpose. Legislation may be direct or indirect. Direct legislation is where the law making body is parliament. Parliament derives its law making powers directly from the constitution Indirect legislation is where an individual or a body other than parliament makes laws on the basis of powers derived from a statute e.g. bylaws made by local authorities Legislation in Kenya In Kenya, like other democratic countries, parliament is the supreme law-making body of the country. Section 46 of the Kenya constitution states that the legislative power of parliament is exercisable by bills passed by the national Assembly. A bill is a draft of a proposed Act of Parliament. When a bill has been passed by the national Assembly, then it is presented to the president for assent. Once the assent is given by the president then it becomes law and it is called as an Act of Parliament or Statute. Classification of Bills Bills may be classified as; Public Bills Private Bills Private Members Bills

Public bills deal with matters of public policy and their provisions affect the general public. These bills are introduced by the minister concerned.
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Private bills are those bills which are intended to affect or benefit some particular persons, association or corporate body. A Private Members bill is introduced by a private member of parliament. A private member who wishes to introduce a bill must move a motion requesting the permission of the House to do so. If the permission is granted then the member is at liberty to introduce the bill. The member is responsible for drafting his own bill. SUBSIDIARY OR DELEGATED LEGISLATION Parliament is not only in session. Moreover, it is not well equipped to handle all matters, especially those of a special or technical nature. Because of this, statute normally give Parliament power to delegate (i.e. to pass on) its law-making authority to its subordinates, usually a Minister, an official such as chief justice or a local authority such as Nairobi City Commission or council or public corporations such as Kenya Railways and so on.

Forms of Delegated Legislations They consist of Statutory instruments, Rules and Orders By-Laws

Statutory Instruments, rules and orders are normally made by Ministers in charge of Government Departments. These Rules and Orders must be submitted to parliament for approval. These rules and orders may be passed, modified or rescinded by the parliament. By-Laws are made by local authorities, railways and other public corporations or bodies. ByLaws require the approval of the concerned Minister before they are enforced. Need for Delegated Legislation The main reasons which result in the need for delegated legislation are given as under; 1. Parliament does not have enough time to deal with and analyses all national policy matters 2. The urgent matters requiring immediate attention cannot be debated in the parliament sometimes because parliament is not always in session. 3. There is flexibility in delegated legislation because if a ministerial order or rule proves impracticable then it can be revoked quickly. 4. Some technical issues can be handled more effectively by the experts. The concerned Minister who is assisted by the experts, can make more effective a nd practicable laws on the issues which are technical in their nature e.g. road-traffic matters, drug regulations etc.
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5. Future difficulties are better dealt with delegated legislation especially when new schemes e.g. service charges, are introduced. Criticism of Delegated Legislation Delegated legislation has been criticized on the following grounds:1. Sometimes, the ministers are given the powers to legislate on the matters of principle. Such matters must be dealt with by the parliament 2. In some cases, the powers are given to the Ministers to impose taxes e.g. local rates. The authority to impose taxes should remain in the hands of Parliament 3. The publicity of delegated legislation is inadequate so the individuals may not be aware about the rules and orders passed by the ministers 4. There is inadequate control of parliament on delegated legislation 5. The dele gated powers are so wide thus it creates uncertainty about the prevailing laws 6. The judicial control on delegated legislation is not adequate Control of Delegated Legislation There is a danger of the subordinate (or delegate) abusing the powers of legislation given to him by statute. In view of this danger, the law steps in to exercise some control. The dele gated legislation may be controlled by; a) Courts b) Parliament Courts The more effective way of controlling delegated legislation is by the application of the ultra doctrine. This doctrine is the means by which courts exercise control over subordinate bodies engaged in legislative, administrative or judicial functions. Anything declared ultra vires is of no legal consequence and ought therefore to be ignored. A piece of delegated legislation is ultra vires if it exceeds the powers contained in the enabling statute. Parliament Parliament itself may rescind (nullify or declare void) any piece of delegated legislation, or part of it. It may also require any piece of delegated legislation to be laid before it for review before it can be enforced. Upon review the delegated legislation may be passed, modified or rescinded. THE SUBSTANCE OF ENGLISH COMMON LAW AND DOCTRINES OF EQUITY COMMON LAW Common law is unwritten law. It has a distinctly English origin. From the earliest times, certain oral customs of the English came to be recognized as having general application in the whole of England. Over the years, principles of law were slowly evolved from these customs; and because
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they were of general application they yielded what came to be known as the common law of England. Common law as such, cuts across the whole spectrum of the legal system, with expectations here and there. It covers matters like contract, torts, property relations, status etc. but it does not recognize certain rights or obligations e.g. those arising under a trust. A number of common law rules have been codified by statute and these now form part of the written law of the land. EQUITY The word Equity as such literally means fairness or natural justice. Fairness and justice as opposed to the common law which as we have seen, was unfair in a number of respects and unjust in other respects Development of Equity It was in the face of the defects in the common law that the King stepped in. The King (and atre his Chancellor) heard appeals from common law courts. He was guided by the desire to be fair and to do justice, so where no remedy existed at common law new remedies were created (e.g. the trust came to be recognized and the beneficiary was thus given a remedy); where the existing remedy was insufficient. This was supplemented by new remedies (e.g. injunction, specific performance etc); and procedure in the courts was greatly simplified. Slowly, the kings court evolved rules to fill gaps whenever they existed in the common law. These came to be known as rules of equity and the new body of law thus evolved was called equity

AFRICAN CUSTOMARY LAW Section 3 (2) of the Kenya Judicature Act (Cap. 8) provides:the High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay. Customary law applies subject to the following limitations:1. It must be compatible with the written law; Thus as a source of law customary law is subordinate to legislation or written law, and in the event of conflict it must give way to the written law. 2. It only applies in civil cases or matters: Thus, customary criminal law is not a recognized source of law. 3. It must not be repugnant to natural justice, equity and good conscience. A custom can only be recognized as a source of law if it passes this repugnancy test. Thus, in Gwao bin Kilimo v, Kisunda (1938), E.A. (T), a custom that allowed a mans property to be
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attached in satisfaction of his sons debt was held not to have passed the repugnancy test and the custom therefore was inapplicable. 4. It only applies where it has not been excluded by the parties, whether by express contract or by the nature of the transaction in question. Section 2 of the Magistrates Courts Act (Cap. 10) states that the claim under customary law means a claim concerning any of the following matters under African customary law:(a) Land held under customary tenure (b) Marriage, divorce, maintenance or dowry (c) Seduction or pregnancy of an unmarried woman or girl (d) Enticement of or adultery with a married woman (e) Matters effecting status, and in particular the status of women, widows and children including guardianship, custody, adoption and legitimacy Before an African custom can be relied upon, there is need to prove that it actually exists. Kimani V. Gikanga (1965), E.A. and Angu v. Attah (Ghana) are some of the cases which state how customary law may be proved. This may be done by calling witnesses who are acquainted, with the custom in question, and after a particular custom has been frequently proved, the court may take judicial notice of it, and i.e. its existence will be taken for granted without any need for further proof. Besides, customary law may be proved under the Doctrine of Precedent, i.e by relying on earlier decisions in which the same custom was an issue and it, may also be proved by relying on a book (or document)of authority. CASE OR JUDICIAL PRECEDENT Case law is found in judicial decisions or judgements. It is law pronounced by the judges and this explains the common reference to judge made law. It is also known as judicial precedent. Case law is found in law reports, of which there are a number of uses these days. The main examples of law reports are East African Law Reports, Kenya Law Reports, etc ISLAMIC LAW Islamic law or Muslim law is a limited source of law in Kenya. It is applied by Kadhis courts only. Section 5 of the Kadhis Courts Act (Chap.11) states that Muslim law relating to personal status, marriage, divorce or inheritance applies if all the parties involved Profess the Muslim Religion.

THE LAW OF PERSONS

The Concept of Persons or Legal Personality: A person is defined as an entity or being which is recognized by the law as having certain defined rights and obligations. Such entity or being is said to be a legal person (or person in law). Legal persons are divided into two: natural persons and artificial persons.
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An entity which is recognized as being a person is said to have legal personality, i.e. it has attributes which are recognized by law as constituting a person. Examples include human beings (natural persons) and corporations (artificial Persons) CORPORATIONS A corporation may be defined as an association of persons binded together for some particular object, usually carry on of business with a view of profit. A corporation is an artificial person created by law with capital divided into transferable shares and with limited or unlimited liability possessing a common seal and perpetual succession. The corporation has a legal personality of its own distinct from that of its members. The individual members have rights and liabilities of their own apart from those of the corporation. The corporate body is different in that it has perpetual succession, it never dies and has a common seal by which to authenticate its acts. The members may change but the corporate body does not. The legal nature of corporations was finally established by Salomon V. Salomon & Company (1897). Salomon carried out a leather merchants business as a sole proprietor. After many years the business was converted into a limited company under the names of Salmon &Co. Ltd, with Salomon, his wife and five of their children as members. Altogether there were 20,007 shares. Salomon himself took 20,001 while the wife and the children took one share each on the remaining six shares. Salomon also took some debentures in the company in part payment for business transferred to the company. The company soon became insolvent. Salomon himself had his debentures repaid but nothing was left to pay unsecured creditors. The unsecured creditors argued that Salomons debentures should not take priority over their debts since Solomon and the company was one and the same thing. Rejecting this argument, the court held that Salomon and the company were separate and distinct from each other. The above case defined a corporation as an artificial person who is distinct from its members, with rights and obligations which are distinct from those of its members, which once formed, has perpetual success. (i.e. its existence is not affected by the death of some or all of its members as such it can own property or enter into contracts (including contracts with its members) in its own name. these are the attributes of a corporation which are inevitable consequence of incorporation. TYPES OF CORPORATION There are basically two types of corporation Corporation Sole Corporation Aggregate

1. Corporation Sole A corporation sole is one which consists of one human member at a time, such member being the holder of an office which is held in succession by one person at a time. Some corporations sole are a creature of the common law e.g. the office of a Bishop. Other corporation sole are created by constitution or any Act of Parliament e.g. the office of the president or the office of the Public Trustee.
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2. Corporation Aggregate Most corporations are corporations aggregate. These consist of two or more members at the same time. There are two types of corporation aggregate operating in Kenya. These are Statutory corporations Registered companies

CREATION OF CORPORATIONS A corporation can be created in the following two ways (a) By Acts of Parliament The corporations can be created by the Acts of Parliament in Kenya. The main examples of such corporations are: Kenya Railways, Kenya Airways, Kenya Meat Commission, Pyrethrum Board of Kenya, Coffee Board of Kenya and so on. Such corporations owe their legal existence to the statute. A statute creating the corporation gives it a name, stipulates its composition, and prescribes its powers and duties. The powers of these corporations are limited to those which are expressly conferred by the Acts. These can be also dissolved by statutes. (b) By Registration under Companies Act The registered companies are created by registration under the Companies Act. These are also known as Limited Companies. A limited company comes into existence by complying with the provisions of the companies Act (Cap. 486). A limited company may be either public or private limited company.

A private limited company can be registered by two or more persons but it is not allowed to call upon the public for funds in the form of shares or debentures. A public limited company can be registered by seven or more persons and it can offer its shares to the general public freely WINDING UP OF A COMPANY If a company is wound up, it discontinues its business. The winding up of a company brings the existence of a company to an end. The winding up of a company is either voluntary or compulsory. A voluntary winding up is initiated by the members of a company. In this case a liquidator is appointed to realize all the assets and discharge al the liabilities. A compulsory winding up takes place by the order of the court, usually on a petition or a creditor. In this case, the liquidator is appointed by the court. The liquidator disposes off the assets and discharges the liabilities of the company. THE ULTRA VIRES RULE The doctrine of Ultra Vires applies to the corporations. This term means beyond the powers. The powers f the corporations are limited. These powers are defined in the statutes in respect of
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statutory corporations, and in the Memorandum of Association in respect of registered companies. If these corporations exceed their respective powers, then any contract made beyond the powers laid down is the considered void. Ashbury Carriage & Iron Co. v. Riche (1875); the company was formed with the following objects (defined in the Memorandum of Association): to make, sell, or lend on hire railway carriages and wagons. The company, however, contracted to build a railway in Belgium held that the contact was ultra vires and void; the contract could not, therefore, be ratified by a meeting of shareholders. MEMORANDUM OF ASSOCIATION This is a legal document prepared by the promoters of a new company. The document states; (i) (ii) (iii) (iv) (v) The mane of the company with the word limited as the last word in the name The country and town in which the registered office is situated. The objectives of the company A statement that the liability of the members is limited The nominal authorized capital of the company

The purpose of the memorandum of association is thus to define the companies objectives, powers and serves as a guideline to the outside public. ARTICLES OF ASSOCIATION This is the second legal document prepared by the promoters of the corporation and sent to the registrar. The document states; (i) (ii) (iii) (iv) (v) (vi) (vii) Classes and rights of shareholders The issue and transfer of shares Methods of dealing with any alterations on the capital Procedures of general meetings, and voting rights Qualifications, duties and powers of Directors Borrowing, Dividend and reserve policies Auditing of the books etc.

Articles of Association serve as guidelines to the internal management of the company.

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PRIVATE LIMITED COMPANIES They have the following main characteristics (i) (ii) (iii) This may consist of a minimum of two members, but the maximum may not exceed fifty (exclusive of past and present employees who become members) A private company is not allowed to call upon the public for funds in the form of shares and debentures Any transfer of shares is restricted. It must be approved by the Board of Directors

PUBLIC LIMITED COMPANIES (i) (ii) (iii) A public company is one whose membership is not less than seven but no maximum limit is imposed Expansion can be achieved through sale of shares to the public. The restriction in private companies does not apply. Shares are freely transferable and thus more funds can be raised by sale of shares on the stock exchange.

PROSPECTUS The prospectus has been defined in Companies Act (Cap 486) as prospectus means any prospectus, notice, circular, advertisement or other invitation, offering to the public for subscription or purchase of any shares or debentures of a company. A public company is required to issue a prospectus in order to make an offer to the general public for the issue of shares. The prospectus contains the description of shares offered and other necessary details. TYPES OF SHARES The capital of a company is usually divided into a number of classes each quite different from the other. Ordinary shares These are shares held by owners of a company with no fixed rate of dividend. Preference shares These too, are held by the owners of the company, and form part of the company capital with fixed rate of dividend. Deferred shares These shares are issued to the founders or promoters of the company in view of their services in floating the company

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Debentures This is money borrowed by a company from the public as a way to maintain more funds for operation. Debentures are loan certificates, each representing a certain sum of money advanced or lent to the company UNINCORPORATED ASSOCIATIONS An unincorporated association is one which has no corporate status i.e. it has no legal personality and cannot therefore own property or enter into contracts or sue or be sued in its own name. Such associations include clubs, societies, trade unions, partnerships etc. The property owned by such associations is regarded as the joint property of all members although this property is held on the behalf of all members by trustees. Any contract entered into by a member on the behalf of the association is regarded as the contract of that member. When a wrongful act is committed (e.g. a tort) by a member then only the concerned member is responsible or liable. Brown v Lewis (1896), the committee of a football club authorized the repair of a football stand for use by the public. The repair was faultily performed and a member of the public was injured when the stand collapsed. It was held that the committee authorizing the repair was liable. PARTNERSHIPS Partnerships are unincorporated associations. In Kenya all partnerships are formed in accordance with Partnership Act (Cap. 29) section 3(1) of this Act defines partnership as the relation which subsists between persons carrying on a business in common with a view of profit. In a partnership business, two or more persons jointly run a business. The liability of the individual partner is unlimited unless the partnership agreement provides for any limitation. A partnership consists of not more than twenty persons except in certain cases e.g. practicing solicitors, professional accountants and members of the stock exchange. TRADE UNIONS A trade union is an association of labourers. It ha been defined by Prof. Web as a trade union is continuous association of wage earners for the purpose of maintaining and improving the conditions of their employment. Trade unions are also unincorporated associations. Al the trade unions in Kenya are established according to the provisions of Trade Union Act (Cap. 233). Although a trade union is an unincorporated association, it may sue or be sued and be prosecuted under its registered name. this give the trade union a form of corporate personality. It is done so as to facilitate any criminal and civil proceeding. Section 27 of the Act provides that: (1) A registered trade union may sue and be sued and be prosecuted under its registered name
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(2) An unregistered trade union may sue and be sued and be prosecuted under the name by which it has been operating or is generally known. Section 25 of the Act provides that every trade union shall be liable on any contract entered into by an agent acting on its behalf. However, they have separate legal entity of their own and cannot be treated as corporations. MINORS A minor is also known as an infant. He is a person who is below the age of majority. A person who has attained the age of majority is a major or an adult. The infants can sue or be sued in tort. The age of criminal responsibility is at the age of eighteen years. An infant is not eligible to vote until he ha attained the age of eighteen years and whose name appears on the register of voters (Section 43(1), Constitution of Kenya). An infant can own personal property. As regards the immovable property, an infants name can be entered in the register as the owner of the registered land (Section 113(1) of the Registered Land Act (Cap. 300). With exception of this right, an infant cannot own immovable property. Minority is a disability in the sense that there are certain things which a minor cannot do or be made liable for e.g. a minor cannot get driving license. LEGITIMATION A legitimate child is a child who is born within the wedlock (lawfully Married) mof the parents. On the other hand an illegitimate child is a child who is born outside wedlock. It is brought by the subsequent marriage of the parents of a child who was born illegitimate. Thus if A and B, being unmarried, beget a child C, C is an illegitimate child; but if A and B subsequently get married, C is said to be legitimated and he thereby becomes a legitimate child. ADOPTION Adoption is the process by which parental rights are transferred from natural parents of a child to other persons authorized by law. An infant can be adopted so that the relationship between the child and the adopter is similar to that of the parent and child. The adoption is governed in Kenya by the Adoption Act (Cap. 143). Section 3 of the Adoption Act provides that only an infant can be adopted. An infant is defined as a person under the age of eighteen years. Moreover, the infant must be a person who has never been married. GUARDIANSHIP An infants interests are normally protected by his parents. Where an infant has no parent there is need for a guardian to play this role. An infant whose interests are looked after by a guardian is known as a ward. The law relating to the guardianship and custody of infants is contained in the guardianship of Infants Act (Cap. 144) Section 3 of the Act provides that:

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(1) On the death of the father of an infant, the mother shall be guardian of the infant, either alone or jointly with any guardian appointed by the father. Where no guardian has been appointed, the court may appoint a guardian to act jointly with the mother. (2) On the death of the mother of an infant, the father shall be guardian of the infant, either alone or jointly with any guardian appointed by the mother. When no guardian has been appointed, the court may appoint a guardian to act jointly with the father. (3) Where an infant has no parent, no guardian of the person and no other person having parental rights with respect to it, the court, on the application of any person, may appoint the applicant to be the guardian of the infant The court may remove guardians, if it is deemed to be in the welfare of the infants. The court has the supervisory powers of control over a guardian. MENTALLY DISORDERED PERSONS A mentally disordered person is also known as a person of unsound mind. Like a minor, he lacks capacity to do certain things. The insanity affects the persons legal capacity in many ways. The law recognizes that such persons may be exploited or taken advantage of and that some measure of protection is required. The Mental Treatment Act (Cap. 248) provides some measures of protection, treatment, care of mentally disordered persons and the custody and the management of the property of such persons. A mentally disordered person is subject to certain disabilities. These are as under: (a) He does not have the right vote (b) A marriage contracted by any person of unsound mind is not valid (Matrimonial Causes Act Chapter 152, Section 14(1) (f)) (c) Insanity is a defense to a prosecution for any crime, although the accused must prove that he was insane at the time the crime the crime was committed. (d) The contracts of mentally disordered persons are voidable at the option of the mentally disordered persons. MARRIAGE Marriage is said to be a contractual relationship; it is viewed as a contract between a man and his wife. This relationship confers a status on the parties to it. The man gains the status of a husband and the woman that of a wife. It gives rise to certain rights and duties. The law of Kenya recognizes the following four systems of marriage (a) Statutory marriage (b) Customary marriage (c) Hindu marriage
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(d) Islamic marriage The law relating to statutory marriage and divorce has been contained in the following Acts: (a) The Marriage Act (Cap 150) (b) The Matrimonial Causes Act (Cap. 152) The parties to a statutory marriage must each have capacity to marry. The capacity is determined by their age, sex and marital status. Except in the case of a widower or widow, marriage age is generally 21 years. A person below this age can only contract a marriage with the consent of his father, or the mother in case the father is dead or of unsound mind or absent from Kenya. As regards sex, the parties to the marriage must be male and female. The persons of the same sex have no capacity to marry. Regarding marital status, each of the parties to the intended marriage must be single. Finally, a marriage is null and void if the parties to it are within the prohibited degrees of consanguinity or affinity. This means that the close relatives, such as brothers and sisters have no capacity to marry each other. The persons of unsound mind, i.e. lunatics and idiots, have no capacity to marry. A customary marriage is defined as a marriage celebrated according to the rites of an African community and one of the parties to which is a member of that community. The absence of a uniform law for the whole of Kenya makes it difficult to determine the rights and duties of the parties in marriage to the different forms of marriage celebrated in Kenya. The Married Womens Property Act (1870-1884) which are English statutes, has the general application in Kenya. Under these Acts, a married woman has the right to her own separate property. The husband and wife can also own property jointly. It is the duty of a husband to maintain his wife and children. If the husband neglects to do this, then his wife can obtain a maintenance order from a court. Every husband is entitled to his wifes consortium, i.e. he has a right of marital association with her. Consortium includes companionship, love, affection, comfort, mutual services and above all sexual intercourse; it also includes consortium et servitium, i.e. the husbands right to domestic services rendered by the wife. CITIZENSHIP OR NATIONALITY Nationality or citizenship refers to a persons political allegiance to some state in return for which he is afforded protection by the state. Each independent state has right to determine who are in nationals, or citizens. The law relating to citizenship or nationality of Kenya is contained in the constitution of Kenya and the Kenya Citizenship Act (Cap. 170) Acquisition of citizenship Citizenship of Kenya may be acquired in four different ways. These are By birth
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 (i)

By descent By registration By naturalization By birth Citizenship by birth is determined by the fact of being born in Kenya and also by the citizenship of a persons parents or grandparents. All persons born in Kenya who on 11th December, 1963 were either citizens of the United Kingdom or British protected persons automatically became Kenya citizens on the Independence Day (12th December 1963) if either of their parents had been born in Kenya.

(ii)

By Descent A person born outside Kenya after 11th December 1963 becomes a citizen of Kenya on the day of his birth if on that day his father is a Kenya citizen. This citizenship is by descent. But a person qualifies to be a citizen by descent only if at the same time of his birth his father was a citizen of Kenya other than a citizen by descent. It means the child of a person who became Kenya citizen by descent born outside Kenya do not acquire his countrys citizenship from him or his father.

(iii)

By registration Any woman who marries a citizen of Kenya may apply for registration and be granted Kenya citizenship. Similarly, a person of full age, who is a citizen of a commonwealth country or specified African country who has been ordinarily resident in Kenya for five years, may be registered as a Kenyan citizen upon making an application for this purpose.

(iv)

By naturalization Section 93 of the Kenya Constitution Act provides that an Alien may apply to be naturalized as a Kenyan citizen and he may be granted a certificate of naturalization if:(a) He is of full age (twenty one years) (b) He has resided in Kenya for one year before the application (c) He has resided in Kenya foe a total of four years during the seven years before the one year period in paragraph (b) (d) He is of good character (e) He has an adequate knowledge of the Swahili language and

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(f) He intends to remain a resident if naturalized The grant of citizenship by naturalization is purely discretionary Loss of citizenship There are two ways in which citizenship may be lost. (a) By Renunciation A citizen of Kenya who is also citizen of some other country, is free to renounce his Kenya citizenship but he may do so only if he is of full age and capacity. For renunciating citizenship, he is required to make a declaration in prescribed manner. He ceases to be a citizen of Kenya upon registration of the declaration. (b) By Deprivation The Kenya citizenship may be lost also by deprivation. But the deprivation only applies to those citizens who acquire Kenya citizenship by registration or naturalization. A person may be deprived citizenship in the following cases: Has shown himself to be disloyal or disaffected towards Kenya Has, during the war in which the country was engaged, traded with or otherwise assisted the enemy Has, within five years of registration or naturalization been sentenced to more than twelve months imprisonment Has resided continuously abroad for seven years and has neither been in the service of Kenya or an international organisation of which the country is a member, nor registered annually at a Kenya consulate his intension to retain the citizenship or Has obtained his registration or naturalization by fraud, false representation or concealment of a material fact.

DOMICILE AND RESIDENCE A persons domicile is the place where he permanently resides with an intention to remain. Mere residence is not sufficient. In order to establish the domicile of a person, the following two elements are taken into consideration: Actual residence Animus Manedi i.e the intention to remain in that place or country

Where these two elements co-exist, a person is said to have a domicile in that country. For example, a Ugandan citizen may decide to live permanently in Kenya. In this case, the Ugandan acquires the domicile in Kenya.
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Domicile and residence A place where a person lives, whether permanently or temporarily, is his residence. A persons residence determines his liability to taxation, i.e he is subject to the tax law of the place where he resides; it also determines his status in war time-a person who is resident in a country with which Kenya is engaged in war is automatically an enemy. Domicile and Nationality Domicile must be distinguished from nationality. While nationality is referred to a political system in the sense that a person owes his allegiance to the state of which he is a national, domicile on the other hand is referred to a legal system: a persons family relations in matters like marriage, divorce, legitimacy etc, and also his movable property are governed by the law of his domicile. Secondly, it is possible for a person to have no nationality at all, e.g. where he is rendered stateless upon being deprived of his only citizenship; but every person must have a domicile and no one can be without a domicile at any one time. Thirdly, it is possible for a person to have dual citizenship, i.e. to be a citizen of more than on state at the same time. But no one can have more than one domicile at the same time.

LAW OF AGENCY
SOURCES OF AGENCY LAW The law of Agency in Kenya is based on the rules of the common law which have been developed by the English courts. The decisions of English Courts are the primary reference material for Kenyan courts, and law teachers in Kenya, regarding the principles and rules which constitute the law of Agency. Definition of Agency There is no statutory definition of agency. However, agency can be described as the legal relationship that arises when a person, called agent, is appointed or entitled to represent another called the principal, in a transaction with some other person called third party. According to I Halisburys laws of England, 3rd edition, an agent primarily means a person employed for the purpose of placing the principal in contractual or other relations with a third party and is essential to an agency of this character that a third party should be in existence or contemplated.

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The agent acts in such a way that a contract is created between the principal and the third party who is usually a buyer or a seller. The law of Agency prescribes the legal rules for determining (a) How a person may become an agent (b) The rights and duties between the agent and the principal (c) The relations between the agent and the third party and (d) The manner in which the relationship between the agent and the principal may be brought to an end FORMATION OF AGENCY The relationship of principal and agent may arise in one of the following ways: express appointment, estoppel, ratification, necessity or presumption of law. 1. Express appointment This can be done in any way: orally, in writing or partly orally and partly in writing. A written appointment is desirable but not legally essential. The exception to this rule is when an agent is to be given authority to execute a deed on behalf of the principal. In such a case the agent must be appointed by a deed called power of attorney. Such a deed is usually required for transactions relating to sale or lease of land. 2. Estoppel Where a man is under a duty-that is, a legal duty- to disclose some fact to another and he does not do so, the other is entitled to assume the non-existence of the fact. In the context of the Law of Agency, a person who is under a legal duty to inform a third party that the person purporting to act for him as his agent is in fact not his agent but fails to do so may be estopped from saying that the apparent agent is not his agent, as in Spiro v Lintern An example of Agency by estoppel is the liability of a partner for the depts incurred by the firm after leaving the firm if the parties who knew him to be a partner dealt with the firm without being made aware that he left. In Greenwood v Martins Bank Ltd (1933) Lord Tomlin stated that to give rise to an estoppel the following factors must exist:(a) A representation or conduct amounting thereto intended to induce a course of conduct (b) An act or omission by the person to whom the presentation was made resulting from such representation, and (c) Detriment to such person as a consequence of his act or omission.

3. Ratification
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Ratification is the legal term which denotes the agency which arises if a person adopts a transaction which someone has concluded for him as his agent but without his express authority. The person who adopts the transaction becomes a principal as if he had initially authorized it, (i.e., the ratification is said to be retrospective); Bolton Partners v Lambert (86) Agency by ratification can only arise if: (a) The alleged principal was in existence at the time the contract was formed. (b) The contract to be ratified is lawful. For example, a company cannot ratify a contract which is beyond its memorandum of association. This is so because such a contract is regarded as Ultra vires and illegal. (c) The person whose act is to be ratified professed to be the agent of the person seeking to adopt the contract. (d) The alleged principal must have been made aware of all the material facts of the relevant transaction before he decided to adopt the contract. (e) The ratification must be of the whole contract. (f) The ratification must be made within the prescribed time or, if no time is prescribed, within a reasonable time.

4. Necessity/ Presumption law An agency of necessity may be either commercial or domestic. (i) Commercial Agency of Necessity

At common law, a person who is entrusted with perishable goods of another is entitled, in certain circumstances, to do certain things in relation to the goods as if he had been expressly authorized to do so by the owner. This will be so if; (a) An emergency arises and the goods are in danger of perishing or being destroyed completely unless the contemplated action is taken

Couturier v Hastie (63) The captain of the ship had to sell the corn which had become overheated while the ship was in transit. The corn would have been destroyed commercially useless if not sold immediately (b) It was impossible to communicate with the owner of the goods

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(c) It was actually necessary to do what was done and the action taken was prompted by a desire to prevent the owner of the goods from incurring financial loss as a consequence of an imminent perishing or deterioration of goods.

(ii)

Domestic Agency of Necessity

A married woman who has been constructively or actually deserted by her husband has authority at common law to take necessaries on credit for her personal use but as her husbands agent. The husband will have to pay for the goods as if he had expressly told her to take them on credit. She also has authority in equity to borrow money for the purchase of necessaries. Her husband will be ordered to repay the loan. However, she can only take necessaries on credit or borrow money for that purpose if she does not have adequate means of her own. DUTIES BETWEEN PRINCIPAL AND AGENT The duties of an agent to the principal are as follows 1. 2. 3. To exercise due diligence in the performance of his duties and to apply any special skill which he professes to have To render an account when required in those cases where the agency entails keeping of accounts by the agent. Not to become principal as against his employer or principal. In particular, an agent appointed to buy property must not sell his own property to the principal whereas an agent appointed to sell must not buy the property. Not to make secret profit. The phrase secret profit refers to any material or financial benefit accruing to the agency without the knowledge of the principal. If he does, the principal may; Recover the amount of the secret profit from him Refuse to pay him the agreed commission, or recover the commission if it had been paid Sue him and the third party for the damages suffered Repudiate the contract irrespective of whether of not the secret profit had any effect on the agent 5. 6. Not to delegate his authority, unless the delegation is in the ordinary way of business or is authorized by the principal Not to disclose any confidential information or document entrusted to him by the principal.

4.

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Duties of the principal 1. To repay the agreed commission when it becomes due, strictly in accordance with the terms of contract of agency. 2. To indemnify the agency by refunding him any out of pocket expenses personally incurred in the bonafied execution of his mandate, failing which the agent can sue him for it as happened in Great Northern railway v Swaffield (75) THE AUTHORITY OF AN AGENT The validity of an act done by a person who professed to be agent of another may at times be disputed. Such a dispute would have to be settled by reference to the agents authority or otherwise, to do the particular act. In the case of Freeman and Lockyear v Buckhurst Park Properties (Mangal) Ltd (1964) Lord Diplock stated: An.. authority is a legal relationship between the principal and agent created by a consensual agreement to which they alone are parties. Its scope is to be ascertained by applying ordinary principals of construction of contracts including any proper implication from the express words used, the usages of trade or the course of business between the parties. The decided cases show that an agents authority may be express, implied or apparent. (i) Express Authority

In Hely-Hutchinson v Brayhead Ltd (1968) Lord Diplock stated that an authority is express when it is given by express words, such as where a board of directors pass a resolution which authorizes two of their numbers to sign cheques. (ii) Implied Authority

In Hely-Hutchinson v Brayhead Ltd (1968) Lord Diplock stated that an Authority is implied when it is inferred from the conduct of the parties and circum stances of the case, such as where the board of directors appoints one of their numbers to be the managing director. They impliedly authorize him to do all such things as fall within the usual scope of that office. (iii) Apparent Authority

Apparent authority is the authority of the agent as it appears to others. It is also known as ostensible authority. RELATIONSHIP BETWEEN THE AGENT AND THE THIRD PARTY The legal effects of the agency depend on whether or not the agent acted for a disclosed principal. 1. If the agent informed the third party that he was an agent acting for a principal (whether named or unnamed) the general rule is that he drops out of the transaction as soon as his offer has been accepted or, conversely, he has accepted the third partys offer. He is not

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personally liable under the contract and cannot personally enforce it in the event of its breach. Only the principal can sue or be sued there under.

Exceptions An agent would be personally liable if: (a) He executed a contract under seal (b) He signs a bill of exchange in his name without indicating that he is acting as an agent (c) He contracts as an agent but is in fact the principal (d) If the custom of the particular trade makes him liable, as in the case of a de credere agent 2. If the agent acted for an undisclosed principal (i.e., a principal whose existence the third party was unaware of because the agent did not say that he was contracting an agent); (a) If the third party fails to perform the contract he may be sued by either the agent or the principal (but not both) (b) If the contract is breached by the principal the third party may: (i) (ii) Sue the principal Sue the agent. He cannot sue both and cannot abandon proceedings against one in order to sue the other.

DEL CREDERE AGENT A Del Credere Agent is defined by the Osbornes concise La w Dictionary as an agent for the sale of goods who, in consideration of a higher reward than is usually given, guarantees the due payment of the price of all goods sold by him. It therefore means that if the buyer does not pay the principal, the agent will have to do so. He is however not liable in the reverse situation since he is not he buyers agent. He is also not liable if the buyer does not accepts the goods since he does not guarantee that a buyer will accept delivery. STOCKBROKERS A stock broker is a member of the Nairobi Stock Exchange. His authority is defined by the rules of the exchange and he has implied authority to make a contract for his principal even if he was not aware of them. An agency relationship may come to an end by an act of the parties or by operation of the law. It may be brought to an end by the act of the parties in the following ways. (a) Agreement An agency relationship comes into being, generally speaking, through an agreement between the principal and the agent. It may therefore be terminated in the same way.
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(b) Breach A breach of the contract of agency may occur if the principal revokes the agents authority, or if the agent renounces the agency, in breach of the terms of contract. Once it happens, the other party would be entitled to sue for breach of contract.

TERMINATION BY OPERATION OF LAW An agency relationship will be terminated by operation of the law in the following circumstances; (a) Bankruptcy The bankruptcy of the principal will terminate the authority of an agent under the Bankruptcy Act (Cap 53). This is because the principal would henceforth lack contractual capacity. Bankruptcy of the agent will terminate a contract of agency only in those cases where it renders the agent unfit to perform his duties. (b) Frustration An agency may be terminated by frustration in some situations such as: (i) (ii) Where the agent was appointed to deal with a specific subject matter which is destroyed, such as a house which is destroyed by fire before the agent sells it Where the principal becomes an enemy

(c) Death of the Principal Death of the principal terminates the agency relations hip even if he agent is not aware of it. (d) Insanity of the Principal The insanity of the principal terminates the contract of agency even if the agent is not aware of it

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INTRODUCTION TO LAW OF TORTS

THE LAW OF TORT The word Tort is derived from the Latin tortus which means crooked or twisted. In French, tort means a wrong. In law, tort denotes certain civil wrongs. It means a tort is a civil wrong. Sir F. Pollock has defined tort as an act which causes harm to a determinate person, whether intentionally or not, not being a breach of a duty arising out of a personal relation or contract, and which is either contrary to law, or an omission of a specific legal duty, or a violation of an absolute right.
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Unliquidated damages are those whose quantum or assessment is left for the determination to a court at its discretion. These are distinct from liquidated damages which are fixed by the plaintiff. A person who commits a tort is called a Tortfeasor. Where two or more persons commit a tort, they are known as joint Tortfeasors. The may be sued jointly, or any one of them may be sued for the whole of the damage. In case of the joint Tortfeasors, there is a right of contribution, under which the court may apportion the damages between them in such a way as is just, having regard to their respective degrees of blame (Law Reform Act Cap 26, section 3) FUNCTION OF THE LAW OF TORTS The primary function of the law of tort is to compensate persons injured by the civil wrongs of others, by compelling the tortfeasor to pay for the damage occasioned by his tort. Other functions include 1. To determine rights between parties to a dispute. A party to a dispute may bring an action for a declaration of his rights; and once the court makes a declaration, the rights of the parties are determined. 2. To prevent a continuance or Repetition of harm. Where the injury complained of is of continuous nature or likely to be repeated by the tortfeasor, the injured party may be granted an injunction to prevent its continuance or repetition, e.g. in cases of trespass to land. 3. To protect certain rights recognized by law. There are certain rights which every individual is entitled to and which are recognized by law. These rights are protected by the law of tort for negligence which imposes a duty of care on every other person 4. To restore property to its rightful owner. Where property is wrongfully taken away from its rightful owner or otherwise dealt with contrary to his rights, he may seek a restitution of the property or its value since the wrongful act amounts to the tort of trespass to goods (or land). MALICE Malice means ill-will or desire to cause damage to someone. In legal sense, malice means a wrongful act which is done purposely without having a lawful excuse. In tort, the intention or motive for an action is generally irrelevant. The general rule is that a bad intention does not make a lawful action as unlawful and similarly and innocent and good intention is not a defense to a tort. Bradford Corporation v pickles (1895) P, with a view to inducing Bradford Corporation to buy his land at a high price, sank a shaft on his land which interfered with the water flowing in undefined channels into the corporation reservoir. The corporation applied for an injunction to retrain P from collecting the underground water. It was held that an injunction would not lie. P was entitled as owner to draw from his land the underground water. His malice, if any, in trying to force the purchase of land, was irrelevant. No use of property which would be legal if done with a proper motive can be illegal if done with an improper motive.
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Wilkinson v Downton (1897) A, as a practical joke, told Mrs. B that her husband had met with an accident. Mrs. B suffered a nervous shock and was ill as a result. Mrs. B brought an action against A for false and malicious representation. The fact that A passed the information as a joke was irrelevant, and Mrs. B was entitled to damages. Malice in itself is not a tort, but it can be an important element in certain torts. Main examples of such torts are: malicious prosecution, malicious falsehood, defamation, conspiracy and in certain cases, nuisance. INTRODUCTION TO TORT A tort is a civil wrong independent of contract for which the remedy is a common law action in unliquidated damages. Basic elements of tort 1. Legal right 2. Breach of such legal right 3. Legal injury Legal injury is the kind only recognized by law and it need not necessarily amount to actual physical loss or damage. It may not be visible to the ordinary eye hence only two can ascertain its existence. These are (a) Injuria sine damno It means legal injury without actual physical damage or loss. It arises in wrongs s uch as defamation, trespass, conversion, false imprisonment, unlawful confinement etc. Case: Ashby vs White Facts: The plaintiff who was a validly registered voter was denied a chance to vote by the defendant returning officer. Luckily for the plaintiff, his candidate still managed to win the election despite the rejected vote. The plaintiff went ahead and sued the returning officer. Held: that, even though the plaintiffs candidate had won the election, the plaintiffs right to vote had been infringed upon the claim succeeds. (b) Damnum sine Injuria It means actual physical damage or loss without infringement of a legal right. Claims in this category cannot succeed because the mere fact that a person has lost moneys worth or suffered a broken limb shall not per se be reasonable ground to sustain a claim. It is applied in the following instances: Lawful trade competition Case: Moghul Steamship vs Mc Gregor
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Facts: several small scale ship owners learned up to drive a rival competitor out of business by offering cheaper but quality services. The rivals lost many customers and sued. Held: That even though the rival had lost financially, this had been fair trade competition and simply the rivals unfortunate turn. The claim failed.

Lawful use of ones own property Case: Chasemore vs Richards Facts: the plaintiff who had been using underground percolating water for more than sixty years to run his mill was suddenly driven out of business by the defendant neighbor who decided to sink a well on his own land. The plaintiff sued Held: that, even though the defendants action affected the plaintiffs business, the defendant had simply made lawful use of his own land. The claim failed.

MOTIVE This is the main reason behind a persons action and it can only be achieved through the fulfilling of ones intention. Motive is either good motive or bad motive. Bad motive is legally known as malice which in the ordinally sense means hatred, spite or ill will. It is deliberately and consciously performing a wrongful act without excuse or with an improper reason e.g. polluting drinking water or throwing garbage into the neighbours pathway Malice and motive go hand in hand because malice can only be established through examination of a persons motive. However, the two are not torts but they are only relevant in establishing the existence of certain torts, especially those committed by minors or insane persons. These include defamation, trespass, unlawful confinement, nuisance, false imprisonment etc. It is important to note that the person may do something maliciously but he will not necessarily be held liable at law if what he did was within the law. Case: Bradford Corporation vs Pickles Facts: The defendant, who wanted to sell land to the plaintiff neighbour at a high price, deliberately sank a well on his part of the land so as to interrupt the flow of water to the plaintiffs land. The plaintiff desperately needed the water to supply to the inhabitants hence he had no other alternative than to purchase and control the defendants land. The plaintiff sued Held: even though the defendant had acted maliciously, he had all the right to intercept water from passing through his own land. The claim failed. Case: Wilkinson vs Downton Facts: the defendant joked with his friends wife by telling her that her husband had been involved in a tragic accident. Upon receiving this information, the lady suffered serious shock and was rushed to hospital where she was later pronounced dead. Her husband sued
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Held: even though the defendant was simply joking (i.e. no malice) he had performed an unlawful act and was therefore liable at law. NUISANCE This is defined as anything done to hurt or annoy another person in relation to his property. It is either public or private nuisance. (a) Public nuisance It is a n act or omission causing common injury, danger or annoyance to the public or people in general. It affects all persons generally and it is therefore subject to one criminal suit. It is prosecuted by the state as a criminal wrong. An individual cannot be allowed by law to institute such claim in private unless he proves the following; That there is a particular injury to him beyond the rest of the rest of the public suffering That the injury is direct and no consequential That the injury is substantial in nature

Case: Solteau vs De held Facts: the plaintiff resided next to a Roman Catholic Church which continued to ring loud bells every hour through the night. The plaintiff was so disturbed that he sued Held: in as much as this was public nuisance, the plaintiff had suffered more than the rest of the public. The claim succeeded. (b) Private nuisance

It is using or authorizing the use of ones property or things in control so as to affect the health comfort or convenience of others. It is a civil wrong. The right to commit private nuisance may be acquired legally by prescription as an easement or by statute for a defined period. The remedies for nuisance are abatement damages and injunction. CONVERSION This is a wrong against property. It is an act of willful interference, without lawful justification with any chattel in a manner inconsistent with the right of another such that the other is deprived of the use and possession of it A person who treats goods as if they were his when they are not is liable for conversion. The instances of conversion include; Conversion by taking: it arises where a person takes possession of anothers property and acts or intends to act on it in a manner inconsistent with the right of the owner.

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Conversion by sale: it arises where there is wrongful sale of anothers property. However, where the seller had no title but an innocent third party purchase the property, such third party may successfully plead innocence and acquire good title. Conversion by keeping: where a person has possession of anothers property and wrongfully refuses to deliver it to the owner. He becomes liable for conversion. Conversion by destruction: destruction of anothers property shall amount to conversion because it deprives the owner of such property its use and possession in its original form. This includes transforming the property into a different item e.g. using a persons milk to make tea or grinding his maize into flour. The general defenses of conversion are: Lien, stoppage in transit, distress, market overt, possession by innocent party Distinction between tort and other branches of law TORT Def. a civil wrong in dependent of a contract for which the remedy is a common law action in unliquidated damages Duty is imposed by law e.g. no one should act negligently Privity is not required The element of consents does not arise and where it exists, it automatically makes the wrong excusable Duty is owned to the world at large (inrem) Damages are always unliquidated because they cannot be precisely calculated. CONTRACT (Breach of contract) Def. an agreement between two or more persons which defines their legal rights and obligations and is legally enforced Duties are fixed by the parties themselves Privity must at least be implied Contract is founded upon consent

Limitation period starts from the moment damage occurs (when legal injury is sustained It is 3 years) Being civil in nature a wrong may amount to both tort and breach of contract e.g. exerts like accountants and lawyers will contract to perform required services (contract) and they will be liable for poor workmanship and unskillfulness (negligence under tort)

Duty is owned to a particular person or persons (in personam) Damages may be liquidated or unliquidated and in most cases, parties stipulates them in advance Limitation period start running from the moment breach occurs (it is six years)

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TORT Def. a civil wrong independent of a contract for which remedy is a common law action in unliquidated damages. It is misdemeanor (misbehavior) It is the infringement of private rights of individuals among themselves i.e. civil wrong. The aim of punishment is compensation and restitution The injured presents his claim as an individual Proof is on balance of probabilities Punishment is usually by financial compensation known as damages, rescission, specific performance etc.

CRIME It is a felony i.e a serious infringement of public rights It is the infringement of public rights and duties affecting the entire community i.e criminal wrong The aim of punishment is deterrence and retribution The injured will be represented by the state which will prosecute the case on his behalf Proof is beyond reasonable doubts Punishment is severe and includes capital punishment, strokes of the cane, imprisonment, etc.

An offence may amount to both tort and crime e.g. assault, defamation etc. in such situations, the wrong is known as a felonious tort A wrong may fall under the three branches of law. i.e. breach of contract, tort and crime. E.g. a taxi driver carries B and they are involved in a traffic road accident whereby B is injured. (i) Under crime B (through the state) will sue A for the traffic accident (crime) (ii) (iii) After the criminal case is over, B may sue A for the delay or for not having arrived at the promised destination as agreed in the contract (breach of contract) under tort B may sue A for negligence resulting into injuries and medical expenses (tort)

General defense in tort i.e. (justification of tort) 1. Inevitable accidents: - this is the type of accident which could not have been controlled by use of ordinally skill. It should not have occurred out of negligence or a deliberate and intellectual action. Vis major (An act of God): this is an unfortunate accident which is not connected with human effort e.g. draught, earthquakes, lightening etc. Necessity: this arises where a person attempts to rescue another by doing something which would otherwise have been tortuous e.g. where a person enters anothers house to save property from fire. Its basis is the maxim necessity knows no law

2. 3.

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4.

Statutory authority: the state may authorize persons to do that which would otherwise have been tortuous. Persons working under such instructions must ensure that they do not exceed their authority and they do not act negligently e.g. police officers may be authorized to break into a persons house or to stop a riot by use of reasonable force. Private defense: this is self help means. It is included in the fundamental rights and freedoms to allow a person to protect himself and his property against unlawful harm. This right extends to the death of an aggressor.

5.

Requisites 6. The force applied must be proportional to the threat The use of such force must be inevitable i.e there should not be a better alternative than to use such force. The force applied must end immediately the threat ends.

Mistakes: a mistake of law is no defense unless it is a mistake of foreign law or mistake of private treaty. Mistake of fact if reasonable shall be a good defense however a person whose intention is to commit a tort upon another cannot apply the defense of mistake if he ends up injuring the wrong person. He will nevertheless still be liable to the person he has now injured because this will simply be transmigration of malice. Disclaimers: these are also known as limitation, exclusion, exception, exemption clauses. They will be a good defense if fairly applied. Volenti-non-fit Injuria: this means he who voluntarily takes a risk cannot thereafter complain if it results into injury on him. It is based on the principle of assumption of risk and it protects persons working in lawful but dangerous sports e.g. bungy, diving, rugby, fencing etc.

7. 8.

Requisites The person injured must have known the risk involved in whatever he did He must have voluntarily accepted to take such a risk The act performed must have been that which is lawful

Case: Khimji vs tanga Mombasa Transport Company

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Facts: upon arriving at a swollen river the defendant driver refused to drive the bus across due to the obvious danger. A number of persons including the plaintiff forced the defendant to drive the bus across and it unfortunately plunged into the river. The plaintiff sued. Held: the claim failed because the plaintiff knew the risk and voluntarily accepted to take it.

NEGLIGENCE It is the breach of a legal duty to take care or harm caused by carelessness, not intellectual harm of the breach which results in damage, undesired by the defendant to the plaintiff. Element of Negligence In order to maintain an action, the plaintiff must prove the following: (i) (ii) (iii) There must be a legal duty of care owned by one party (defendant) to another (plaintiff) There must arise breach of such legal duty Such breach must result into legal injury to the plaintiff

Legal Duty of Care Everyone should (must) avoid acts which he can reasonably foresee to be very likely to injure another person. Person involved in certain disciplines must portray the care and skill expected of them in such professions i.e. professionals and skilled person have a higher duty of care than ordinary persons. Case: Donoghue vs Stevenson (the snail Ginger beer case) Facts: a person bought a bottle of ginger beer from a shop and gave his fiance. The manufacturer had bottled the content in opaque bottles hence the contents could not be seen. Most of the drink was consumed by the lady unaware that it contained decomposed remains of a snail. She fell ill and sued Held: the defendant was liable because he owed the legal duty of care to the plaintiff, and was in breach of that duty. Foresee Ability Test For the defendant to be liable, he ought to have reasonably foreseen that his action or omission could injure the plaintiff. Case: Bourhill vs Young

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Facts: a motor cyclist who was recklessly and negligently riding his bike, met with a tragic road accident and died. The plaintiff (a pregnant pedestrian) saw the accident occur, suffered a severe nervous shock and miscarried. She sued the defendant. Held: the defendant could not have reasonably foreseen that his act could injure the plaintiff. The plaintiffs claim was remote. Proof of Negligence Generally, the burden of proof in negligence is upon the plaintiff i.e. he must prove the three elements. In certain case, the circumstances of the accident tend to point an accusing finger at the defendant even before the plaintiff has attempted to prove it. In such a case the plaintiffs burden of proving negligence is relieved by the doctrine of res ipsa loquitur i.e. the thing/fact speaks for itself. This doctrine is implied where an accident which ought not to have occurred had the defendant not been negligent does occur i.e. had he been keen and alert he would have avoided the accident Illustration Where in good weather, good visibility and a smooth road, a car swerves into the bush or where a chair files through the window and hits the persons on the street. Such circumstances may make the plaintiff rely on the above doctrine. Requisites (i) (ii) (iii) The thing inflicting the injury must have been under the defendants control Circumstances must be such that the accident may have occurred without negligence There must be an explanation or evidence as to why the accident occurred

Contributory Negligence The conduct of the plaintiff may at times contribute to his injury. Where such occurs, he will recover damages less what he had personally contributed. However, this does not apply to infants. Under the Factories Act, an employer is supposed to supply his employees with protective measures against accidents that may occur on the premises. Where he fails to supply these facilities he will be in breach of the law. However, where he supplies them but the employee ignores, to use them, such employee bif injured will be liable for contributory negligence i.e. will be deemed to be the author of his own misfortune. STRICT LIABILITY This is a liability without fault. Many activities are so dangerous that they constitute constant danger to the public. With such activities, the law may do the following
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(i) (ii) (iii)

Prohibit the activities completely Allow them to be carried on for the sake of their social-economic importance but ensure that statutory provisions regarding their safety are respected Allow them to be carried on, on condition that whoever transacts in such activities will be wholly responsible for their consequences regardless of any fault on his part Point (iii) is the doctrine of strict liability.

This is an exception to the fault principle, meaning, where a person keeps on his premises any substance which is dangerous and which is not ordinarily supposed to be on such premises and moves on to a place outside such premises so as to cause injury to others. Note: it is immaterial whether the owner of such substance was negligent or not while taking care of it. This is the rule in Rylands vs Fletcher (1866) Requisites (i) There must be a non natural use of land by the defendant (i.e. An artificial accumulation of things not naturally found on such land e.g. water, oil, animals, poison plants etc.) There must be an actual escape on the thing kept by the defendant land to place outside such land. (if it escapes but remain on the defendants land, the rule will not apply and such will be governed by occupiers liability.

(ii)

Defenses (i) (ii) (iii) (iv) If it was the plaintiffs own fault e.g. under Volenti-non-fit injuri If it was a third partys fault If it was an act of God. (vis major) If it was artificial work for the common benefit of both parties

OCCUPIERS LIABILITY An occupier is the person in control of the premises. He could either be the owner or a tenant to whom the owner has transferred authority to take charge over such premises. Such transfer can involve the entire premises of the whole part. An occupier of the premises owes the duty of care to persons lawfully within and in the immediate precincts of the premises. The occupier is not liable for injuries caused to trespassers because such people do not have the consent of the occupier. The occupiers liability will be for injuries caused to the lawful users of his premises e.g. licenses, invitees, social guests etc.

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Principles governing occupiers liability (i) (ii) (iii) (iv) (v) (vi) Common duty of care: this is the duty to take reasonable care in all circumstances and to ensure that visitors will be reasonably safe when using the premises. Warning: the occupiers shall be discharged from liability if he gave sufficient warning concerning the prominent danger on his premises. Assumption risk: where a visitor willingly takes up arisk knowing the consequences thereof, the occupier will not be liable if he had safety measures in place. Contributory negligence: the occupiers liability will be diminished where the visitor is deemed to have contributed to his injury. Minors: the occupier has a higher duty of care to ensure the safety of all minors using his premises. This is so because minors cannot be guilty of contributory negligence. Independent contractors: the occupier will not be liable for the negligence of an independent contractor unless he was directly in control of such contractors work.

DEFAMATION It is the publication of a false statement for display regarding another person without lawful justification. It is an injury to the reputation of a person. Such may injure his office, profession or trade or lower his state in society. Defamation may be committed through speech or in writing. It is either libel or slander. Ingredients of defamation (i) (ii) (iii) (iv) The statement(display) complained of must be false It must be defamatory It must refer to the plaintiff It must have been published

(a) Falsity of statement It must be a statement which does not portray the truth. It is not for the plaintiff to prove that the statement was false, rather it is for the defendant to prove it was true. A defamatory statement is presumed to be false until proved to be true. If it is the truth, then it will not amount to defamation however hurting it may be.

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(b) Publication Defamation can only be actionable if it has been published. Publication means making the matter known to someone else other than the defamed person.

Illustration: if a letter containing defamatory statement is sent directly to the defamed person, it will not amount to defamation because the element of publication does not exist

Differences between Slander and Libel SLANDER (i) It is a civil wrong (ii) It is temporary and usually conveyed by speech or gestures (iii) The plaintiff must prove actual damage because the wrong is not long lasting (iv) It may be uttered in the heat of moment or under sudden provocation hence unintentional at times (v) Every republication of slander suggests that the publisher acted voluntarily hence he must certainly be guilty (vi) Under English law, the limitation period is two years. Under Kenya LIBEL (i) (ii) It is both civil and criminal It is permanent and usually seen by the eye e.g. writing, cinema, cartoon (pictorial) More serious that slander (long lasting) hence no actual damage need to be proved It shows greater deliberation and raises the presumption of existence of malice

(iii)

(iv)

(v)

The actual publisher may be an innocent person e.g. news reporter hence he may not necessarily be liable

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law it is one year (vi) Under English Law, the limitation is six years and under Kenya law it is one year.

Defenses (i) (ii) TRUTH: truth has always been the best defense. With defamation even substantial truth is sufficient to release the defendant from liability FAIR COMMENT OF MATTERS OF PUBLIC INTEREST: where there is honesty and relevance, a fair comment will discharge the defendant from liability. This arises where it is realized that the element of malice does not exist. PRIVILEGE: this is protection over acts of utterances made by certain classes of persons in their course of duty e.g. discussions between a lawyer and his client, doctor and his patient, banker and account holder etc. also included a parliamentary proceedings recorded in the Hansard APOLOGY: once the defendant makes an apology in the mode required, he shall be released from liability, if the plaintiff accepts such apology.

(iii)

(iv) Remedies (i) (ii)

Damages: this will depend on the nature of defamation, extent of publication and the status of the parties. Injunction: this will be issued to restrain further publication of the defamatory statement but the plaintiff must prove the anticipated damage.

TRESPASS It is the unlawful entry of a person non anothers premises without such others permission or authority. It is threefold (i) (ii) (iii) Trespass to land Trespass to persons Trespass to goods

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(i)

Trespass to land This consists of the entry upon another persons land and remaining on such land or placing objects on it without the owners permission

Remedies: (a) Damages (b) Ejection (use of reasonable force) because unreasonable force may result in assault (c) Action for recovery of the land (d) Injunction (e) Distress damage feasant arises where the owner of the land seizes and retains trespassing animals until compensates him

(ii)

Trespass to the person This may be committed intentionally or negligently. It can either be; (a) Assault: i.e. a threat to use force on the person of another e.g. brandishing a gun/weapon. Assault generally proceeds to battery. (b) Battery: this is actual physical force on the person of another. It must involve the element of touching such other person (c) False imprisonment: this is infliction of bodily restraint or confinement which is not authorized by law. (d) Impersonation/imposter: this is pretending to be the real person

(iii)

Trespass of goods This is where a person tampers with anothers goods without lawful course or permission. It involves the physical interference with the chattels (goods) of another person. Where a person commits this offence by tampering with anothers goods, then he continues to make use of such goods. That kind of trespass amount to conversion i.e. where he handles the goods in a manner inconsistent with the conduct of the plaintiff.

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ELEMENTS OF LAW
MARRIAGE As a component of Kenyas legal vocabulary, the word marriage is ambiguous and means different things to different people. This is so because a couple married under one law are sometimes declared not to have been married according to the legal criteria postulated in another branch of Kenya law. This rather unfortunate situation is consequence of the cultural, racial sectarian heterogeneity of Kenyas society. Marriage law is generally derived from a persons culture or religious beliefs and society such a s the Kenya society that has got people from different cultural groups (e.g. Catholicism, Protestantism, Islam, Hinduism etc) is unlikely to have a common marriage law at least during the early stages of nationhood. Definition For legal purposes, the most quoted definition of marriage is that of Lord Penzance in Hyde vs Hyde (1866) where he stated that marriage means the voluntary union for life of one man and one woman to the exclusion of all others. This is not a universal definition of marriage and in fact was expressly limited by Lord Penzance himself to marriages in what he called civilized Christendom nit is a definition of a monogamous marriage under the matrimonial law of England and those countries that have adopted the English Law and culture. In Kenya today, there are five recognized types of marriage namely: African Customary Marriage These are recognized under section 37 of the Marriage Act Cap 150. Islamic marriages These are recognized under the Mohammedan marriage divorce and Succession Act Cap 156. Hindu marriages
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These are conducted under the Hindu marriage and Divorce Act Cap 157 Customary marriages Christian marriages These are conducted under the marriage Act. Cap 150 or the African Christian marriage and Divorce Act Cap 151. These marriages are conducted in church under a n authorized minister in a licensed place NB: Cap 151 is exclusively for Christians, but Cap 150 is not exclusively for Christians. Civil marriages These are celebrated under the Marriage Act Cap 150, without necessarily involving a church minister. They may be conducted at the AGs office or other authorized government registry e.g. the DCs office.

AFRICAN CUSTOMARY MARRIAGE These are marriages under African customary law. In R.V Amkeyo, the High Court described these marriages as unions and refused to regard them as marriages because they do not confide to the Hyde v Hyde definition. Since they are not monogamous but are polygamous or potentially polygamous. Such unions are polygamous if a man is married to more than one woman at the same time. They are potentially polygamous if a man is married to another woman at any time. If a man exercises this right, the marriage becomes polygamous. In a monogamous marriage under English law, a man has no such right. ISLAMIC MARRIAGES Islamic marriages are marriages which are solemnized or celebrated in accordance with the rites of the Islamic Religion. They are given statutory recognition in Kenya by the Mohammedan marriages, Divorce and Succession Act which provides as follows: Mohammedan Marriages, whether contracted before or after commencement of this Act, shall be deemed to be valid marriages throughout Kenya and the parties thereto shall, subject to the provisions of this Act, be entitled to any relief by way of Divorce or otherwise which can be had, granted or obtained according to Mohammedan Laws, and such Law shall apply accordingly It should be noted that Islamic marriages are not solemnized or celebrated under the Act. They are solemnized as prescribed by the Holy Koran but the Act gives statutory effect to their validity under Islamic Law. The Act also empowers the High court to hear and determine all matrimonial causes and suits arising out of Mohammedan marriages at the request of either party to such marriages provided that the said party is resident in Kenya at the time of filing the petition.
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When exercising its jurisdiction under the Act, the high court must act and give relief upon the principles of Mohammedan law applicable but the onus of proof of the principles of Mohammedan Law shall be on the parties alleging the same. Islamic marriages may also be described as polygamous or potentially polygamous since a man is allowed by the Holy Koran to marry a maximum of four wives. It is however provided in section 5 and 6 of the Act that the person married under the marriage Act, African Customary Law or the Law of any Christian country who contracts a marriage under the Act without having first obtained a lawful divorce commits a criminal offense punishable by imprisonment for a term not exceeding five years. The purported marriage is also declared to be void except where the couple is already married under African Customary Law. The Mohammedan Marriage and Divorce Registration Act section 9 provides that parties to marriage or divorce recognized by Mohammedan law shall register such marriages or divorce with an assistant registrar within seven days from the celebration of such marriages or the pronouncement of such divorce, as the case may be.

HINDU MARRIAGE Hindu marriages in Kenya are regulated by the Hindu marriage and Divorce Act. The act alslo makes provision for divorce of couples married under it. The Act defines a Hindu as a person who is a Hindu by religion in any form (including a Virashaiva, a Lingayat and a follower of the Brahma, Prarthadna or Arya Samaj) or a person who is a Buddhist of Indian origin, a Jain or a Sikh by religion. Section 3 provides that a Hindu marriage may be solemnized under the Act if the following conditions are fulfilled: (i) (ii) (iii) (iv) (v) Neither party has a spouse living at the time of the marriage Both parties are of sound mind at the time of the marriage. The bridegroom has attained the age of eighteen years and the bride the age of sixteen years at the time of the marriage. Where the bride has not attained the age of eighteen, the consent of her guardian in marriage, if any, has been obtained for the marriage and The parties are not within the prohibited degrees of consanguinity, unless the custom governing each of the permits of a marriage between them.

Section 5 provides that a marriage may be solemnized in accordance with either the following rites or ceremonies

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(i)

SAPTAPADI, in which the bridegroom and the bride jointly take seven steps before the sacred fire. The marriage becomes complete and binding when the seventh step has been taken ANAND KARAJ, in which the bride groom and the bride go around the Granth Sahib. The marriage becomes completed and binding as soon as they complete the circuit

(ii)

CHRISTIAN MARRIAGES (a) African Christian Marriage and Divorce Act contains provisions for the marriage of Africans one or both of whom profess the Christian religion. Such marriages are monogamous and fall within the Hyde v Hyde definition.

Section 7 of the Act provides that the formalities preliminary to marriage which are established usual or customary for African Christians in the denomination to which one or both of the parties belong shall apply to marriages, under the Act.

Section 9 contains provisions under which couples married under customary law may convert their marriage into what the section calls a marriage by which they are legally bound to each other as man and wife so long as they both shall live.

During the conversion, the minister conducting the ceremony most warn the parties as follows: hereafter your marriage cannot be dissolved during your lifetime, except by a valid judgement of divorce and if either of you before the death of the other shall illegally contract another marriage while your marriage to each other remains undissolved, you will be thereby be guilty of bigamy, and liable to punishment for that offence.

It is provided in section 13(10) that any African woman married in accordance with provisions of the Act or of the marriage Act shall be deemed to have attained her majority on widowhood and shall not be bound to cohabit with the brother or any other male relative of her deceased husband or any other person. However, the widow shall have the same right to support for herself and her children of such marriage from such brother or other relative as she would have had if she had been married under customary law.

The effect of this provision is that an African widow is a Christian and cannot be forced by her husband clan to undergo what the Luos call Ter but she is nevertheless entitles to
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the support that would have been given by the latter if she had opted to ter. It should be acted that, the Act has not abolished ter but has merely made it optional.

A person married under the Act who seeks to enforce any conjugal right can only do so in a subordinate court of the first class, under section 14 of the Act. Any party aggrieved by a decision or order of the court has a right under section 15 to appeal to the High court.

In RE BOAZ HARRISON OGOLA (see probate and administration cause No, 149 of 1975) the High Court states that if an African man married under the African Christian Marriage and Divorce Act purports to marry another woman under customary law, the second marriage is not a valid marriage under customary law or any other law and the woman does not become the mans wife.

(b) Christian marriages under Cap 150 1. When parties decide to get married, they must give notice of their intention to the district registrar of marriage, three months before the date of the intended marriage. After the expiry of 21 days after the issue of the notice but before the expiry of 3 months, the District Registrar must issue a certificate authorizing the marriage to take place. The certificate is valid for three months. If the marriage does not take place during this period, a fresh notice will need to be issued. The parties must be male and female and not be c lose relatives. The marriage itself must be celebrated in a licensed place of worship by a recognized church minister, recognized by the AG to celebrate marriages The marriage must take place in an open place, during daytime i.e. between 8am and 6pm Before conducting a marriage ceremony, the minister must inquire if there is any lawful impediment why the parties should not be joined in marriage (words used are spelt out in the statute) After the parties are pronounced man and wife, they are required to sign a certificate, the original of which they should retain and the counterfoil is sent to the District Registrar for filing. Statutory marriage must be witnessed by at least two people who must also countersign the marriage certificate together with the officiating church minister (5 people must sign). It is conclusive evidence of
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2.

3.

4. 5.

6.

7.

marriage and remains in force until a degree of divorce is issued by a court of competent jurisdiction. CIVIL MARRIAGES Kenyans who do not desire or are not qualified to be married under African customary law, the African Christian marriage and Divorce Act, Islamic Law or Hindu Law may marry under the marriage Act which, though embodying the basic rules of an English marriage constitutes the general marriage law of Kenya. In civil marriage there is also a requirement for 5 people in all to sign the marriage certificate. Divorce Any party to a marriage own applies by petition to the court for divorce. Section 8 of the Matrimonial Causes Act Cap 152 provided that a divorce petition may be presented to the court either by the husband or wife on the ground that the respondent: a) Has since the celebration of the marriage committed adultery b) Has deserted the petitioner without cause for a 3 year period immediately preceding the presentation of the petition c) Has since the celebration of the marriage treated the petitioner with cruelty d) Is of unsound mind and has continuously been under care and treatment for atleast 5 years before the petition as presented. A wife can petition for divorce on the ground that her husband has been guilty of rape, sodomy or bestiality since the celebration of the marriage. Nullification of marriage Cap 152 allows other spouse to petition the Court for declaration that the marriage is null and void of any of the following: 1) That either party was permanently impotent or incapable of consummating the marriage 2) That the other party (i.e. the respondent) has willfully refused to consummate the marriage 3) That the parties are within the prohibited degrees of consanguinity of affinity 4) That the format husband or wife of either party was living at the time of the marriage and the previous marriage was still in force 5) That the consent of either party to the marriage was obtained by false or fraud 6) That either party was at the time of marriage of unsound mind or subject to recurrent fits of insanity or epilepsy

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7) That the other party was at the time of marriage suffering from a virulent S.T.D. (not acquired from petitioner) 8) That the other party was at the time of the marriage pregnant by some other than the petitioner (i.e. the complaining spouse) The last ground can only be relied upon if proceedings are brought within one year and if at the time of marriage, the petitioner was ignorant of the facts alleged.

NB: COHABITATION WITH THE INTENTION OF MARRIAGE The Kenya law recognizes the fact that many spouses do not adhere to or subscribe to any of the five stated forms of marriage but they have the intention to remain united as husband and wife In such a situation, the spouses will be deemed married if:1. They have been representing their relationship as that of husband and wife (especially to 3rd parties such as neighbour, shopkeeper etc.) 2. They have remained as above for a period not less than three years In Europe and U.S.A., spouses in such a relationship refer to each other as partners whereas in Kenya, the relationship is informally referred to as come we stay

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NEGOTIABLE INSTRUMENTS
Meaning of Negotiable instruments The word negotiable means transferable by delivery, and the word instrument means a written document by which right is created in favor of some person. Thus the term negotiable instrument literally means a written document transferable by delivery. A negotiable instrument can be called as chose in action. This means that such instrument confers certain rights, which are incapable of physical possession and which can only be enforced by legal action, not by physically taking possession of anything. For example, if a cheque is written in the name of a specific person, the cheque gives him the right to this sum of money itself in physical terms. Characteristics of Negotiable Instruments The main characteristics of negotiable instruments are:1. Easy negotiability They are transferable from one person to another without any formality 2. Transferee can sue in his own name without giving notice to the debtor: A bill, note or a cheque represents a debt, i.e., an actionable claim and implies the right of the creditor to recover something from his debtor. The creditor can either recover this amount himself or can transfer his right to another person. 3. Better title to a bonafied transferee for value: A bonafied transferee of a negotiable instrument for value (technically called as a holder in due course) gets the instrument free from all defects. He is not affected by any defect of title of the transferor or any prior party. 4. Presumptions:
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Certain presumptions apply to all negotiable instruments. These presumptions may be that every negotiable instrument; a) Was made, drawn or accepted for consideration b) Was made or drawn on a date appearing on the instrument c) Was transferred before its maturity date etc. Negotiable instruments The following instruments have been recognized as negotiable instruments by statute, usage or custom (i) (ii) (iii) (iv) (v) (vi) (vii) Bills of exchange Cheques Promissory notes Treasury bills Bearer Debentures Dividend Warrants Share Warrants

The following are not negotiable instruments: (i) (ii) (iii) (iv) (v) Money Orders Postal Orders Share Certificates Letters of Credit Fixed Deposit Receipts

The bills of exchange Act (Cap 27) recognizes the negotiable instruments to: (i) (ii) (iii) Bills of Exchange Cheques Promissory Notes

The discussion of these three negotiable instruments is the subject matter of this chapter

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BILLS OF EXCHANGE Definition: Section 3(1) of the Bills of Exchange Act defines the bills as: A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to or to the order of a specified person or to a bearer. Section 3(2) of the act states that any instrument which does not comply with these conditions, or which orders any act to be done in addition to the payment of money, is not a bill of exchange Parties to a bill of exchange There are three parties to a bill of exchange. These are Drawer: this is the person who makes the bill Drawee: this is the person who is directed to pay Payee: the person to whom the payment is to be made

The drawer or endorsee (if the bill is endorsed to the payee) is called the holder. The holder must present the bill to the drawee for his acceptance. When the drawee accepts the bill, by writing the words accepted and then signing, he is called the acceptor.

Essentials of a bill To be a valid bill of exchange, an instrument must comply with the following requirements: 1. It must contain an order to pay. A mere request to pay on account will not amount to an order 2. The order to pay must be unconditional. It means there must be no other condition attached to the payment. 3. It must be addressed by one person to another person 4. The drawer, drawee and payee must be certain 5. The sum payable must be certain

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6. It must be in writing and signed by the drawer 7. If it is not payable on demand then the time of payment must be fixed or determinable. A determinable event is one which is bound to happen but the time of happening may be uncertain e.g. the death of the drawers father Types of bills of Exchange Some important types are:(a) Order Bills An essential characteristic of an order bill is that it is negotiable by endorsement and delivery. A bill is said to be endorsed if it is signed on the back

(b) Bearer Bills A bill is payable to bearer which is expressed to be so payable. In this case, the payee is a fictitious or non existing person

(c) Non transferable bills A non transferable bill is one which contains words prohibiting transfer or indicating an intention that it should not be transferable

(d) Inland and foreign Bills An inland bill is one which is either drawn or payable within East Africa upon some person resident therein. Any other bill is a foreign bill. Foreign bills usually involve transactions of an international nature

(e) Accommodation bills An accommodation bill is one for which value has been received. Its purpose is to strengthen the credit of some other person so as to enable that other person to raise money or obtain credit facilities.

(f) Inchoate Instruments

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Section 20(1) of the Bills of Exchange Act provides that where a simple signature on a blanked stamped paper is delivered by the signer in order that it may be converted into a bill, it operates as a prima facie authority to fill it up as a complete bill for any amount the stamp will cover.

(g) Bill in a set Section 71(1) of the Act states that where a bill is drawn in a set, each part of the set being numbered, and containing a reference to the other parts, the whole of the parts constitute one bill. If a bill is drawn in set of three, it is known as drawing the bill in sets. Bills in sets are usually drawn when they are to be sent from one country to another. Advantages of Bills of Exchange 1. A bill of exchange is a double secured instrument. If the bill is dishonored by the acceptor, the holder of the payee may look to the drawer of the bill for payment. 2. In case of immediate need of money, a bill can be discounted with a bank by the payee 3. Two separate trade debts can be discharged by a bill of exchange. Hence, where A buys goods on credit from B for sh. 1,000 to be paid three months after date and B buys goods on credit from C on similar terms for similar amounts, an order by B to A to pay the sum of sh. 1,000 to C will discharge two separate trade debts Acceptance Under the Bills of Exchange Act (Cap 27), the presentment for acceptance is not necessary, but it is advisable to do so. A bill of exchange payable on demand or payable on the expiry of a certain period after date or payable on the date of happening of an event (which is certain to happen) needs to be presented for acceptance and it becomes due for payment even otherwise. The following bills must be presented for acceptance in order to charge the parties with liability (a) A bill payable at a specified period after sight. Such a bill must be presented to the drawee for sight or acceptance in order to fix the maturity of the bill (b) A bill in which there is an express stipulation that it shall be presented for acceptance before it is presented for payment (c) A bill which is payable elsewhere i.e. at place of residence or place of business of the drawee Types of acceptance Section 19 of the Act states that an acceptance on the bill may be either;
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i)

General Acceptance If the drawee accepts the order of the drawer to pay the sum specified in the bill in full, without any condition or qualification, the acceptance is said to be general, absolute or unqualified.

ii)

Qualified Acceptance When the drawee accepts the bill subject to some condition or qualification, thereby varying the terms as expressed in the bill, it is said to be qualified acceptance

To be valid, an acceptance must be written on the bill and signed by the drawee; but the mere signature of the drawee without additional words is sufficient. Regarding time, there is no restriction as to the time of acceptance. Capacity Capacity to incur liability as a part to a bill is governed by the same law which governs capacity to contract. The liability of a corporation on a bill is governed by the law for the time being in force relating to corporations section 22(1) where a bill is drawn or endorsed by an infant, minor, or corporation having no capacity to contract or power to incur liability on a bill, the drawing or endorsement entitles the holder to receive payment of the bill, and to enforce it against any other party there to section 22(2) Thus, the drawers or endorsers lack of capacity does not affect the holders right to payment; only that this right cannot be enforced against the drawer or endorser himself. It can only be enforced against another party to the bill e.g. a person who had previously endorsed the bill before it came into the hands of the holder. Signature A person is liable as drawer, endorser or acceptor of a bill only if he has signed it as such. Where a person signs a bill in a trade or assumed name, he is liable thereon as if he had signed it in his own name. The signature of the name of a firm is equivalent to the signature by the person so signing of the names of all persons liable as partners in that firm. (Section 23) A person signing an instrument under the bills of exchange Act need not necessarily sign it with his own hand. It is sufficient if his signature is written thereon by some other person by or under his authority, Section 92(1). Such signature by agent is called a procuration signature or signature by a procuration. A procuration signature is usually accompanied by the words per pro or simply pp. Case: Morison v Kemp 19(2)

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Facts: An employer authorized his clerk to draw cheques per pro the employer for the purposes of the employers business. The clerk, who was personally indebted to a bookmaker, drew such cheque in favour of the bookmaker to settle his personal dept. Held: The employer was not bound by the cheque and was entitled to recover the money from the bookmaker. Thus, if A draws a bill on B in favour of C and the bill is stolen by D who forges Cs signature on a transfer to E, the position is as follows; A, B and C are not liable to E and E has no right to enforce payment of the bill against any of them, or even to retain the bill. Cs forged signature is wholly inoperative and the transfer to E is accordingly void. On the contrary, C is entitled to recover from E the bill and its value. E has a remedy only against D, assuming that D can be traced. But if E can establish facts giving rise to an estoppel against C, e.g. where C has failed to take reasonable care to avoid the possibility of forgery, for instance, by keeping the bill under lock and key, then E may assent a right to retain the bill and to enforce payment thereof against C as well. It should be noted, however, that if the circumstances given above E subsequently negotiates the bill to F, the rights of F in relation to the bill will depend on whether or not he is a holder in due course. If he is, he will obtain a good and complete title to the bill section 38 (c) (i); and if he is not, he will be in exactly the same position as E for then the nemo that rule would apply to defeat his claim Delivery By delivery is meant the transfer of possession, actual or constructive, from one person to another section 2. The delivery of a bill is important because every contract on it whether it be the drawers, the acceptors, or an endorsers, is incomplete and revocable, until delivery of the instrument in order to give effect thereto, section 21 (1). Before a bill can be enforced, it must be proved that it has been delivered by or under the authority of the party against whom it is sought to be enforced. Thus, if A draws a bill in favour of B and the bill is later picked by F from As desk without As authority, B cannot enforce the bill against A and A may in fact revoke it. Consideration Like any other contract, a contract on a bill must be supported by valuable consideration. Such consideration may be constituted by any consideration sufficient to support a simple contract, section 27(1) However there are certain special rules which apply to bills of exchange. These are 1. Valuable consideration for a bill may be constituted by an antecedent debt or liability, and such a debt and liability, is deemed valuables consideration whether the bill is payable on demand or at a future time, section 27 (1) (b). 2. Where value has at any time been given for a bill the holder is deemed to be a holder for value as regards the acceptor and all parties to the bill who became parties prior to such time, section 27 (2)

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3. Every party whose signature appears on a bill is prima facie deemed to have become a party thereto for value section 30(1). By this provision, consideration for a bill is presumed until the contrary is proved. Since under section 27(2), consideration need not move from the promise, it is only logical that it should be presumed. Let us consider the following situation. A, draws a bill in favour of his nephew B, to be used by B as pocket money while at college. B transfers the bill to his girlfriend C, an endearing gesture of love. C transfers the bill to D in payment for lipstick supplied a month earlier and D transfers it to his son E, for pocket money. The legal position is as follows: 1. B cannot sue A on the bill. Although B is under section 30(1) deemed to have given value for the bill, A can prove that no such value was in fact given and that the bill was merely a gift to B. 2. For the same reason given above, C cannot sue B on the bill, nor can C sue A on precisely the same grounds. Moreover C is no longer the holder of the bill since it is now in Es possession, and therefore the provision of section 27(2) does not apply and even if this provision applied, A and B could still escape liability by proving that C has in fact given no value at all for the bill. 3. D may sue A, B and C. this is because D has furnished valuable consideration for the bill. Valuable consideration for a bill may be furnished by an antecedent debt or liability, as seen above, and therefore it makes no difference that Cs payment was in respect of lipstick supplied a month earlier. A incurs liabilities as drawer and B and C as endorsers, of the bill. 4. E cannot sue D for lack of consideration, and this can be proved by D. however, E may sue A, B, and C because under section 27(2) he deemed to be holder for value. A, B and C became parties to the bill prior to the time when D gave value for it. It is for A, B and C to rebut the presumption that E is a holder for value.

Holder of a Bill The Bills of Exchange Act defines a holder as the payee or endorsee of a bill or note who is in possession of it or the bearer thereof section 2. The question of who is the holder of a bill largely depends on the type of bill in question. In case of an order bill, it is the payee or endorsee in possession of the bill; while in the case of a bearer bill it is the bearer who by definition is the person in possession of a bill or note payable to bearer. Holder for value A holder for value is a payee or endorsee in possession of a bill, or the bearer of a bill, who has furnished valuable consideration for it. Holder in due course

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A holder in due course is defined by section 29 as a holder who has taken a bill, complete and regular on the face of it, under the following conditions namely; 1. That he became the holder of it before it was overdue and without notice that it had previously dishonored, if such was the fact 2. That he took the bill in good faith and for value, and at the time the bill was negotiated to him he had no notice of any defect in the title of the person who negotiated it Rights of the Holder Under section 38, the rights and powers of the holder of a bill are as follows 1. He may sue on the bill in his own name 2. Where he is a holder in due course, he holds the bill free from any defect of title of prior parties, as well as from mere personal defenses available to prior parties among themselves, and may enforce payment against all parties liable on the bill 3. Where his title is defective: a) If he negotiates the bills to a holder in due course, that holder obtains a good and complete title to the bill b) If he obtains payment on the bill, the person who pays him in due course gets a valid discharge for the bill.

General duties of the Holder The general duties of the holder are as follows: 1. Duty to Present Bill for Acceptance Where a bill is payable after sight, presentment for acceptance is necessary in order to fix maturity of the instrument.

2. Duty to present Bill for Payment A bill must be presented for payment, or else the drawer and the endorsers will be discharged. Discharge of a bill A bill is discharged in the following circumstances
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1. By payment in due course by or on behalf of the drawee or acceptor. payment in due course means payment made a t or after the maturity of the bill to the holder thereof in good faith and without notice that his title to the bill is defective, section 59(1). 2. When the acceptor is or becomes the holder of the bill at or after its maturity, in his own right, section 61. 3. When the holder at or after its maturity absolutely and unconditionally renounces his rights against the acceptor. The renunciation must be made in writing unless the bill is delivered up to the acceptor, section 62 4. Where it is intentionally cancelled by the holder or his agent and the cancellation is apparent there on section 63(1) CHEQUES Nature of a Cheque A cheque is defined as a bill of exchange drawn on banker payable on demand Section 73(1). A cheque as such is a bill of exchange. It is a bill payable on demand, and, subject to certain exceptions, the provisions of the act applicable to a bill of exchange payable on demand equally applies to a cheque, section 73(2). But unlike other bills, the drawee of a cheque must necessarily be a banker and this gives rise to a banker/customer relationship between the drawer and the drawee, with special rules to govern such relationship. Differences between a cheque and other bills 1. Cheques may be crossed and are usually crossed, but it is unusual to cross other bills 2. The rules relating to acceptance do not apply to cheques 3. We have seen that where a bill is not duly presented for payment, the drawer and endorser are discharged. But in the case of a cheque, a delay in presenting it for payment does not discharge the drawer or person on whose account it is drawn unless such delay is proved to have caused actual damage to him and the discharge is only to the extent of such damages, section 74. 4. A cheque is always drawn on a banker but a bill may be drawn on anyone including the bank 5. In the case of a bill, three days period of grace is allowed, while no grace is given in the case of cheques 6. The notice of dishonour of a bill is necessary but no notice is necessary in the case of a cheque Banker/customer Relationship

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The relationship between a banker and his customer is a matter of contract. The banker is in the position of a debtor and the customer in that of a creditor. The customer advances his money to the banker on the understanding that the latter will repay it on demand. Duties of the customer The duty owed by a customer to his banker is the duty of care. This duty usually arises when the customer is drawing a cheque. He is then bound to take usual and reasonable precautions to prevent forgery Duties of the banker A banker owes his customer a duty to take reasonable care in conducting the customers business. This includes the duty to honour the customers cheques and the duty not to pay of the customers account without authority.

THE LAW OF CONTRACT The law of contract is the foundation upon which the superstructure of modern business is built. In business transactions quite often promises are made at one time and the performance follow later. The law of contract lays down the legal rules relating to promises, their formation, their performance and their enforceability
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The nature of contract A contract is an agreement or promise which is legally binding or enforceable by law. A contract has been defined by Sir William Anson in the words, a legally binding agreement between two or more parties, by which rights are acquired by one or more to acts or forbearances on the part of the other or others. The law of contract imposes an obligation on every person to honour his legally enforceable promise, failure to do which renders him liable to compensate the injured party, or otherwise at torn for his conduct. What is intended here is to promote commercial relations. CLASSIFICATION OR TYPES OF CONTRACT 1. Voidable, Void and Unenforceable contracts Voidable contracts A voidable contract is an agreement enforceable by law at the option of one or more of the parties thereto but not at the option of the other or others. This happens when free consent is missing i.e. when the consent of a party to a contract is caused by coercion, undue influence, misrepresentation or fraud. The party whose consent is not free may either rescind the contract if he so desires, or elect to be bound by it. A voidable contract continues to be valid till it is avoidable by the party entitled to do so. EXAMPLE A promises to sell his car to B for Ksh 4,000/=. His consent is obtained by use of force. The contract is voidable a t the option of A. he may avoid the contract or elect to be bound by it. Void contract An agreement not enforceable by law is said to be void, creating no legal rights or obligations. It is void ab initio, as for example an agreement with a minor or an agreement without consideration. A contract when originally entered into may be valid and binding on the parties, e.g. a contract to import goods from a foreign country. It may subsequently become void, e.g. when a war breaks out between the importing country and the exporting country.

Unenforceable contract This is one which cannot be enforced in a court of law because of some technical defect such as absence of writing or where the remedy has been barred by lapse of time. The contract may be carried out by the parties concerned, but in the event of breach or repudiation of such a contract, the aggrieved party will not be entitled to the legal remedies.
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2. Express and implied contracts Where the offer or an acceptance of any promise is made in words, the promise is said to be express. An express promise results in an express contract. Am Implied contract is one which is inferred from the acts or conduct of the parties or course of dealings between them. Where the proposal or acceptance of any promise is made otherwise than in words, the promise is said to be implied. An implied promise results in an implied contract EXAMPLE There is an implied contract when A gets into a public bus that he shall pay the fare reserved.

3. Quasi contracts Strictly speaking, a quasi contract is not a contract at all. A contract is intentionally entered by the parties. A quasi contract on the other hand is created by law. It resembles a contract in that a legal obligation is imposed on a party who is required to perform it. It rests on the ground of equity that a person shall not be allowed to enrich himself unjustly at the expense of another. E.g. T a tradesman leaves goods at Cs house by mistake. C treats the goods as his own. C is bound to pay for the goods.

4. Unilateral and bilateral contracts Unilateral contract is a one sided contract. In this case, only one party has to fulfill his obligation at the time of the formation of the contract, the other party having fulfilled his obligation at the time of the contract or before the contract comes into existence. These unilateral contracts are contracts with executed consideration e.g. A permits B to carry his luggage and put in a bus. A contract comes into existence as soon as the luggage is placed in the bus. But by the time B has already performed his obligation, now only A has to fulfill his obligation i.e pays the reasonable charges to B. A bilateral contract is one in which the obligations on the part of both the parties to the contract are outstanding at the time of the formation of the contract. In this case, bilateral contracts are similar to executor consideration. E.g. C agrees to s ell his horse to D and D is bound to accept it and pay the price.

5. Special contracts and simple contracts A special contract is one under seal, signed and delivered by the parties. Therefore, it must be in writing, signed, sealed and delivered. They are essentially called formal
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contracts because their validity depends on the form which they are made. No consideration is however, necessary in the case of special contracts. Simple contracts are not under seal. They may be in writing or may be made by word of mouth. All simple contracts must be supported by consideration. Examples of contracts that must be evidenced by writing are contracts of guarantee and those for the sale of land. 6. Illegal contract An illegal contract is one which is prohibited by law or which contravenes a provision of law or one which is contrary to public policy. Where both parties are guilty of the illegality, they are said to be in pari delicto and non of them can enforce the contract. But where only one of the parties is guilty of the illegality, the contract may in certain circumstances be enforced by the innocent party. Thus an agreement to commit murder or assault or robbery would be illegal EXAMPLE B borrows Ksh 100,000/= from A and enters into a contract with an alien to import prohibited goods. A knows of the purpose of the loan. The transaction between B and A is collateral to the main agreement. It is illegal since the main agreement is illegal.

7. Contract of record A contract of record is either a judgement of a court or a recognizance. A judgement is an obligation imposed by a court upon one or more persons in favour of another or others. It does not rest upon agreement A recognizance is a written acknowledgement of a debt due to the government. It is usually met with in connection with criminal proceedings. E.g. when a person is arrested, he may be released on a promise to appear in a court or to be of good behaviour, subject to money penalty if he does not oblige.

8. Executed contract Executed means that which is done An executed contract is one in which both parties have performed their respective obligations.

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E.g. A agrees to repair a chair for B for Ksh 500. When A repairs and B pay the price, i.e. when both parties have performed their obligations respectively, the contract is said to be executed.

9. Executor contract Executory means that which remains to be carried into effect. An executor contract is one in which both the parties have yet to perform their obligations. E.g. A agrees to engage B as his servant from next month, the contract is executory.

10. Contracts Uberrimae Fidei (i.e. contracts of utmost good faith) Under these types of contracts one of the parties is under a duty to disclose all material facts because he has full knowledge, e.g. in an insurance contract, the insured must disclose all material facts to the insurer of which he is and the insurer is not aware. Failure to disclose amounts to breach of the contract relieving the party not in breach, of his own obligation under the contract. EXAMPLES i) Family settlements (where full disclosure is rigid) ii) iii) Contracts for s ale of land ( seller must disclose defects relating to title) Contracts of partnership (where every partner must exhibit utmost good faith in his dealings with the other partners)

ESSENTIALS OF A VALID CONTRACT 1) A) OFFER The following constitutes formation of a contract 1. Offer/proposal When one person signifies his willingness to do or to abstain from doing something with a view of obtaining the assent of that other to such act or abstinence, he is said to make a proposal or offer. -The person making the offer is known as the offerer, proposer or promise.

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-The person to whom the offer is made is called the offeree or proposee. -When the offeree accepts the offer, he is called the acceptor or promise. How an offer is made An offer may be express or implied. It is express when expressed in words spoken or written e.g. when A says to B, will you buy my car for Kshs 100,000, the is an express offer. It is implied when it is to be inferred from the conduct of the parties or the circumstances of the case, e.g. when a transport company runs a bus on a particular route, there is an implied offer by the transport company to carry passengers for a certain fare. The acceptance of offer is complete as soon as a passenger boards the bus. LEGAL RULES AS TO OFFER 1. Offer must be such as in law is capable of being accepted and giving rise to legal relationship. A social invitation, even if it is accepted, does not create legal relations because it is not so intended 2. Terms of offer must be definite, unambiguous and certain and not loose and vague. E.g. A says to B, I will sell you a car A owns three different cars. The answer is not definite. 3. Offer must be communicated for it to be complete otherwise there would be no acceptance. An acceptance of an offer in ignorance of the offer is no acceptance and does not confer any right on the accepter. Example S offered a reward to anyone who returns his lost dog. F brought the dog to S without having heard of the offer. Held, F was not entitled to the reward.

TYPES OF OFFERS (TENDERS) 1. Definite offer When tenders are invited for the supply of specified goods or services, each tender submitted is an offer

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The party inviting tenders may accept any tender he chooses and thus bring about a binding contract Example A invites tenders for the supply of 1000 bricks X, Y and Z submit the tenders, A accepts Xs tender. There is a binding contract between A and X.

2. Standing offer This is a continuing offer in the case where goods or services are required over a certain period. Example In Great Norther Rail V withanm, a railway company invites tenders f or certain iron activities which it might require over a year. Ws tender was accepted. He supplied goods to the railway company for sometime under the orders given by the latter. He refused to execute a n order given during the currency of the tender. Held, W could not refuse to supply goods within the term of the tender.

3. Cross offer When two parties make identical offers to each other, in ignorance of each others offer, the offers are cross offers. In such a case, the court will not construe open one as the offer and the other as the acceptance and as such there can be no conduced contract. Example A offers his property for sale to B and B without knowing of As offer, simultaneously offers to buy the same property from A. each of these offers is a cross offer in relation to the other.

4. Conditional offer This is one subject to a condition to be fulfilled first. This may be imposed by the offerer e.g. limited to a stated time or may be implied by law.

5. Counter-offer

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A counter offer is one which negates the original offer. Example A offers to sell his car to C for Kshs 250,000. C replies that he is willing to buy it for Kshs 200,000 but A refuses, C then purports to accept the original offer of Kshs 250,000. Cs wish to buy it for Kshs 200,000 amounted to a counter offer which extinguished the original offer of Kshs 250,000 hence no contract ensured. Here the original offer must be renewed to constitute a contract.

TERMINATION OF THE OFFER An offer may be terminated in one of the following ways 1. Revocation Withdrawal or revocation of an offer must be communicated to the offeree before acceptance. It may be made directly by the offeror himself or indirectly. Revocation is of no effect until it is actually brought to the notice of the offeree

2. By death of the offeror This happens when the offeree comes to know of it before acceptance. If he accepts an offer in ignorance of the death or insanity of the offeror the acceptance is valid.

3. By non fulfillment by the offeree of a condition precedent to acceptance E.g. S a seller, agrees to s ell certain goods subject to the condition that B the buyer, pays the agreed price before a certain date if B fails to pay the price by the date the offer stands revoked

4. By lapse of time It lapses if not accepted within prescribed time. If no time is prescribed, it lapses within a reasonable time

5. By a counter

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When an offer is accepted with some modification in the terms of the offer or with some other condition not forming part of the offer, such qualified acceptance amounts to a counter offer.

6. By change in law An offer comes to an end if the law is changed so as to make the contract contemplated by the offer illegal or incapable of performance.

7. By rejection An offeree may reject the offer expressly by words written or spoken or impliedly by a counter offer illegal a conditional offer

8. By notice This is done at any time before its acceptance is complete as against the offeror. E.g. at an auction sale, A makes the highest bid for Bs goods. He withdraws the bid before the fall of the hammer. Offer has been revoked before its acceptance

B) ACCEPTANCE When the person to whom the offer is made signifies his assent thereto the offer is and to be accepted. An offer when accepted becomes a promise. A contract emerges from the acceptance of an offer. Acceptance may be express or implied. It is express when it is communicated by words spoken or written or by doing some required act. It is implied when it is to be gathered from the surrounding circumstance or the conduct of the parties. E.g. at an auction sale, S is the highest bidder. The auctioneer accepts the offer by striking the hammer on the table. LEGAL RULES AT TO ACCEPTANCE To be legally effective, the acceptance must safely meet the following conditions; 1. This is in relation to all terms of the offer whether material or immaterial major or minor, otherwise there is no contract. Example
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A made an offer to B to purchase a house with possession from 25th July. The offer was followed by an acceptances suggesting possession from 1st August Held: there was no concluded contract

2. It must be communicated to the offeror There must be external manifestation of the intention to accept an offer as a mental resolve is not enough. Example A tells B that he intends to marry C, but tells C nothing of his intention. There is no contract, even if C is willing to marry A.

3. It must be according to the mode prescribed or usual and reasonable mode. Otherwise, the offeror, may intimate to the offer within a reasonable time that the acceptance is not according to the mode prescribed and may insist that the offer must be accepted in the prescribed mode only. If he does not inform the offeree, he is deemed to have accepted the acceptance Illustration A makes an offer to B and says, if you accept the offer, reply by wire. B sends the reply by post. It will be a valid acceptance unless A informs B that the acceptance is not according to the mode prescribed.

4. It must be given within a reasonable time If any time limit is specified, the acceptance must be given within that time. If no time limit is specified, it must be given within a reasonable time.

2) CONSIDERATION Consideration is a necessary element in the formation of a valid simple contract, subject to certain exceptions, an agreement made without consideration is numdum pactum (a nude contract) and is void. When a party to an agreement promises to do something he must get something in return, this something is defined as consideration.

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Example A agrees to sell his car to B for Ksh 100,000. Car is the consideration for B and price is the consideration for A. CONSIDERATION DEFINED when at the desire of the promisor or any other person has done or abstained from doing, or does or abstains from doing or promises to do or to abstain from doing something, such act, or abstinence or promise is called as consideration for the promises NEED FOR CONSIDERATION The reason why the law enforces only those promises which are made for consideration is that gratuitous or voluntary promises are often made reality and without the deliberation. The law looks with disfavour upon an exchange of promises which would result in one other party obtaining something for nothing LEGAL RULES AS TO CONSIDERATION i) It must move at the desire of the promisor. If it is done at the instance of the third party or without the desire of the promisor, it will not be a good consideration. Example A saves Bs goods from fire without being asked to do so. A cannot demand for his services ii) It may move from the promise or any other person. This means that as long as there is consideration for a promise it is immaterial who has furnished it. But the stranger to consideration will be able to sue only if he is a party to the contract. It may be an act, abstinence or forbearance or a return promise. This has already been discussed. It may be past, present or future When consideration by a party for a present promise was given in the past, i.e. before the date of the promise, it is said to be past consideration. Example A renders some services to B at the latters desire. After a month B promises to compensate A for the services rendered to him. It is past consideration. A can recover the promised amount. 3) CAPACITY TO CONTRACT

iii) iv)

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Parties to the contract must be competent to contract. A party is said to be competent if he is of sound mind, is of the age of majority and is not disqualified from contracting by any law to which he is subject. The following persons are incompetent to contract Minors Persons of unsound mind and Persons disqualified by any law to which they are subject.

a) MINORS A minor is a person who has not attained the age of 18. The law protects minors against their own inexperience and against the possible improper design of those more experienced. The judges are their counselors The jury their servants And law is their guardian However, the law should not cause unnecessary hardship to persons who deal with minors. MINORS AGREEMENT The position as regards them may be summed up as follows i) ii) An agreement with or by a minor is void and inoperative abinitio He can be a promise or a beneficiary. In capacity of a minor to enter into a contract means incapacity to bind him by a contract. There is nothing that debars him from becoming a beneficiary Such contracts may be enforced at his option, but not at the option of the other party. The law does not regard him as incapable of accepting a benefit. Example If a minor, under a contract of sale delivers goods to the buyer, he is entitled to maintain a suite for the recovery of price. Minors liability for necessaries A minor is liable to pay out of his property for necessaries supplied to him or to anyone who is legally bound to support. This does not arise out of contracts but out of quasi-contracts. It is only minors property liable and not the minor personally

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The term necessaries means goods suitable to the condition in life of such infant or other person and to the actual requirement at the time of sale and delivery. Necessaries include a) Necessary goods These are not restricted to articles which are required to maintain a bare existence such as bread and clothes, but include articles which are reasonable necessary to the minor having regard to his situation in life.

b) Services rendered Certain services such as education, training for a trade, medical advice, legal advice etc are all necessaries. As regards contracts which are not for the supply of necessaries but which are undoubtedly beneficial to the minor, the private estate of the minor is liable.

c) Loans incurred to obtain necessaries A loan taken by a minor to obtain necessaries also binds him and is recoverable by the lender as if he himself has supplied the necessaries. But the minor is not personally liable. It is only his estate which is liable for such loans.

b) PERSONS OF UNSOUND MIND This is one of the conditions of competencies of parties to a contract A person is said to be of sound mind for the purpose of making a contract if at the time when he makes it, he is capable of understanding it and forming a national judgement as to its effect upon his interests. A person, who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind. A person who is usually of sound mind, but occasionally of unsound mind may not make a contract when he is unsound mind Example

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A patient in a lunatic asylum, which is at intervals of sound mind, may contract during those intervals Soundness of minds of a person depends on two facts: i) His capacity to understand the contents of the business concerned ii) His ability to form a national judgement as to its effect upon his interests If a person is incapable of both, he suffers from unsoundness of mind whether a party of contract is of unsound mind or not is a question of fact to be decided by court. Contracts of persons of unsound mind i) Lunatics He is a mentally deranged person due to some mental strain or other personal experience. He suffers from intermittent intervals and insanity. He can enter into contracts during the period when he is of sound mind. ii) Idiots He is one who has completely lost his mental powers. He does not understand anything. Idiocy is permanent whereas lunacy denotes periodical insanity with lucid intervals. An agreement of an idiot, like that of a minor is void. iii) Drunken or intoxicated persons They suffer from temporary incapacity to contract, i.e. at the same time when so drunk or intoxicated that he is incapable of forming a rational judgement. The position of a drunken or intoxicated person is similar to that of a lunatic Agreement entered into by persons of unsound mind is void. However, they are liable for necessaries supplied to them or to anyone whom they are legally bound to support. Even then, no personal liability attaches to them. It is only their estate which is liable. OTHER PERSONS Alien enemies: foreign sovereigns, their diplomatic staff and accredited representatives of foreign states. Corporation Insolvents Convicts

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4) FREE CONSENT It is essential to the creation of a contract that the parties are ad idem. All agreements are contracts if they are made by the free consent of the parties. Consent means acquiescence or act of assenting to an offer. Two or more persons are said to consent when they agree upon the same thing in the same sense. Free consent: consent is said to be free when its not caused by 1. Coercion 2. Undue influence 3. Fraud 4. Misrepresentation 5. Mistake These are the vitiating factors or element in a contract. When there is no consent, there is no contract. Salmond describes it as an error in consensus. 1. Coercion (duress) Coercion is said to be employed when a person is compelled to enter into a contract by the use of force by the other party or under a threat. It is the committing or threatening to commit any act forbidden by the penal code. This threat may even proceed from a stranger. The intension of the person employing coercion should be to cause a person to enter into an agreement. Coercion includes fear, physical compulsion and menace to goods. For example a) A threatens to shoot B if he does not give him one million shillings. B gives him one million. This is coercion b) A threatens to kill B if he does not lend 10,000 Kshs to C, B agrees to lend the amount to C, this is coercion. Effects of coercion When consent to an agreement is caused by coercion, the agreement is a contract voidable at the option of the party whose consent was so caused. The person or the party relying on the consequence of coercion must prove that coercion was actually employed.

2. Undue influence

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A contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to dominate the will of another where; a) He holds real or apparent authority over the other b) He stands in a fiduciary relation to the others c) He makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, mental or bodily distress. Effects of undue influence When consent to an agreement is obtained by undue influence, the agreement is a contract voidable at the option of the party whose consent was so obtained. And any such contract may be set aside either absolutely or if the party who is entitled to avoid it has received any benefit there under upon such terms and conditions as the court may deem just or equitable Relationships which raise presumptions of undue influence are a) Parent and child b) Trustee and beneficiary c) Religious advisers and disciples d) Guardian and ward e) Solicitor and client f) Doctor and patient There is no presumption of undue influence in the following cases which will specifically require proof thereof:a) Husband and wife b) Landlord and tenant Distinction between coercion and undue influence a) Under coercion, the consent is given under the threat of a n offence. Whereas under undue influence, consent is given under moral influence b) Coercion is mainly of a physical character whereas undue influence of moral character c) Under coercion there is intention of causing a person to enter to enter into an agreement, whereas under undue influence, the influencing party uses its position to obtain an unfair advantage over the other party.
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d) Coercion involves a criminal act, whereas undue influence does not involve a criminal act.

3. Fraud Fraud may be defined as an intentional deliberate or willful misrepresentation with intent to deceive or defraud the other party. Fraud exist only when i) A false representation has been made Knowingly Without belief in its truth Recklessly not caring whether it is true or false and the maker intended the other party to act upon it

ii) There is concealment of a material fact or that there is a partial statement of a fact in such a manner that the withholding of what is not stated makes that which is stated false The intension of the party making fraudulent misrepresentation must be to deceive the other party to the contract or to induce him to enter to enter into the contract Essential elements of fraud 1. There must be a representation or assertion and it must be false 2. The representation must relate to a material fact which exists now or existed in the past but not a mere option or hearsay. For example; A sells some spoons to B and makes the following statements The spoons are as good as that of X. this is a statement of fact. The spoons have as much silver in them as that of X. this is a statement of fact. The spoons are the best available in the market for the price. This is a puffing statement and is an opinion.

Illustration

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A while negotiating with B for the s ale of certain goods tells him that the goods cost him Ksh 2,000. This is a statement of fact. But if he states that the goods are worth Kshs 2,000, this is a statement of opinion. The consequences (effects) of fraud A contract induced by fraud is voidable at the option of the party defrauded. Until it is avoided, it is valid The part defrauded has the following remedies 1. He can rescind the contract within a reasonable time, before a third party acquires an interest in the property for value. F or example, A purchases certain goods from B by making a misrepresentation. A sells the goods to X before B voids the contract. B losses the right to a void in the contract. 2. He can insist on the performance of the contract on the condition that he shall b put in the same position in which he would have been if the representation made had been true 3. He can sue for damages. Distinction between fraud and misrepresentation 1. In misrepresentation there is no intention to deceive the other party whereas in fraud the intention is to deceive the other party. 2. In case of misrepresentation, the person making the suggestion believes it to be true. Whereas in the case of fraud, he does not believe it to be true. 3. In a misrepresentation, the aggrieved party can rescind the contract or sue for restitution and there can be no suit for damages. Whereas in fraud, the remedy available to the aggrieved party is not limited 4. In case of misrepresentation, the aggrieved party cannot avoid the contract if it had the means to discover the truth with ordinary diligence. Whereas in case of fraud where there is active concealment the contract is voidable even though the aggrieved party had the means of discovering the truth with ordinary diligence.

4. Misrepresentation When one party makes a statement of fact in the course of negotiations with a view to inducing the other party to enter into a contract, he is said to make a representation. The statement may be expressed or implied. A representation when wrongly made, either innocently or intentionally is a misrepresentation. Thus, misrepresentation may be defined as a false statement which the person making it honestly believes to be true, or which he does not know to be false. It includes non disclosure of a material fact or facts without any intent to deceive the other party. For example
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In Derry vs Peek A company prospectus contained a representation that it had statutory powers to run its tramways by steam provided the consent of the government authority was obtained. The directors issued a prospectus stating therein that the company had the right to use steam power. They honestly believed that the permission for use of steam power would be granted. The permission was refused. The company was then wound up. It was held that the directors were guilty of misrepresentation and not fraud. The requirements of misrepresentation 1. It must be a representation of material fact not a mere expression of opinion 2. It must be made before the conclusion of a contract with a view to inducing the other party to enter into a contract. 3. It must be made with the intention that it should be acted upon by the person to whom it is addressed 4. It must actually have been acted upon and must have induced the comfort 5. It must be wrong but the person who made it honestly believed it to be true. 6. It must be made without any intention to deceive the other party 7. It need not be made directly to the plaintiff. It can be made through a third party. Consequences of misrepresentation 1. The aggrieved party can avoid or rescind the contract 2. The aggrieved party can accept the contract but insist that he shall be placed in the position in which he would have been if the representation made had been true

5. Mistake This is an erroneous belief about something. It may be a mistake of law of fact, ignorantia facti doth excuse, ignorant juris non excusat It is well known maxim which means that ignorance of facts may be excused but ignorance of law has no excuse. Mistake of law of a foreign country is treated as a mistake of fact. Mistake of fact
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A mistake of fact may be: A bilateral mistake A unilateral mistake

1. Bilateral Mistake This is where both the parties to the agreement are under a mistake as to a matter of fact essential to the agreement. In such a case, the agreement is void but the following two conditions must be fulfilled 1) The mistake must be mutual. For example A agrees to purchase Bs mothers car which was lying in Bs garage. Unknown to either party, the car and the garage were completely destroyed by fire a day earlier. 2) The mistake must relate to a matter of fact essential to the agreement. As to what facts are essential in an agreement, will depend upon the nature of the promise in each case

2. Unilateral Mistake This is where only one of the parties is under mistake as to a matter of fact. In this case, the contract is not voidable because a unilateral mistake is not allowed as a defense. For example, J was the highest bidder at an auction sale of a public plot. At the time when he makes his bid, he believed that a certain field was a part of the plot offered for sale. The field was however held a separate lease from a third party. There was no misdescription or ambiguity- in the particulars as to what was included in the plot. It was held that J was bound to the contract. Exceptions The general rule is that a unilateral mistake is generally not allowed as a defense, in avoiding a contract.

5) LEGALITY OF OBJECT
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An agreement is a contract if it is made for a lawful consideration and with a lawful object. Every agreement of which the object or consideration is unlawful is void.

When consideration or object is unlawful 1. If it is forbidden by law when it is punishable by criminal law of the country. And in this case, the agreement is void. For example, A promised to obtain for B an employment in the public service and B promises to pay Kshs 50,000 to A. the agreement is void as consideration for it is unlawful. 2. If it is of such a nature if permitted it will defeat the provisions of any law. For example, an agreement by a debtor not to raise the plea of limitation is void because in this case, even though it is not directly forbidden by law it will defeat the provisions of any law. 3. It is fraudulent. Thus an agreement in fraud of creditors with a view to defeating their rights is void.

6) AGRREMENT OPPOSED TO PUBLIC POLICY An agreement is said to be opposed to the public policy if it is harmful to the public welfare and such an agreement is unlawful. These types of agreements include the following; 1. Agreement of trading with enemy. Agreement entered into in times of war are illegal on the ground of public policy 2. Agreement to commit a crime. The court will not enforce such an agreement because it is opposed to the public policy. 3. Agreements which interfere with administration of justice 4. Agreements in restraint of legal proceedings. An agreement which wholly or partially prohibits any party from enforcing his rights under or in respect of any contact is void to extent 5. Trafficking in public offices and titles. Such agreements if enforced would lead to inefficiency and corruption in public life. For example, A promises to obtain an employment to B in public service and B promised to pay A. Kshs 10,000. This agreement is against public policy. 6. Agreement tending to create interests opposed to duty. For example, an agreement by a newspaper proprietor not to comment on the conduct of a particular person is unlawful being opposed to public policy
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7. Agreements in restraint of parental rights. A father and his absence the mother is the guardian of his or her minor child. This right of guardianship cannot be bartered away by any agreement. If any such agreement is entered into, it shall be void on the ground of public policy 8. Agreement restricting personal liberty. These agreements are against public policy. For example, a debtor agreed with his money-lender that he would not without the lenders written consent leave his job, or borrow money or dispose of his property or change his residence. It was held that agreement was void.

DISCHARGE OF CONTRACT This means termination of contractual relationship between the parties. When the rights and obligations created by a contract come to an end, the contract is said to be discharged. The following are the modes of discharging a contract. 1. Performance\; this is the doing of that which is required by a contract. This happens when the parties to a contract perform their obligations within the prescribed time. 2. Agreement or consent; parties may agree to terminate a contract initially entered into either expressly or impliedly. The following are the various forms of discharge by mutual agreement i) Novation Where a new contract is substituted for an existing one between the same parties or a contract between two parties is rescinded, in consideration of a new contract, being entered into on the same terms between one of the parties and the third party. For example, A owes to B under contract. It is agreed between A, B, and C that B shall accept C as his debtor instead of A. the old debt of A to B is at an end and a new debt from C to B has been contracted.

ii) Rescission This takes place where all or some of the terms of the contract are cancelled either by mutual consent of the parties or where one party defaults in performance of his duty. For example, A promises to supply certain goods to B six months after that date. by that time, the goods go out of fashion. A and B rescind the contract

iii) Alteration

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This may take place when one or more of the terms of the contract is/are altered by the mutual consent of the parties-to the contract. In such a case, the old contract is discharged

iv)Remission This is accepting a lesser fulfillment of the promise made. For example, accepting of a lesser sum than what was contracted for in discharge of the whole of the debt.

v) Waiver This takes place where the parties shall no longer be bound by the contract. This amounts to a mutual abandonment of the rights by the parties to the contract.

vi)Merger This takes place where an inferior right accruing to a party under a contract merges into a superior right accruing to the same party under the same or some other contract. For example, P holds a property under a lease. He later buys the property. His right as a lease merges into his right as an owner.

3. Impossibility of performance An agreement to perform impossibility is void ab initio. This rule is based on the following:a) Iex non cogit ompossibilia. That is to say that the law does not recognize what is impossible. b) Impossibilia nulla obligato est. that is to say, what is impossible does not create an obligation Categories of Impossibility

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i)

Impossibility at the time of agreement This is known as precontractual or initial impossibility. It may be absolute impossibility when it is known to the parties, In which case it is void ab initio. When it is unknown to the parties, it is void on the ground of mutual mistake. For example, A sold to B certain goods supposed to be on a voyage. The goods had ceased to exist due to perils of the sea. It was held that the contract was void.

ii)

Impossibility arising subsequent to the formation of the contract This is also known as post-contractual or supervising impossibility. In such a case, the contract becomes void when the act becomes impossible or unlawful. This is an excuse for non performance. A contract is discharged by supervising possibility in the following cases:a) Destruction of the subject matter of the contract: for example A contracted to sell a specific quantity of potatoes to be grown in his farms. The crop largely failed. It was held that the contract was discharged b) Non existence or non-occurrence of a particular state of things. Frustration of contract: for example, A and B contract to marry each other. Before the time fixed for the marriage, A, goes mad. The contract becomes void. This kind of failure is often referred to as frustration of contract. c) Death or incapability for personal services: This is when performance depends on personal skill or qualification. For example, an artist undertook to perform at a concert at a certain price. Before she could do so, she was taken seriously ill. It was held that she was discharged due to illness. d) Change of law or stepping in of a person with statutory authority. This discharges the contract. For example, D leased some land to B and agreed to erect a building on the adjoining land. The adjoining land after some time was acquired under statutory power by a railway company, which built a railway station on it. It was held that D was excused from performing the contract. e) Outbreak of war: Contracts with alien enemies at war are void. Contracts entered into before the outbreak of war re suspended during the war and may be revived after the war is over. But in the following cases, the contract cannot be discharged on the basis of supervising impossibility. i) ii) iii) Difficult of performance Commercial impossibility e.g. when prices hike suddenly Impossibility due to failure of a third person on whose work the promisor relied
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iv) v)

Strikes, lockouts and civil disturbances Failure of one of the objects

4. Lapse of time A contract should be performed within a limited period. Otherwise, the contact is terminated if the promise does not take action within that period.

5. Operation of law This happens independently of the wishes of the party. This includes discharge by:a) Death b) Merger c) Insolvency d) An unauthorized alteration of the term of a written agreement without consent of the older party e) Rights and liabilities becoming vested in the same person

6. Breach of contract This happens when a party without lawful excuse fails to perform his part of the contractual obligation. It confers a right of action for damages on the injured party. REMEDIES FOR BREACH OF CONTRACT Where there is a right, there is a remedy. A right accruing to a party under a contract will be of no value if there were no remedies to enforce that right in a law court in the event of its breach. When a contract is broken, the injured party has one or more of the following remedies:1. To cancel a contract When one party breaks a contract, the other party may decide to treat the contract as rescinded and refuse further performance. He is the absolved of his entire obligation under the contract. For example, A promised to supply B ten bags of cement on a certain day. B agrees to pay the price after the receipt of the goods. A does not supply the goods. B is discharged from liability to pay the price. 2. Damages-compensation of loss suffered
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Damages are monetary compensation awarded to the injured party by court for the loss or injury suffered by him for the breach of a contract. Damages are meant to restore the party to his original position before the breach. The law of damages is founded in the following judgement; Case: Haddley Vs Baxendale Facts: In this case Xs mill was stopped by breakdown of a shaft. He delivered the shaft to Y a common carrier to be taken to the manufacturer to copy it and make a new one. X did not make known to Y that delay would result to loss of profits. By some neglect on the part of Y, the delivery of the shaft was delayed on transit beyond a reasonable time so that the mill was idle for a larger period than otherwise would have been the case- had there been no breach of the contract of carriage. Held: Y was not liable for loss of profits during the period of delay. As the circumstances communicated to Y did not shoe that a delay in the delivery of the shaft would entail loss of profits to the mill. Types of damages a) Ordinary damages These are damages which actually arise in the usual course of things from the breech of a contract,. For example, a contract to sell and deliver farm wheat to B at Ksh 800 per quintal the price to be paid at the time of delivery. The price of wheat rises to Ksh 1000 per quintal and A, refuses to sell the wheat. B can claim damages at the rate of Ksh 200 per quintal. b) Special damages These are damages which can only be claimed if the other party was notified of the probable consequence in case of breach. c) Vindictive or exemplary damages They are punitive in nature and are only awarded by courts in exceptional circumstances. This is because the law of contract is concerned with compensation for loss suffered and not punishment. d) Nominal damages Where the injured party has not suffered any loss by reason of the breach of a contract the court may award a very nominal sum as damages. e) Liquidated damages These represent a sum fixed or ascertained by the parties in the contract which is fair and genuine pre-estimate of the probable loss that might ensue as a result of the breech.

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3. Quantum meruit (as much as earned or as much as merited) A right to sue on quantum meruit arises where contract parties performed by one party has become discharged by the breach of contract by the other party. This right is founded on an implied promise by the other party arising from the acceptance of benefit by that party.

4. Specific performance In certain case the court may direct the party min breach of a contract to actually carry out the promise-exactly according to the terms of the contract. This is called specific performance of the contract. These are instances where:a) The Act agreed to be done is such that compensation in money for its nonperformance is not an adequate relief. b) There is no standard for ascertaining the actual damage caused by the nonperformance of the contract c) It is probable that the compensation in performance of the act agreed to be done

Specific performance will not be granted where a) Damages are inadequate remedy b) The contract is not certain or is inequitable to either party c) The contract is in its nature revocable d) The contract is made by trustees in breach of their trust e) The contract is of a personal nature. For example, a contract to marry f) The contract is made by a company in excess of its power as laid down in its Memorandum of association g) The court cannot its carrying out e.g. a building contract.

5. Injunction This is a mode of securing the specific performance of the negative terms of a contract. Where a party is in breach of a negative term of a contract, that is to say where he is doing something which he promised not to do, the court may, by issuing an order, restrain him from doing what he promised not to do. Such an order of the court is known as an
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injunction. For example, W agreed to sing at Xs theater during a certain period and to sing nowhere else. Afterwards, W made a contract with Z to sing at another theater and refused to perform the contract with L. it was held that W would be restrained by injunction.

QUANTUM MERUIT When a person has done some work under a contract and the other party repudiates the contract or some events happen which makes the further performance of the contract impossible, than the party who has performed the work, can claim remuneration for the work he has already done.

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